Abstract
Section 58 of the U.A.R. Labour Code provides:
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“The employer shall grant to every worker who has spent one complete year1 in his service an annual leave of fourteen days with full wages.
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“The leave shall be increased to twenty one days when the worker shall have spent ten continuous years in the service of the employer.”
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“The worker shall not renounce his leave.”2
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References
Section 10 of the Code provides that “unless otherwise expressly provided a year shall for the purpose of this Code consist of 365 days and a month shall consist of 30 days.” This is a new provision in the Labour Code. Section 3 of the Civil Code provides to the same effect.
Cf. sections 13(1), 39, 47, 45 (1, a), 39(1), 35(1) and 111 & 113 & 121, of the Iraqi, Kuwaiti, Qatari, Jordanian, Lebanese, Libyan and Tunisian Labour Codes, respectively, and section 47 of the Saudi Regulations; vide the Labour Survey of North Africa, pp. 235-6 and 238, for Algeria and Morocco, respectively; and vide the French Act. No. 56-332 of 1956 (reference thereto is in the I. & L., Vol. 15, 1956, pp. 524-6, in which it is stated that the said Act supplemented the Act of 20 June 1936).
Cf. the provisions in section 6(e) of the Adenese Ordinance. Section 31(a) of the Bahraini Labour Code is more similar to section 85(1) of the U.A.R. Labour Code. In England the worker’s entitlement to annual leave is contractiual, unless it is prescribed by a Wages Regulation Order, issued under the Wages Councils Act of 1959 (Cf. section 9 of the Sudanese Wages Tribunals Ordinance, which was modelled on the English Wages Councils Act of 1945); vide Samuels, pp. 37-8; Batt, p. 168; and I. & L., Vol. 22, 1959, p. 193.
Section 31(b) of the Bahraini Labour Code expressly provides to this effect, much the same as section 61 of the U.A.R. Labour Code, to be presently quoted.
The submission is based on the lack of any relevant provision in the Sudan Ordinance, whereas sections 10(2) and 25 of the Ordinance deprive the worker of his notice of termination and of his termination gratuity, respectively (vide Chapters VI and VII, for these two sections, respectively). Vide Batt, p. 168, for the prevailing view in England, that “where there is a right to a holiday once a year, if the servant is dismissed by notice or otherwise rightfully before the end of the year in which the holiday is earned, he is not entitled to any pay or damages in respect of the loss of the holiday, since his absolute right to the holiday only accrues or matures when that year is completed.”
Murad, p. 485; Habeeb, p. 349; Zaki, p. 285 (though not expressly); El-Fakahani, Book I, Vol. II, p. 193; and Faheem, p. 80, give a negative answer. Those who give an affirmative answer, are Badawi, K.M., p. 208 and p. 215, where he quotes as an authority, Cairo Labour Court in Case No. 2585 of 1952; Rashed and Hashem, p. 90; Badawi, Z., Vol. 1, pp. 80 and 82; and Naguib and Bakr, p. 97.
Vide in support, Cairo Court of Cassation in case No. 1445 of 1955 (in El-Fakahani, Book I, Vol. II, p. 230); and the same Court in case No. 265 of 1956 (in El-Hawwari, p. 122); Cairo Labour Court in case No. 6252 of 1959 (Ibid., p. 123); and the same Court in case No. 2585 of 1952 (in Badawi, K.M., p. 215); and Cairo Court of Arbitration in dispute No. 143 of 1954 (in Habeeb, p. 349).
The Explanatory Note to Law 317 of 1952, whose section 20 is the predecessor of section 58 of the Labour Code, says that the section was based on the international convention for paid annual leaves. the convention in question is the Holidays with Pay Convention, No. 52 of 1936: vide Article 2(1) thereof, whose wording is almost identical with the U.A.R. provision, vide also para. 1(3) of the Holidays with Pay Recommendation No. 47 of 9136.
Cf. the provisions in sections 18, 31, 45(2), 35(3) and 118 and 125, of the Iraqi, Qatari, Jordanian, Libyan and Tunisian Labour Codes, respectively. Section 31(b) of the Bahraini Labour Code contains a similar provision; so the influence of the U.A.R. is apparent. Vide also Article 5(c) of the Holidays with Pay (Agriculture) Convention No. 101 of 1952.
These are the first four writers, mentioned in footnote 6, supra.
On the other hand, there is no division of opinion, on the worker’s entitlement to the fourteen days of leave for the first year of service, once it is completed.
Vide Cairo Court of Appeai in appeal No. 253 of 1956; and Cairo Court of Cassation in the two cases Nos. 2504 of 1953 and 103 of 1954 (all three in Habeeb, p. 350); vide also Murad, p. 485; Zaki, p. 28; Rashed and Hashem, p. 90; and Faheem, p. 81. Cf., however, Article 6 of the I.L.O. Convention No. 52 of 1936, and Article 9 of Convention No. 101 of 1952, both of which disentitle the worker to his final leave, if he is justifiably dismissed by the employer. the Explanatory Note to Law 317 of 1952, whose section 23 is the predecessor of section 61 of the Labour Code, attributes the said view to “the accrual of the right therein to the worker earlier than the dismissal.” It is submitted that the better and clearer justification of the view is that payment for the annual leave is a wage, of which the worker cannot be deprived (vide Section I of Chapter IV, supra). This also is the ground of entitlement of the heirs of a deceased worker to the payment in lieu of the leave, which was due but he did not take before his death. Those who support the said entitlement of the heirs are Badawi, K.M., p. 206; and Faheem, p. 81. For contrary decisions (on the ground that the death of the worker does not amount to his leaving the employment, as prescribed by section 61, because the leaving of employment presupposes that the worker is alive, so as to be able to leave the employment), vide the two last-mentioned cases, in footnote 49 to Chapter IV, supra. Those who support this view are El-Fakahani, 1959 Supplement, p. 168 (who seems to have reversed his previous stand on this issue: vide his Book I, Vol. II, p. 193); and Rashed and Hashem, p. 90. It is submitted that these writers, together with the said decisions, are wrong, because they adopt a very narrow and too literal an interpretation, which results in an unwarranted prejudice to the worker, and because the payment in lieu of the leave, is a wage, which cannot be denied to those who succeed the worker. on the other hand, the distribution of the payment in lieu among the heirs, should be according to the Moslem Shari’a law, because it is a wage (vide Section III, G, of Chapter IV, supra). So the advocacy by Butros and Rajab, p. 314, of the application of the Shari’a Law, only after the exhaustion of the dependants as prescribed by section 82 of the Labour Code (re distribution of the termination gratuity: vide Chapter VII, infra), is, it is submitted, not correct.
Vide Section II, A, 2, of Chapter VI, infra.
I. & L., Vol. 4, 1950, p. 296, re the similar position in France. So it is submitted that the contrary U.A.R. decision of the Alexandria Court of Appeal in appeal No. 52 of 1955 (in El-Fakahani, Book I, Vol. II, p. 232), is wrong. the position should also be the same in the Sudan, because the worker’s entitlements to the notice and the holidays, arise from the two independent legal provisions in sections 10 (vide Chapter VI, infra) and 22 of the Sudan Ordinance.
Vide Cairo Court of Appeal in appeal No. 1142 of 1955 (in El-Fakahani, Book I, Vol II, p. 200); and Cairo Labour Court in case No. 5483 of 1959 (in El-Hawwari, p. 124); vide also Badawi, K.M., p. 208; El-Fakahani, 1959 Supplement, p. 162; Butros and Rajab, p. 313; Habeeb, p. 349; Naguib and Bakr, p. 94; and Rashed and Hashem, p. 85.
Vide Cairo Court of Cassation in case No. 1911 of 1953; and El-Geeza Court of Cassation in case No. 322 of 1956 (both in El-Fakahani, Book I, Vol. II, pp. 202 and 201, respectively); cf., however, para. (1)2 of the I.L.O. Recommendation No. 47 of 1936.
Vide the definition of wages in Section I of Chapter IV, supra; and vide Article 3 of Convention No. 52 of 1936; and Article 7 of Convention 101 of 1952. So it is submitted that the High Court of Appeal decision in the U.A.R., in appeal No. 11 of 1959 (in El-Hawwari, p. 124), is wrong, in excluding the cost of living allowance, from the calculation of payment for the leave. For piece-rate workers, section 9 of the U. A.R. Labour Code provides that “the average daily wages for workers other than those who are paid by the month the week or the day shall be calculated on the basis of the average sums received by the worker for the actual days of work during the preceding year”-cf. the provisions in sections 29, 34, 19(2), 57 and 35(3) of the Kuwaiti, Qatari, Jordanian, Lebanese and Libyan Labour Codes, respectively, and section 13(1) of the Saudi Regulations; and cf. para. 4 of the I.L.O. Recommendation No. 47 of 1936. In Sudan there is no equivalent provision. Reference to the English Common Law, reveals that” there are no legal principles,” which can readily be applied, though the “average earnings in the past over a period of six or twelve months,” are usually taken as the basis of calculation: vide O. Kahn-Freund, in p. 276 of the British Legal Papers.
Section 22(3) of the Sudan Ordinance provides that, “if a public holiday or holidays (other than the weekly holiday) falls within the period of the employed person’s holidays with pay under this section, the period of such public holiday or holidays shall not be excluded in calculating the period of holidays with pay to which the employed person is entitled under this section”; cf. section 31(f) of the Bahraini Labour Code. Vide section 14(2) of the Sudan Ordinance, as amended in 1963, for the weekly rest-day.
The sick leave is prescribed by section 21 of the Ordinance-vide the section quoted in Section II of the present Chapter, infra.
Cairo Court of Cassation in case No. 1869 of 1954 (in El-Fakahani, Book I, Vol. II, p. 232); this is in line with Article 2(3, a) of the I.L.O. Convention No. 52 of 1936; section 35(1) of the Libyan Labour Code expressly excludes public holidays from the calculation of the annual leave; section 45(1, a) of the Jordanian Labour Code expressly provides to the contrary.
Those who support the exclusiveness of the annual leave from the sick leave the public holidays and the weekly rest-days, are El-Fakahani, Book I, Vol. II, p. 191 (vide also his 1959 Supplement, p. 176); Murad, p. 484; Rashed and Hashem, pp. 87 and 90; and Faheem, pp. 79, 85 and 87. Badawi, Z., Vol. I, p. 80, is against the exclusion of the weekly rest-days; and Naguib and Bakr, p. 99, are against the exclusion of the public holidays. Vide section 116 of the Tunisian Labour Code, which impliedly excludes weekly rest-days; and Article 5(d) of Convention 101 of 1952, which expressly does so.
Vide sections 118 and 119 of the Code, for weekly rest-days in the commercial and other establishments, respectively.
Vide the section quoted in Section V of Chapter II, supra. This presumably also covers the cases of teachers, whose summer leave is usually much longer than the statutory leave, which as a result, they cannot request as additional leave: vide the Cairo Labour Court in case No. 4384 of 1959 (in El-Hawwari, p. 125).
Section 23 provides: “Nothing in sections 21 and 22 shall be construed as preventing an employer from operating a scheme under which persons employed by him receive more favourable conditions than those prescribed by the said sections in respect of absences on account of illness or holidays with pay. “Provided that where, under the provisions of such a scheme employed persons engaged on the basis of a monthly wage are entitled to more favourable conditions in respect of absences due to illness or holidays with pay than employed persons in the same grade and class engaged on the basis of a daily, weekly or fortnightly wage such employed persons engaged on the basis of a daily, weekly or fortnightly wage shall, after the completion of five years of service, be entitled to conditions in respect of such absences or holidays not less favourable than those to which employed persons in the same grade and class engaged on the basis of a monthly wage are entitled.” the first paragraph of this section is redundant, because section 35 of the Ordinance [vide the section quoted in Section V of Chapter II, supra), generally sanctions benefits to the worker, more favourable than those prescribed by the Ordinance.
Zaki, p. 283; and Naguib and Bakr, p. 95, both submit that periods of suspension do not interrupt the continuity of the ten years. It is submitted that they are correct, because the legislator’s emphasis is on the worker’s continuity with the same employer, and not on the effective service. Vide Article 2(5) of the I.L.O. Convention No. 52 of 1936; para. 3 of Recommendation 47 of 1936; and Article 5(b) of Convention No. 101 of 1952.
Vide, however, the legislator’s interference in such an agreement, in favour of the daily, weekly or fortnightly workers, in section 23 of the Sudan Ordinance, quoted in footnote 24, supra. Vide section 31(a) of the Bahraini Labour Code, which expressly provides for the increase of the leave, after five years of continuous service.
This provision is not necessary, because section 6 of the Code (vide footnote 23 supra) serves the purpose. the only other Arab Labour Codes, which contain such express prohibition, are the Lebanese (section 43) and the Tunisian (section 128).
Cairo Labour Court in case No. 5597 of 1954 (in El-Fakahani, Book I, Vol. II, p. 216); Butros and Rajab, p. 312; and Badawi, Z., Vol. 1, p. 81, favour the legality of such renunciation for return, if the leave to be renunciated has already accrued, Murad, p. 484; Rashed and Hashem, p. 84; Habeeb, p. 352-3; and Faheem, p. 80, favour the opposite view, mainly because such renunciation precludes the achievement of the legislator’s goal of securing rest for the worker, which is necessary for the public good. Vide the Labour Survey of North Africa, p. 233.
Vide the discussion on remuneration, in Section I of Chapter I, supra.
Vide the Explanatory Note to section 20 of Law 317 of 1952, which is the predecessor of section 58 of the Labour Code; vide also Cairo Court of Cassation in case No. 490 of 1954 (in El-Fakahani, Book I, Vol. II, p. 220). Rashed and Hashem, p. 75, even advocate the view that the worker should be entitled, if the employer refuses to grant him the leave, to absent himself for a period equal to his leave due, after he serves notice of the same upon the employer. In this they emphasize the necessity of taking the leave in kind. But this is not consistent with their view that the leave is also a private right, which can be renounced (vide footnote 34, infra). Butros and Rajab, p. 315, oppose this view, because “this may justify the employer in dismissing the worker without granting him the termination gratuity,” presumably for the unjustifiable absence of the worker. It is submitted that they are legally correct. the resulting harshness to the worker would be a rare occasion, because the employer would, as a result of his said refusal, not only be obliged to pay the worker in lieu of the leave (vide footnote 38, infra), but would also be subject to the penalty prescribed in section 221 of the Labour Code (vide, however, footnote 38 to this Chapter, infra, where it is pointed out how Butros and Rajab wrongly adopt this reasoning for a different purpose). Vide also Article 4 of Convention 52 of 1936, which expressly provides that “any agreement to relinquish the right to an annual holiday with pay, or to forego such a holiday, shall be void.” In Morocco, “a worker may not relinquish his leave, even if he receives compensatory payment, except in special cases, such as for the performance of national defence work or for the provisioning of the country in general, and then only with the permission of the Labour Department”: Labour Survey of North Africa, p. 238.
Vide Article 5 of the I.L.O. Convention No. 52 of 1936. It is submitted that the employer would easily be adjudged a similar power, in Sudan. It is to be noted that the legislator uses in this section, the word recover and not the word deduct. So if the worker refuses to pay back the wages, the employer can only recover the wages by a suit in Court; vide Butros and Rajab, p. 311-312, who wrongly submit that the employer can deduct in instalments. on the other hand, as long as the legislator thus provides the employer with a remedy, the latter cannot in this respect, take in addition, any disciplinary measures against the worker. It is interesting to note that none of the other Arab Labour Codes, contains any provision similar to the U.A.R. provision.
Vide footnote 24 to this Chapter, supra.
Section 31(c, ii) of the Bahraini Labour Code, however, expressly sanctions the legality of such renunciation.
Vide Alexandria Court of Cassation in appeal cases Nos. 534 and 568 of 1953 (in Naguib and Bakr, p. 95); Cairo Labour Court in case No. 5767 of 1959 (in El-Hawwari, p. 131); vide Zaki, pp. 285-9; and Faheem, p. 82. Rashed and Hashem, pp. 72-3, believe in the public and private characteristics of the worker’s right to the leave all through. So they maintain that the right is not renouncable, in as far as it is of a public character; but side by side with that, it is renouncable in as far as it is a private right. the difficulties of reconciling their position are apparent. El-Fakahani, 1959 Supplement, p. 161, supports the above-mentioned decisions, but not in a sure way. He refers to his Book I, Vol. II, pp. 236-7, where he advocates the necessity of ascertaining, whether the worker did or did not abstain from requesting the leave, for his own convenience. If he did not, “it would be possible to say that the worker has freely renounced his right to the leave, and it would thereafter be unreasonable to surprise the employer, with a request for accumulated leaves for past years.” This opinion definitely runs against the said decision.
Vide the High Court of Appeal in appeal No. 11 of 1959 (in El-Hawwari, p. 126); Cairo Court of Appeal in appeals Nos. 1103/1031 and 1244 of 1955, and No. 253 of 1956 (all in Habeeb, p. 253), and No. 22 of 1958 (in El-Hawwari, p. 103); Alexandria Court of Appeal in appeal No. 296/101 of 1955 (in Habeeb, p. 354); Cairo Court of Cassation in cases Nos. 415 and 3415 of 1953 (in Badawi, K.M., p. 25, and in Habeeb, p. 353, respecttively), in cases Nos. 490 and 2032 of 1954 (in El-Fakahani, Book I, Vol. II, p. 220), in cases Nos. 792 of 1955 (Ibid., p. 219), and 991 of 1956 (Ibid., p. 222); Alexandria Court of Cassation in case No. 2254 of 1954 (in Habeeb, p. 354); Cairo Labour Court in cases Nos. 1962 and 3447 of 1953 and No. 501 of 1954 (in Badawi, K.M., pp. 209-10); vide also Butros and Rajab, p. 313; Badawi, K.M., pp. 210-5; and Rashed and Hashem, p. 74 (vide the preceding footnote). Habeeb, pp. 353-4, used to support the same view; but vide the change of his position in p. 601, on account of the new provision in section 58(3) of the Labour Code, without further justification.
Section 59(2) provides that “the employer may on a written request from his worker postpone the granting to him of the part of his leave in excess of the six days to a coming year.” Vide section 59(1), quoted in the latter part of the present Section of this Chapter. Cf. the provisions in sections 13(2) and 49, of the Iraqi and Qatari Labour Codes, respectively. the former permits the carrying over from year to year, of half the balance of the leave entitlements. the latter permits the accumulations of all the leave entitlements of the expatriate worker only, until he is transported back to his country, as provided in section 23 of the Qatari Labour Code. Section 116 of the Tunisian Labour Code permits accumulation of the leave entitlements for two years only; the Moroccan Law permits such accumulation for three consecutive years (vide the Labour Survey of North Africa, p. 239). All the above laws subject the carrying over of the leave to the consent of both parties.
Vide also Cairo Court of Cassation in case No. 114 of 1954 (in El-Fakahani, Book I, Vol. II, p. 224).
This is based on section 203 of the U.A.R. Civil Code, which provides that “the debtor after being served with notice in accordance with sections 219 and 220 shall carry out his obligation in kind whenever that is possible. However, if the carrying out of the obligation in kind is too heavy on him he may tender a monetary compensation therefor provided that no serious loss thereby results to the creditor”; vide Alexandria Court of Appeal in appeal No. 18 of 1955 (Ibid., p. 207); Cairo Court of Cassation in cases Nos. 1697 and 3031 of 1953 (Ibid., p. 226); and Nos. 415 and 3447 of the same year (in Badawi, K.M., pp. 215 and 209, respectively); Cairo Labour Court in cases Nos. 215, 328 and 1697 of 1953 (Ibid., p. 215), and Nos. 1933, 3437 and 4052 (in El-Fakahani, Book I, Vol. II, pp. 207, 210 and 225, respectively); Alexandria Labour Court in cases Nos. 553 of 1952 and 354 of 1953 (in Rashed and Hashem, pp. 77 and 75, respectively); vide also Badawi, K. M., pp. 205-6; and El-Fakahani, Book I, Vol. II, pp. 191-2, for the similar position in France. the French Law, as pointed out therein, does not favour the accumulation of the leave in kind. This, it is submitted, is the logical conclusion from the accumulation of the ‘private right’ to the leave. Contrary to the reasoning of both opinions, the Cairo District Court (Commercial), in two (unnumbered) cases decided on 19 February 1949 and 3 April 1950 (vide Rashed and Hashem, pp. 78 and 77, respectively), held that the worker’s sole remedy, when the employer refuses to grant him the leave, consists in his right to terminate the contract, without being deprived of the termination gratuity; Alexandria Court of Cassation followed suit, in case No. 471 of 1949; but reversed its stand in case No. 1302 of 1950 (Ibid., p. 78). the worker’s need for work will invariably preclude him from using this remedy; and the result is his deprivation of a remedy. Butros and Rajab, p. 315, advocate the reporting of the employer to the Labour Office, so as to have him prosecuted, as a “practical solution,” and thus bring pressure upon him, in order to preclude him from the refusal to give the leave. This of course is no legal reasoning.
Vide Cairo Labour Court in case No. 5722 of 1959 (in El-Hawwari, p. 128).
Vide the penal provisions, in section 221 of the Labour Code.
Section 22(2) provides that “an employed person may, with the consent of his employer, defer his holidays in any particular year to the next succeeding year, in which case he shall be entitled to thirty consecutive days’ holiday at full wages”-Cf. section 31 (c) of the Bahraini Labour Code, which permits both the accumulation in kind, and in the payments in lieu of the leave. This is the only provision of its kind, in all the Arab Labour Codes. O. Kahn Freund, in p. 273 of The Britsh Legal Papers, points out that, “accoring to the English Common Law, and in the absence of a trade usage to the contrary, holidays cannot be deemed to” accumulate. So the parties can without limitation, agree on the accumulation of the leave.
Sections 114 and 115 of the Tunisian Labour Code provide for such a period; vide Labour Survey of North Africa, pp. 236 and 239, for similar provisions in Algeria and Morocco, respectively.
Vide Murad, p. 484; Zaki, p. 284; Habeeb, p. 351; Badawi, K.M., pp. 206-7; El-Fakahani, Book I, Vol. II, pp. 191 and 235, and his 1959 Supplement, pp. 163-4; and Faheem, p. 82. Sections 40, 48, 39(2), 45(i, b) and 35(4) of the Kuwaiti, Qatari, Lebanese, Jordanian and Libyan Labour Codes, respectively, expressly give the employer an absolute power to appoint the date of the leave, in accordance with the work requirements. Section 13(3) of the Iraqi Labour Code, expressly provides for the appointment of the leave-date, by the agreement of the parties; and in any case, obliges the employer to grant the leave to the worker within one month, and in certain exceptional circumstances, within two months after the request of the leave by the latter.
Vide O. Kahn-Freund, in p. 276 of The British Legal Papers.
Vide the somewhat similar provisions in sections 40 and 48, of the Kuwaiti and Qata-ri Labour Codes, respectively. Sections 116 and 122 of the Tunisian Labour Code provide similarly re instalments, but only with the consent of the worker; vide also the Labour Survey of North Africa, p. 239, for similar provisions in Morocco, and p. 236, for the position in Algeria, which permits the taking in instalments, of any leave in excess of twelve days, but only with the consent of the worker-In this there is an exact similarity to the position in France: Vide the Holidays with Pay Act of 1956. Vide also Article 2(4) of Convention 52 of 1936; Article 6 of Convention 101 of 1952; and para. 2 of Recommendation 47 of 1936.
Cairo Court of Arbitration in dispute No. 133 of 1952 (in Habeeb, p. 351); vide also Cairo Court of Appeal in the appeal on dispute No. 53 of 1957 (in El-Fakahani, Book I, Vol. II, p. 206).
O. Kahn-Freund, in p. 275 of The British Legal Papers.
Vide the definition of the year in footnote 1, supra. Vide also footnote 15 and the related text, re calculation of the leave year, which is also applicable to the sick leave; vide in this respect, Murad, p. 481; Habeeb, p. 358; Rashed and Hashem, p. 98; and El-Fakahani, Book I, Vol. II, p. 194. Butros and Rajab, p. 420, wrongly submit that the sick leave year is the twelve months preceding the sickness.
The wording of the section leaves the absence of the worker to implication. This is bad drafting. the provisions of section 63 are a great improvement on the provisions of its predecessor section 25 of Law 317 of 1952, which granted to the worker a sick leave of one month with full wages for the first ten days, half wages for the next ten days, and quarter wages for the last ten days. the Explanatory Note to the Labour Code, says that “in due course, the application of this provision will be referred to the Social Insurance Corporation soon as the legislation on medical Insurance is enacted.” Subsequently, Law No. 92 of 1959, re Social Insurance, was enacted; and Chapter I of Book II thereof, established the said Corporation. Cf. the provisions in sections 14(1), 38, 50 and 63, of the Iraqi, Kuwaiti, Qatari and Lebanese Labour Code, respectively, and sections 18 and 47 of the Saudi Regulations. Section 37(1) of the Libyan Labour Code contains sick leave provisions for the workers, whose establishments are not covered by the Social Insurance Law. the Jordanian and Tunisian Labour Codes do not contain any relevant provisions.
Vide Section I, F, of Chapter III, supra.
The Explanatory Note to section 25 of Law 317 of 1952, which is the predecessor of section 63 of the Labour Code; vide also Zaki, pp. 290-1; and Habeeb, p. 58.
Vide section 81 in Chapter VI, infra; vide also El-Fakahani, Book I, Vol. II, p. 195; Rashed and Hashem, pp. 95-6; and Naguib and Bakr, p. 101.
Vide footnote 17, supra, for the provisions of section 9 of the Labour Code, concerning the wages of piece-rate workers. Vide Section I of Chapter IV, supra, for the definition of wages.
Vide Alexandria Court of Appeal in appeal No. 85 of 1955; and Cairo Court of Cassation in case No. 1492 of 1955 (both in El-Fakahani, pp. 233 and 234, respectively); vide also El-Fakahani, 1959 Supplement, p. 716; Faheem, p. 87; and Rashed and Hashem, p. 87, all of whom hold the same opinion; vide also footnote 20, supra. Section 41 of the Lebanese Labour Code empowers the employer to reduce the annual leave to eight days, if the sickness exceeds one month. This peculiar provision is the only provision of its kind, in the Labour Codes of the Arab countries. the writer has also not found any precedent therefor in any other Law.
The Explanatory Note to section 25 of Law 317 of 1952, which is the predecessor of section 63 of the Labour Code.
Murad, p. 482; Butros and Rajab, p. 307; Rashed and Hashem, p. 97; and Faheem, p. 87, are of the same opinion.
Cf. with the exclusion of the weekly rest-days from the annual leave; vide also Butros and Rajab, p. 307.
Vide in this respect, the Council of State’s opinion No. 2/5/2/2, delivered on 29 January 1953 (mentioned in Badawi, Z., Vol. II, p. 92). El-Fakahani, 1959 Supplement, p. 176; and Rashed and Hashem, p. 97, maintain otherwise, without reasoning.
Vide Murad, p. 482; Faheem, p. 86; Zaki, p. 358; and Sabbour, p. 524, who are of the same opinion. Cf. section 14(1) of the Iraqi Labour Code, which permits the carrying over of the sick leave.
Murad, p. 482; Butros and Rajab, pp. 305-6; Faheem, p. 86; and Naguib and Bakr, p. 102, are of the same view.
Cairo Court of Appeal in appeal No. 1021 of 1955 (in El-Fakahani, Book I, Vol. II, p. 234) is a contrary decision. Badawi, K.M., p. 221; El-Fakahani, Book I, Vol. II, p. 195; and Butros and Rajab, pp. 306-7, advocate the said joining of the two leaves, without reference to the limitation in section 45 of Law 317 of 1952, which is the predecessor of section 81 of the Labour Code.
Habeeb, p. 359, is of the same opinion. on the other hand, Badawi, K.M., p. 222; Sabbour, p. 524; and Rashed and Hashem, p. 300, maintain that the worker can during his sickness, request the annual leave. They add that the annual leave so taken, should be excluded from the number of days, after which the contract is dissolved by virtue of section 81 of the Labour Code. It is, however, submitted that they are wrong, because the frustration of the contract is by the force of law, automatic (vide Section I of Chapter VI, infra).
Section 44 of the Labour Code limits probation to three months.
Badawi, K.M., p. 223; Butros and Rajab, p. 308; El-Fakahani, 1959 Supplement, p. 175; and Badawi, Z., Vol. II, p. 91, are of the same view.
The absence on sickness includes the periods of approaching illness and convalescence: vide Davies v. Ebbow Vale Urban District Council (1911), 27. T.L.R. 543 (vide Diamond, p. 94). the same should apply in the U.A.R.
Cf. section 32 of the Bahraini Labour Code; for the position under the English Common Law, cf. Inglis v. East India Co. (1851) 18 L.T.O.S., with Cuckson v. Stones (1858) L.J.Q.B. 25. Diamond, pp. 92-3, states the said position, as follows: “Unless the contract of service or apprenticeship contains an express or implied provision to the contrary, a master is bound, while the contract subsists, to pay the remuneration during the absence through illness of the servant or apprentice”; vide also the nice summary of the law in Barwell and Kar, pp. 252-3; and vide Batt, p. 199; Smith, p. 91; Samuels, p. 12; and Macdonell, p. 217.
The Laws of the Sudan, Vol. 8, Title XXII, Sub-Title 4; vide also the English case of Elliott v. Liggens (1902), 2 K.B. 84, where a workman, after sustaining an injury and was compensated by virtue of the Workmen’s Compensation Act of 1897, was held to be disentitled to wages.
Vide a similar express deprivation in section 32(b, i) of the Bahraini Labour Code. the Sudanese and Bahraini provisions seem to follow the English Common Law, in this respect: vide Halsbury, Vol. 25, pp. 477-8.
Vide the definition of wages in Section I of Chapter IV, supra; and vide footnote 17, supra, for the wages of piece-rate workers.
Vide footnote 19, supra, and the related text.
Cf. section 32(a) of the Bahraini Labour Code, which permits the carrying over of the sick leave. This section also preserves the sick leave entitlements, for the worker who is discharged on medical grounds. Section 50(4) of the Qatari Labour Code provides to the same effect. These are the only Labour Codes of the Arab countries, which contain such a provision.
Vide the definition of wages, in Section I of Chapter IV, supra’, and footnote 17, supra, for piece-rate workers.
When the Labour Code was first issued, the number of days was seven; but it was made nine by Law No. 106 of 1960; and was later on made ten by Law No. 159 of 1961. Vide footnote 1, supra, for the definition of the year.
Cf. the somwehat similar provisions, in sections 15 and 16 of the Iraqi Labour Code, and 37 of the Kuwaiti Labour Code. Sections 46 and 49 of the Qatari Labour Code and the Saudi Regulations, respectively, provide for public holidays, without providing for work on these holidays. the Lebanese, the Jordanian and the Libyan Labour Codes do not contain provisions prescribing public holidays, though the latter two mention public holidays, for the purposes of calculating the annual leave only, in sections 45 and 35, respectively. Vide the Labour Survey of North Africa, pp. 229 and 231, for the provisions in Algeria (to which the provisions of Title 1 of Chapter IV of Book II of the French Labour Code, were extended), p. 229, for the provisions in Tunisia, and pp. 232-3, for the provisions in Morocco-in these two countries, the public holidays are not prescribed in the labour legislation. the holidays which are grantable in Tunisia by practice only, do not, when the worker is requested to work on them, entitle the worker to double pay, except when a collective agreement so provides.
Vide Cairo Court of Arbitration in dispute No. 176 of 1954 (in El-Fakahani, Book I, Vol. II, p. 245).
Vide Cairo Court of Arbitration in dispute No. 34 of 1955 (in Habeeb, p. 357, who approves of the decision); writers who agree, are Faheem, pp. 80 and 84; Rashed and Hashem, p. 93; and Badawi, Z., Vol. I, p. 83, and Vol. II, pp. 84-5. El-Fakahani, 1959 Supplement, pp. 172-3, also agrees, but advocates that the exercise by the employer of this power, should be reasonable; vide Cairo Court of Arbitration in dispute No. 13 of 1955 (in his Book I, Vol. II, p. 239), as an authroity for his proposition. Vide also Cairo Court of Appeal (Ibid., p. 246), as an authority for the proposition, that the deduction from the annual leave of the additional public holidays, will not be valid, unless the employer had told his workers of his intention to so deduct, at the time of granting these additional holidays.
Vide the section quoted in Section I of the present Chapter, supra.
Habeeb, p. 355, is of the same opinion.
Of this opinion are Murad, p. 486; El-Fakahani, Book I, Vol. II, p. 197; Rashed and Hashem, p. 94; Habeeb, p. 355; Faheem, p. 85; and Naguib and Bakr, p. 99.
Vide Cairo Labour Court in case No. 5597 of 1954 (in El-Fakahani, Book I, Vol. II, p. 241); vide also Badawi, K.M., pp. 216-7; Butros and Rajab, p. 316; and Habeeb, p. 356.
Vide section 60 of the Labour Code, quoted in Section I of the present Chapter, supra.
Vide the case quoted in footnote 80, supra.
Vide footnote 20, supra; vide also Rashed and Hashem, p. 87; and Faheem, p. 85; vide the Council of State’s contrary opinion, delivered on 10 September 1955 (in Habeeb, p. 356); and vide Naguib and Bakr, p. 99; and El-Fakahani, Book I, Vol. II, p. 196.
Faheem, p. 85, is of the same opinion; El-Fakahani, Book I, Vol. II, p. 196, is impliedly of the contrary opinion.
However, the writer knows from personal experience in Sudan, that public holidays are prescribed and amended from time to time, by executive resolutions of the Council of Ministers. Vide the provisions in section 31 (d & e) of the Bahraini Labour Code, which are similar to the U.A.R. provisions. In England public holidays are usually provided for in the collective agreements. They average six days per year; and the entitlement thereto, is usually made conditional upon the passing of one year in service (vide I. & L., Vol. 22, 1959, p. 193).
Vide the section quoted, in Section I of the present Chapter, supra.
Vide the Indian case of Amar v. Karam Singh, A.I.R. 1914 Lah. 82, in Barwell and Kar, p. 381.
Vide Section II of the present Chapter, supra.
Vide footnote 53 to Chapter III, supra) and vide Section II, A, 4, of Chapter VI infra.
Vide El-Areef, p. 387; and Badawi, Z., Vol. II, p. 86-7. Vide sections 38 and 31(9) of the Lebanese and Bahraini Labour Codes, respectively, for provisions prescribing the bereavement leave. Section 59 of Law 210 of 1951 in the U.A.R., prescribes an emergency leave for the Government officials and workers. the Administrative Regulations of 1934 in Sudan, grant the Government officials and workers, some local leave which can be used for an emergency.
Vide section 17 of the Iraqi Labour Code, for provisions on educational leave without pay, for workers. Vide also the Labour Survey of North Africa, p. 237, for similar provisions in Algeria; and cf. these with the French provisions (vide I. & L., Vol. 22, 1959, p. 299). Law 210 of 1951 in the U.A.R., grants leave for such a purpose, for Government officials.
Vide provisions for leave on such an occasion, in pp. 235 and 239 of the Labour Survey of North Africa, in Tunisia and Morocco, respectively.
Vide sections 51 and 35(5) of the Qatari and Libyan Labour Codes, respectively, for the worker’s pilgrimage leave. In Saudi Arabia, section 48 of the Saudi Regulations empowers the Government to issue orders, to prescribe the granting of part-paid leaves and leaves without pay. the Saudi Government has not so far used this power. In the U.A.R. the Financial Circular, No. 2 of 1943, grants such leave to the Government officials and workers.
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Hashem, H.R. (1964). Leaves and Holidays. In: Arab Contract of Employment. Springer, Dordrecht. https://doi.org/10.1007/978-94-011-8836-4_6
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