Written by Cobus Mulder and Eugene Viljoen – 31 August 2015

It is a common misconception that commercial activities in West African countries are not strictly governed, specifically when it comes to labour related aspects. The Republic of Congo (“RoC”) is no exception to such misconception. Non – compliance with the legislative requirements set out in numerous codified laws and regulations, may have severe negative financial and reputational impacts on companies operating in the RoC.

In this edition we will focus on the high level legislative framework governing labour related aspects, with specific focus on international companies envisaging to operate in the RoC.

Legislative framework

The legislative framework governing labour related aspects in the Republic of Congo mainly consists of the following:

• The Labour Code law 45 – 75 of 15 March 1975 as modified by law 6 – 96 of 6 March 1996 (“Labour Code”);
• Industry specific collective agreements (“Collective Agreement”); and
• Company specific internal rules (“Internal Rules”).

The Labour Code sets out the provisions which regulate aspects such as:

• Employment agreements;
• Collective Agreements;
• Sub – contracting;
• Remuneration;
• Conditions of employment; and
• Workplace safety and security.

The Collective Agreement determines and regulates the operational aspects of a company including, but not limited to, the following:

• Wages applicable to each professional category of employment;
• Methods of implementation and rates in respect of overtime, night work and public holidays;
• Duration of trial – and – notice periods;
• Dismissal allowances;
• Travel allowances and subsistence allowances; and
• Dispute resolution procedures.

The Internal Rules are established by an employer on its own accord, bearing in mind that the Internal Rules may not deal with or contain provisions pertaining to remuneration.

Noteworthy information for international companies operating in the RoC

The definition of an employee, as set out in Article 2 of the Labour Code, legally determines that all employees, regardless of nationality, who are remunerated for professional services conducted under the supervision and authority of an employer in the RoC, are considered as employees under the Labour Code.

Practically, this implies that an expatriate’s employment contract is subject to all the provisions of the Labour Code, Collective Agreement and Internal Rules, which may be applicable to a local employee and therefore such expatriate is entitled to the same rights and remedies as local employees.

The aforementioned becomes an important consideration in a number of instances, such as, determining the type of employment contract to be offered to an expatriate. For example, should an employer decide to employ an expatriate on a fixed term employment contract, the employment contract will be subject to the provisions of article 32 of the Labour Code.

Article 32 of the Labour Code determines that a fixed term employment contract may not exceed a period of 24 (twenty four) months and shall only be renewed once for a period less than or equal to the initial duration. In all cases, the total duration may not exceed 24 (twenty four) months, which duration shall be calculated with the inclusion of all renewals.

Should an employer not adhere to the aforementioned provisions, the fixed term employment contract shall be legally considered as a permanent employment contract, which entitles the expatriate to claim all rights and benefits due to a local permanent employee.

As stated, this is merely an overview of the legislative framework governing labour related aspects in the RoC. Should you require any further information or require a more detailed analysis of a specific aspect relating to labour activities in the RoC, please feel free to contact the writers hereof.

Cobus Mulder
cobus.mulder@eoh.co.za
+27 82 928 3819

Eugene Viljoen
eugene.viljoen@eoh.co.za
+27 84 506 5027