Abstract
There is no definition of the contract of employment in the U.A.R. Labour Code. A definition of the contract may, however, be inferred from section 42 thereof,2 re application of the Code. So the express definition of the contract in section 674 of the Civil Code, is left as the only reference. This section defines the contract as “a contract whereby one of the parties undertakes to work in the service of the other and under his direction and control, in return for remuneration which the other party undertakes to pay.”3
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References
The term ‘contract of employment’ will on the whole be used in this study, and that of ‘contract of service’ will be avoided, because the term ‘worker’ and not ‘servant’ will be used therein (vide Section III of this Chapter, infra). Furthermore, the term ‘contract of employment,’ will be used to indicate the ‘individual contract of employment.’
Section 42 provides: “This Chapter shall apply to any contract, by virtue of which a worker undertakes in return for remuneration to work under the direction or supervision of an employer.” Another definition can be deduced from the definition of ‘worker,’ in section 2 of the Code (vide Section III of this Chapter, infra). It is believed that the contract should have been defined in the Labour Code. This seems to be advisable for easy reference, and because of the apparent development towards the enactment of a special Labour Code in contra-distinction to the Civil Code, much the same as what happened in France.
Section 900(1) of the Iraqi Civil Code defines the contract in similar terms. The Iraqi Labour Code does not define the contract, but a definition can be drawn from that of the ‘worker’ in section 1 thereof, as can be done from section 2 of the U.A.R. Labour Code. The same can be said of the Kuwaiti Labour Code, which does not expressly define the contract. Section 1 of the Saudi Regulations connotes a similar definition. Section 15 of the Jordanian Labour Code contains an express definition, similar to the U.A.R. Civil Code definition, and so does section 10(1) of the Libyan Labour Code. In Lebanon the Labour Code does not define the contract, nor can a definition be deduced from the definition of the ‘employer’ in section 1 thereof. But the Lebanese Code des Obligations of 1934, contains a definition similar to the U.A.R. definition. The Tunisian Labour Code defines the contract in section 6, much the same as it was defined in the U.A.R.
The term ‘contract of service,’ is used in the Sudan Ordinance, because of the English Common Law inspiration and terminology.
Originally legislated in English; vide Part I, supra.
The definition of ‘employed person’ in the same section, unlike the definition of worker in section 2 of the U.A.R. Labour Code, mentions the contract only by name.
Cf. the same wording of the definition of the contract, in section 3(e) of the Bahraini Labour Code. The Adenese Labour Law does not expressly define the contract. But section 3 of the Adenese Ordinance, re application of the Ordinance, contains a definition similar to the Sudan definition, though it is limited to manual workers. The English Common Law definition of the Contract presumably applies to other workers.
The relationship of ‘master’ and ‘servant’ is that “between two persons where by agreement between them, express or implied, the one called the ‘servant’ is under the control of the other called the ‘master’”: The Law of Master and Servant, by Diamond, A. S., 1946, London, (hereinafter called Diamond), p.1.
Section 674 of the U.A.R. Civil Code, expressly mentions the undertaking to work. In Sudan the definition of the contract connotes, but does not expressly mention the undertaking to work. However, the English Common Law, as stated by Batt, p. 5, emphasises the importance of this undertaking: “The servant must be under the duty of rendering personal services to the master or to others on behalf of the master, otherwise the contract is a contract of sale of goods or the like.”
Section 692 of the U.A.R. Civil Code provides: “Whenever a wage-earning or salaried worker attends for the day’s work in pursuance of the contract, or announces that he is ready to perform it in the course of the said day and is only prevented from so doing by a circumstance for which the employer is responsible, he shall be entitled to the wages for that day”; vide Habeeb, pp. 45–7; and Butros and Rajab, p. 129; and vide the somewhat similar provisions in section 10, but cf. with section 131(2) of the Iraqi Labour Code; vide also I.L.R., Vol. 32, 1936, pp. 68–9. In Sudan the words “whereunder any person is employed either for any period of time” in the definition of the contract, connote the same meaning, though not in such a definite manner. “Where the contract of hiring provides for the payment of certain wages (not in proportion to the work done), although it may be optional on the part of the master to find work, and he may if he pleases, discontinue his business, yet he must nevertheless pay wages agreed upon whether he find work for the servant or not”: A Treatise on the Law of Master and Servant, by Smith, C. M., 7th ed., 1931, London (hereinafter called Smith), p. 49. From these words, it is discernible how the availability for work was made the basis of the undertaking to work. This follows from the general rule that the employer is not obliged to find work for the worker (vide Chapter III, infra). It is interesting to note in this respect, that section 425 of the Majallah provides that “the worker is entitled to his remuneration, if during the currency of his employment, he is present for work. His actual performance of the work is not necessary but he cannot refuse to work, and if he so refuses, he shall not be entitled to any remuneration.”
Section 678(1) of the U.A.R. Civil Code provides that “the contract of employment may be made for a particular service...” Section 2 of the Sudan Ordinance provides that the contract may be “for the execution of any work”; vide also Diamond, p. 93. This rule follows from the exceptions to the general rule, that the employer is not obliged to find work for the worker (vide Chapter III, infra).
“The Law has not defined work, so it covers all human activity”: Naguib and Bakr, p. 68.
Vide El-Areef, p. 146: “Work is the physical or mental effort, which the worker undertakes in return for the remuneration”; vide also Kanun-ul-’Amal Wa Al-Ta’meenatu Al-Ijtima’iyyatu, by Murad, M. H., 1961, 4th edn., Cairo, in Arabic (hereinafter called Murad), p. 252. For Sudan, vide Diamond, p. 18. Refer to Section III of this Chapter, infra.
Vide Sections 132 and 134 of the Civil Code; vide also Murad, p. 253; El-Areef, p. 147; and Naguib and Bakr, p. 69. For Sudan, vide Outlines of Industrial Law, by Cooper, W. M., 7th edn. by J. C. Wood, 1962, London, (hereinafter called Cooper), p. 16. Refer to Chapter II, infra.
A classical example is the posing by models, for painters or sculptors: vide Murad, p. 252; and Habeeb, p. 191. However, this does not cover an undertaking to abstain from doing a certain or any work, like an undertaking not to compete: El-Areef, pp. 145 and 147.
Vide Murad, p. 252; Zaki, p. 137; and El-Areef, p. 147, who quotes section 133 of the U.A.R. Civil Code, as an authority for the necessity of specifying the worker’s profession (though not the details of the work), as such specification ascertains the legal contractual obligation of the worker.
Vide I.L.R., Vol. 32, 1936, p. 60: “The nature of the work to be done is to be determined in the first place by the contract of employment, and where its terms are not specific, by the custom of the occupation or of the locality.” This is true both in the U.A.R. and Sudan.
Zaki, p. 137, criticizes the provisions of section 682, re determination of the nature of the work, as ambiguous. He adds that the contract should be void, if the Court cannot determine the nature of the work.
O. Kahn-Freund in Flanders and Clegg, p. 48.
Vide Habeeb, p. 190.
Section 684 of the U.A.R. Civil Code provides that “tips and meals may in some industries, be the only remuneration the worker receives.” The definition of the contract of employment in section 2 of the Sudan Ordinance, provides that remuneration may be in money’s worth. Refer to Chapter IV, infra.
Section 676 (1) of the U.A.R. Civil Code applies the contract provisions to commercial travellers, insurance agents and other intermediaries, who work for more than one employer, provided they are under the control of the employer (the section is quoted in section III of this Chapter, infra); vide also Habeeb, p. 190. The Sudan Ordinance is silent in this respect. In the English Common Law, there is no absolute rule like the U.A.R. rule. The position there is governed by the terms of the contract: vide Batt, pp. 195–196. Refer to Chapter III, infra.
“The emphasis on the human and social aspects of the element of ‘work’ in the contract of employment, has led to the interference by the legislator, in the various countries, in order to regulate work much earlier than he did interfere to regulate wages”: Zaki, p. 146.
Remuneration or wages will be discussed in detail, in Chapter IV, infra. What concerns us here, is the appreciation of remuneration as the second essential element in the contract of employment.
Vide Murad, p. 253. This legislative provision seems to have been necessitated by the prevalent habit in the U.A.R. and in the area as a whole, of volunteering assistance but not without the hope of getting some return; vide similar provisions in section 903 of the Iraqi Civil Code.
Vide Cheshire and Fifoot, pp. 13 and 549–51, for a vivid exposition of the quantum meruit; vide also Batt, pp. 207 and 41: “A right to claim remuneration for service rendered does not arise in law, unless in fact there is an agreement, express or implied, to pay for them.” In the U.A.R. there is an equivalent to the English doctrine of quantum meruit, in the doctrine of ‘unjust enrichment’ (Vide footnote 8 to Chapter IV, infra); vide also and cf. sections 437 and 563–5 of the Majallah.
(1859), 4 H & N 315. The same Judge in Reeve v. Reeve (1858) I. F. & F. p. 280, said: “An action cannot be maintained for remuneration, merely because it may appear to be reasonable.” Barwell and Kar, p. 217, submit that “a person who undertakes to labour and to provide materials, is not to be presumed to work for nothing.” They cite Higgins v. Hopkins (1848) 18 L.J. Ex. 113, in their support. Stewart v. Casey (1892) 1 Ch. 104 seems to be in their support too. So the judicial authority seems to be in favour of the presumption of a ‘contract of service’ in such cases, and of the resultant payment of remuneration.
Smith, in pp. 125–6, summarises the English Common Law position, by saying: “In cases where services have been rendered without any express contract to pay for them, the servant cannot maintain an action for wages, unless the circumstances are such as to afford evidence sufficient to justify a jury in finding that there was an implied contract to pay for such services.” If the payment or non-payment of remuneration appears to have been left to the discretion of the employer, there is no contract of service (Ibid., p. 129); vide also Diamond, p. 81; Halsbury, Vol. 25, p. 473; Cooper, p. 97; and Batt, p. 165.
Refer to these definitions in Chapter IV, infra.
Vide section 682 quoted in Section II of Chapter IV, infra; vide also Zaki, pp. 86–7, where he criticises the ambiguity of these determinants of remuneration.
Vide O. Kahn-Freund in Flanders and Clegg, p. 48; vide also Barwell and Kar, pp. 116–7.
Vide footnote 24 to this Chapter, supra; vide also Habeeb, p. 51; and Zaki, p. 87: “Remuneration may consist of a certain right or benefit as when an agricultural worker’s remuneration consists of a part of the crop, though remuneration in kind has dwindled in modern times”. For Sudan, vide Batt, p. 42.
Vide Habeeb, pp. 190 and 198. Section 676 of the U.A.R. Civil Code, re commercial travellers, insurance agents and other intermediaries, makes the contract of employment provisions applicable to them, even where they are paid on a commission basis, which is usually variable with the volume of the work done. In the Sudan, there is no similar provision. But the English Common Law recognises the variable form of remuneration for the purposes of a ‘contract of service’: Vide Batt, pp. 42–3 and 170; The Law of Master and Servant, by Macdonell, J., London, Stevens and Son, 1883, (herinafter called Macdonell), p. 412: “A man may be the servant of another, though his remuneration may not be called wages, but profit or commission”; and Cooper, p. 13: “A servant may be paid a varying commission.”
For the U.A.R., vide Habeeb, p. 190. For Sudan, vide Batt, p. 42. The legal irrelevance of the adequacy of remuneration to the contract, has led to the legislator’s interference by laying down the minimum wage provisions, both in the U.A.R. and Sudan.
Section 3 of the U.A.R. Labour Code considers as wages, the tips payable by customers (vide Section I of Chapter IV, infra); vide also Zaki, pp. 86 and 88; and El-Areef, pp. 150 and 279–80; and vide the French decision in Veuve V. Picard (1929), Sirey, 1929, 1,230 (in I.S.D.L., Vol. 5, 1930, p. 970). This is also warranted in Sudan, by the English Common Law rules on agency.
Vide for Sudan, Diamond, p. 3; and Batt, p. 42. For the U.A.R., vide El-Areef, p. 147; and Habeeb, p. 139. For the human and social aspects of remuneration, vide Zaki, pp. 106–7 and 123–4.
Refer to the first part of the present Section in this Chapter, supra. Vide Habeeb, p. 45, for the U.A.R. legal decisions in support of this contention.
This legislative interference in the rule that remuneration is the return for work, has led to a big controversy in the U.A.R., concerning the nature of pay in these cases, as to whether it is remuneration or not (vide Section I of Chapter IV, infra).
Lien de subordination or Lien de dépendance, as it is called in France.
Cairo Court of Cassation in case No. 1529 of 1959 (in El-Hawwari, p. 37); see also Cairo Court of Appeal in appeal No. 98 of 1959 (Ibidem, p. 61). Vide Badawi, K. M., p. 29; Naguib and Bakr, p. 69; Rashed and Hashem, p. 6, believe that control is characterised by the non-participation of the worker, in the management or in responsibility. But this seems to be too wide, as there are many workers of high standing, who do take part in management and share in the responsibility.
Vide also section 685 (b) of the U.A.R. Civil Code, in Section I, C, of Chapter III, infra.
Refer to Section I, E, of Chapter III, infra.
Badawi, K. M., pp. 33.
Vide Zaki, p. 256.
Previous to 1950, there was a big controversy in the U.A.R., as to whether control included the employer’s disciplinary powers or not. But the Council of State, in an opinion rendered in December 1951, has set the course in favour of implying these disciplinary powers from control (vide Rashed and Hashem, p. 142). Thenceforward, Court judgements began to lean in favour of the said implication, until it came to be taken for granted a few years later, as appears from the cases quoted in footnote (40), supra.
Diamond, p.l; vide also Batt, p. 5; and Barwell and Kar, p. 34.
Vide Cooper, p. 117; Samuels, p. 45; O. Khan-Freund in Flanders and Clegg, p. 49.
Vide El-Areef, p. 198. The German law, however, refuses to consider the employer’s disciplinary powers as an element of control (Ibid., p. 199).
Vide O. Kahn Freund in Flanders and Clegg, p. 49, quoted in Section I of Chapter III, infra.
Laws of the Sudan, Vol. 1, Title II, Sub-title 3.
The necessity of legislative interference has started to arise and will gain force, because of the industrial development in the private sector, that has already started in Sudan.
Zaki, p. 126; Habeeb, p. 157.
Subordination économique ou sociale, or dépendance économique, as it is called in France.
Vide Habeeb, p. 157.
So jurists in the U. A.R., could not avoid the discussion of the theory of economic dependence.
Travailleurs à domicile, as they are called in France.
Vide Zaki, p. 127.
Vide El-Areef, p. 146.
Dalloz Hebdom., 1931, 1, 121 (in El-Areef, p. 146); and so did the German and Italian laws (vide Habeeb, p. 171, footnote 1).
Vide the High Court of Appeal in Appeal No. 289 of 1957 (pp. 160, 167 and 171); vide also the review of the judicial decisions in Al-Mudawwant-ul-’Ummaliyyatu, by El-Fakahani, H., 2nd edn., 1959, Cairo, in Arabic (hereinafter called El-Fakahani), Book I, Vol. I, p. 32 et seq.
Refer to section 676, in footnote 22, supra.
Halsbury’s Laws of England, 3rd ed., Vol. 25, 1958, London (hereinafter called Halsbury, Vol. 25), p. 448.
Vide I.L.R., vol. 31, 1935, pp. 846 and 948, for a study of the importance of economic control as differentiated from legal control, with reference to the contract of employment and labour legislation as a whole.
Diamond, p. 2. This is also true in the U.A.R.: vide Cairo Court of Cassation in case No. 1029 of 1958, (in El-Hawwari, p. 38).
Dépendance Juridique, as it is called in France.
Dépendance Technique, as it is called in France. It presupposes the continuous and direct exercise by the employer, of the work in which he should be an expert. This happens only in small workshops (Habeeb, p. 154); vide also Zaki, p. 125; and vide I.L.R. Vol. 31, 1935: “It implies a close personal relationship, between the person employed and the employer” (p. 847). In England this form of control is the original form of legal control, as is clear from the emphasis on the control of the details and manner of performance of the work: vide Halsbury, vol. 25, p. 1, and Diamond, p. 2.
Dépendance Professionelle, as it is called in France. This is typical in large scale establishments, where personal exercise of the power of control by the employer is impossible, and the exercise thereof is usually effected by delegation (Habeeb, p. 155). This dependence is practically exclusive of technical dependence: El-Fakahani, Book I, Vol. 1, 1959, p. 32 et seq.; vide also Zaki, p. 126. In England, “control by the master, which may be a large corporation, is often physically impossible, contemporary economic organisation rests upon an organised hierarchy of delegation”: Cooper, p. 6; vide also Batt, p. 5.
Dépendance Réglementaire, as it is called in France. This is limited to the control of the conditions of work, e.g. hours of work, leaves etc. (Habeeb, p. 155). Zaki, p. 126, says that this type of control had not been accepted as sufficient to constitute the contract element of ‘legal control,’ without some “objections by jurists and hesitation in Courts, mainly on behalf of employers in the free professions”; vide also Badawi, K.M., p. 31; and Cairo Court of Cassation in case No. 1326 of 1959 (in El-Hawwari, p. 67). In England this form of control may be sufficient: vide Batt, p. 5.
“In marginal cases, therefore, the existence of a subordinate relation must be determined by other considerations”: I.L.R., Vol. 31, 1935, p. 848. This is true both in England and hence in Sudan, and in the U.A.R. Vide Diamond, pp. 5 and 6; Cooper, p. 4; and Batt, p. 5. For the U.A.R., the Explanatory Note to the Civil Code says: “The circumstances of the individual case are the determinants of control. The more effective the power of control is, the more probable the contract of employment relationship is”; and Cairo Court of Appeal in case No. 836 of 1954 (in Habeeb, p. 156).
As we have seen in the first part of the present Section of this Chapter, supra. Vide I.L.R., Vol. 31, 1935, p. 847; and Diamond, p. 6: “The fact that an employee is employed to exercise skill and an independent judgement,” is one of the considerations.
Refer to the second part of the present Section in this Chapter, supra. Vide also El-Areef, p. 145; and Cooper, p. 5.
Vide footnote 22, supra; Cairo Court of Appeal in appeal No. 192 of 1958 (in El-Hawwari, p. 68); and I.L.R. Vol. 31. 1935, p. 847, 848, and vol. 32, 1936, pp. 385 & 497. For England and Sudan, vide Diamond, p. 5. Vide also Section I, B, iii, of Chapter III, infra.
Though the definition of the contract of service in Sudan, mentions duration of the contract, it does not mention control which is left out for inference from the English Common Law. So no more bearing of duration on control can be inferred there than in England. The first U.A.R. definition of the contract of employment in section 1 of Law no. 41 of 1944, like Sudan, mentions duration; but the definition of the contract in section 674 of the Civil Code omits it. Some writers in the U.A.R. (e.g. Habeeb, p. 35; and Zaki, p. 190), consider duration as the fourth essential of the contract of employment. However, section 678(1) provides independently for the duration of the contract (vide Section III of Chapter II, infra), thus indicating clearly that duration is not an essential, said as the writers allege.The wording of the Sudan definition of the Contract does not make duration an essential in the contract.
Vide the High Court of Appeal in case No. 289 on 4 April 1957 (vide footnote 59, supra); and Cairo Court of Cassation in case No. 199 of 1959 (in El-Hawwari, p. 62). In England, vide Penny v. Wimbledon Urban District Council (1898) 2 Q. B. 212, where the plaintiff was employed to construct a sewer and was held, on account of the power of control over the work having been reserved for the defendants, to be their servant, even though he used his own equipment. Vide I.L.R., Vol. 31, 1935, p. 847: “As a rule the work must be carried out with materials and equipment belonging to the employer; this is the normal practice in the modern industrial undertakings. At the same time, it must not be forgotten that a subordinate relation may exist when this condition is not fulfilled.”
Refer to footnote 66, supra, where control by delegation was shown to be the most prevalent form of legal control.
Vide Section 676 (vide footnote 22 of this Chapter, supra), re commercial representatives etc...; and El-Areef, p. 145. For England and Sudan, vide Diamond, p. 12: “Power of control need not be continuous.”
Vide Cairo Court of Cassation in case No. 1454 of 1954 (in Habeeb, p. 156): “Proof of the employer’s ability (faculté) to exercise the right of supervision and control guaranteed to him by the law, is sufficient. Actual exercise by him of the said right is not of essential importance”; vide also the French case of Desmerais Frères et Compagnie d’Assurance “l’Urbaine et la Seine” v. Debrand, Dalloz Hebdom., 1932, p. 210, (I.S.D.L., Vol. 8, 1934. p. 97–8). For England and Sudan, refer to Cooper, p. 6, where he says: “The question therefore, is not whether the control is exercised, it is where is the right to control?”
Vide Zaki, p. 128; Habeeb, p. 160; El-Areef, pp. 144–5, 197; Rashed and Hashem, p. 5; vide also Cairo Court of Cassation in case No. 641 of 1958: “If no control is present in the contract the provisions of the law will not be applicable thereto” (in El-Hawwari, p. 64); and vide I.L.R., Vol. 31, 1935, p. 845. For Sudan, vide Diamond, p. 10, where he says: “The essence of the relationship is not the appointment, payment of wages or power to dismiss, but control.” R. v. Negus (1837), 2 C. C.R., is the classical English case for the proposition, that control is the most important element of the contract.
Commercial representatives, insurance agents and other intermediaries, were covered by the Civil Code (section 676), only because of control. The English Common Law also considered such persons as ‘servants,’ because of the element of control.
Vide footnote 8, supra. Such definition by the element of control only, is due mainly to the doctrine of consideration in the English Law, without which as a general rule, no contract whether of ‘service’ or otherwise is valid. So work and remuneration, which constitute the consideration for both parties, are more or less taken for granted.
Refer to Section IV of Chapter II, infra.
Reference may be made to The Theory of Legislation by Jermey Bentham, 1950, 1950 ed; The Province and function of the Law, by Julius Stone, 1950, Sydney; Cheshire and Fifoot; and Habeeb.
“The individual problems of labour law have their roots in the fundamental problem of the conflicting principles of the freedom of contract and industry, on the one hand, and state and collective regulation of the relation between employers and workers on the other.” (from the Preface to Vol. 13 of the I.S.D.L., 1939).
Section 433 of the Majallah provides: “The contract of hiring persons is formed by offer and acceptance, like the contract of sale.”
Vide section 89 of the U.A.R. Civil Code; Rashed and Hashem, p. 4: “The contract of employment is originally a consensual contract which cannot be completed without the meeting of the two intentions.” Consent is the basis of acceptance in the English Common Law. It may here be interesting to note the essential difference, between the French (and the U.A.R.) conception of the contract and the English (and the Sudan) conception. In the former, it is the meeting of the two intentions of the parties, whereas in the latter it is the ‘bargain’ between the parties. “The English Common Law has long stressed the commercial flavour of its contract. An Englishman is liable, not because he has made a promise, but because he has made a bargain”: Cheshire and Fifoot, p. 21. However, “behind all forms of contracts, no doubt, lies the basic idea of assent” (Idem). This is true of the French and the English contracts.
The section is quoted in Section V of Chapter II, infra. Refer to Part I, supra, especially footnote 16.
The Explanatory Note to Decree Law 317 of 1952 (which was superseded by the Labour Code), says that “the legislator’s interference by providing norms and rules concerning workers, means that the legislator intended to interfere with the freedom of contract between an employer and a worker. The intention is the furtherance of public interest. Thus the contract terms which conflict with the provisions of this Law, will be void, especially if they amount to an injustice to the worker whom the legislator intended to protect.” Again, “the main reason behind this protection, is the appreciation by the legislator of the economic inequality of the employer and the worker, especially after the guilds were abolished, and the resultant inability of the latter to exercise his free will, so as to give a proper consent”: Habeeb, p. 15. Before the legislator interfered in 1944 (Law No. 41 of that year, whose section 38 is the first ancestor of the said section 6 of the Labour Code), the contract of employment was socially characterized by the obligation (arising from economic need) to submit to the terms the employer offers (Ibid., p. 17).
Zaki, p. 189.
Vide Habeeb, p. 21. Vide also Cheshire and Fifoot, p. 24. This description of adhesion has been further emphasised by the development of the collective contracts and the collective agreements in France and England, respectively, on the one hand, and the development of work-rules in the undertaking, on the other hand.
The section is quoted in Section V of Chapter II, infra.
The Sudanese legislator, without saying it in express and forceful terms as the U.A.R. legislator did, has in section 35 demonstrated his intention of bestowing protection upon the worker.
The U.A.R. and Sudanese sections are quoted in Chapter II, infra.
Vide Habeeb, p. 32.
A very interesting example is the non-acceptance of the Lord Amulree Committee (1938) recommendation, that “legislation should be introduced ...making provision for holidays with pay in industry generally”: Industrial Relations, Ministry of Labour, 1961, London, p. 199.
This effect partly accounts for the delay in enacting the Sudan Ordinance and the bulk of the Labour legislation in Sudan (vide footnote 59 to Part I, supra).
Halsbury, Vol. 25, p. 457.
The Law of Paid Vacation, by O. Kahn-Freund, in the British Legal papers, presented to the Fifth International Congress of Comparative Law, in Brussels, in 1958, London (hereinafter referred to as the British Legal Papers), p. 267. “This compulsory normative effect, or compulsory implication of minimum norms in the relevant contracts of employment, was for England, defined by the Court of Appeal in the case of Gutsell v. Reeves (1936), 1 K.B. 372” (Ibid., p. 269).
Ibid., p. 267.
Section 94 of the U.A.R. Labour Code permits adherence to collective contracts, by registration with the competent authorities.
The section is quoted and discussed in Section I, D, of Chapter III, infra.
The two sections are quoted and discussed in Section II, C, of Chapter III, infra.
There are no legal provisions in Sudan, re covenants in restraint of trade; vide Section II, C, of Chapter III, infra.
Contracts of ‘tenancy’ and contracts of ‘bailment’ are usually distinguished, from the contract of ‘service’ in the English text-books. But such relationships do not belong to our topic of distinction here, as they properly belong to the general law, both in the U.A.R. and in England and Sudan. Whether an occupier of a certain premises does so as tenant or worker, properly belongs to the law of tenancy, and has nothing to do with the application of the labour law to him. Likewise, whether a taxi-driver or a milk-distributor for instance, holds the taxi or the milk-carriage, as the case may be, as bailee or not, is immaterial to our distinction. What would be material in such instances, is to decide whether the taxi-driver or milk-distributor is a worker, bound by a contract of employment or an independent contractor or a partner, as we shall see later on.
“If control is not an element of the contract, the provisions of the Labour Code shall not be applicable thereto”: Cairo Court of Cassation in case No. 641 of 1958 (in El-Hawwari, p. 64); “An agent remunerated by commission, is not a worker, so he cannot benefit from the provisions of the Labour Code, but is subject to the Commercial Code”: Cairo Court of Cassation in case No. 1529 of 1959 (Ibid., p. 37) — However, this case should be read subject to the provisions of section 676(1) of the Civil Code, which are quoted in Section III of this Chapter, infra; vide Murad, p. 226; El-Areef, pp. 374, 154, and 165–6: where he discusses ‘mixed’ contracts of employment which contain agency provisions, and distinguishes them from ‘several’ contracts or contracts of employment coupled though independently, with contracts of agency. Barwell and Kar say what is applicable to Sudan, taking into consideration the rights and duties of the parties to the contract of ‘service,’ as affected by the Sudan Ordinance: “The importance of distinguishing between the several relationships... is further enhanced by the fact that, by each of (these) relationships, are created quite different rights and liabilities from those, which arise from contracts of service” (p. 155); moreover, “a contract of service may, in particular circumstances, involve the servant in one or more of the other relations alluded to” (p. 154); vide also I.L.R., Vol. 31, 1935, p. 846.
The only Arab Country, whose civil law expressly distinguishes between a contract of employment and a related contract, viz. a contract of ‘services,’ is Iraq. Section 900 of the Iraqi Civil Code provides for this distinction, after it defines the contract of employment. It is believed, however, that such express provision is not necessary, as long as the various contracts are defined and thus can be compared. Section 933 of the Draft Civil Code of 1948 in Egypt, provided like the said section 900 in Iraq. But it was not adopted in the Code.
Contrat de louage d’ouvrage ou contrat d’entreprise, as it is called in France. It is of particular importance to distinguish this from the contract of employment, as “it is considered as the most related contract to the contract of employment, and the circumstances of both contracts are very similar and inter-related”: El-Areef, p. 155. As we have already seen, these two contracts were always treated as one contract under the Roman and Moslem Laws, and under Code Napoléon and the first U.A.R. Civil Code of 1883. The distinction between the two contracts “depends on the real relationship and its operation, and not merely on the words used by the parties”: Cairo Labour Court in case No. 1711 of 1958 (in El-Hawwari, p. 54). In England, “the distinction between a servant and an independent contractor, is one which is continually occupying the attention of the Courts”: Batt, p. 8. How difficult in any individual case it may be to say, whether a person is a servant or an independent contractor, is illustrated by the cases of Hardaker v. Idle District Council (1896) 1 Q.B. 335; and Penny v. Wimbledon Urban District Council (1898) 1 A.B. 212 (Ibid., pp. 10–11).
Section 933 of the Draft Civil Code expressly provided for this distinction. Vide El-Areef, p. 155: “The only difference is that the right of control exists in the contract of employment, but does not exist in the other contract”; vide also Murad, pp. 227–8. The French Law and most of the jurists in France hold that control is the only difference between the two contracts (Murad, p. 228; Zaki, p. 130; and Habeeb, p. 162); and vide the French decision in Journal des débats v. Masquelier (1934) Gaz. du Palais, 1934, 2,724 (in I.S.D.L., Vol. 10, 1936, p. 85): “A cyclist carrying newspapers of a Company everyday, is not the Company’s.... worker as the Company has no means of controlling or supervising him, and the cyclist provides the service at his own risk”; and in Société des Tournées Baret v. Castella et Rivier (1930), Dalloz Hebdom., p. 312 (in I.S.D.L., Vol. 6, 1931, p. 71): “An artist (operatic) is a worker if she is in a subordinate position, i.e. cannot interpret her part but performs under the supervision of the employer”; the German judgement of R.G. of 26 January 1937, III/41/36 (J.W., 1937, p. 1234) in I.S.D.L., Vol. 13, 1939, p. 177, ran as follows: “The concept of a ‘job contract’ implies some pieces of work, which the contractor undertakes to complete on his own responsibility (section 631 of the Civil Code). In the case of a contract of service, on the other hand, the working effort as such forms the substance of the contract.” The same opinion was expressed by the Supreme Court of the Netherlands on 1 December 1961: vide Nederlandse Jurisprudentie, 1962, Nr. 79.
The section is quoted in footnote 10, supra.
It is interesting to note that the Moslem law, which does not make a distinction between the two contracts, does however, similarly distinguish between them in the entitlement to remuneration (vide sections 424 and 425 of the Majallah).
The section is quoted and discussed in Section I, C, iii, of Chapter III, infra.
Section 661 of the U.A.R. Civil Code permits such assignment; vide El-Areef, p. 156. Section 87 of the Labour Code, however, provides exceptions to this rule of assignability: vide Section IV of Chapter II, infra.
Some U.A.R. writers try to devise numerous distinctions, in addition to control, from the exclusive applicability of labour legislation to workers, and from the rules of the general law, re vicarious liability (which was excepted from the scope of this study, vide Preface, supra): Vide Zaki, p. 129; and Habeeb, pp. 161–62.
Vide section 72 of the Labour Code, in Section II, A of Chapter VI, infra, and the doctrine of justification in Section II, B, thereof.
Refer to Section III of this Chapter, infra.
Samuels, p. 7; vide also Batt, p. 8.
Diamond, p. 16; vide also Cooper, who defines in p. 12, the independent contractor in an interesting way: “An independent contractor,” he says, “is a person doing that which a principal wishes to delegate, but doing it unfettered by any control except as to the end to be achieved.” Section 10 of the Employers and Workmen Act, 1875, in England, which is applicable to both contracts, does not clearly distinguish between them: “whether the contract”, it says, “be a contract of service, or personally to execute any work or labour”; vide Macdonell, p. 60, where it is mentioned how Lord Justice Brett properly distinguished between the two contracts in 1877, before the Select Committee on Employers’ Liability.
“The power of control which the master enjoys over the work of his servant, is the decisive factor distinguishing the servant from an independent contractor”: Batt, p. 1; vide also Sadler v. Henlock (4 E & B 570), in which Compton J., said: “The greater the amount of direct control exercised.... the stronger the grounds for holding it to be a contract of service, and similarly the greater the degree of independence of such control the greater the probablility that the services rendered are of the nature of professional services, and that the contract is not one of personal service”; and vide the Indian case of Goolbai v. Pestonji, A.I.R., 1935, Bombay 333, which was quoted by Barwell and Kar, p. 34, as the authority in India, for the distinction; they also quoted the modern English case of Collins v. Hertfordshire County and Anr. (1947) 1 A.E.R., 633, as a case “in which the connotations of the phrases Contract of Service and Contract of Services are expressly mentioned”; vide Halsbury, Vol. 25, pp. 452, 498.
Vide footnote 10, supra.
Barwell and Kar, p. 59. However, if the contract of services is personal, i.e. the personal skill of the contractor is material, the contract is not assignable (Ibid. 59-footnote 1).
Vide reference to statutory exceptions to this rule, in footnote 111, supra.
Refer to Section II, A, of Chapter VI, infra. Unless the contract of ‘service’ expressly provides for notice, the English Common Law recognises the necessity of service of a ‘reasonable notice.’
Pp. 12 and 13.
P. 6; vide also Diamond, p. 166, for the five cases in which the “master is bound by the acts done or entered into by the servant with third persons on his master’s behalf.” However, he properly adds that “the ‘authority’ of a servant is properly part of the law, not of master and servant, but of principal and agent”; refer in this respect to Samuels, pp. 24–6; and Macdonell, pp. 14–5.
Barwell and Kar, pp. 186–7, who quote the “curious modern case” of Grand Trunk Railway Co. of Canada v. Robinson (1915) A.C. 740, as an instance of such difficulty. It was held therein, that a master who, on sending his servant on a business journey, and had contracted with the Railway Co. (whose services were used for the journey), so as to fix the liability for any accident to the servant, with the said Co., without the servant’s objection, did so contract with it as an agent for his servant and not as his master.
Vide Habeeb, p. 195; El-Areef, p. 159, where he underlines the difficulty of distinction, when the worker is also an agent.
Vide section III of this Chapter, infra, re advocates.
Some of the U.A.R. writers go to the extent of saying that control is not the measure of distinction, but the distinction lies in the nature of the work and whether it is ‘legal’ or ‘material’ (Habeeb, p. 196, who therein quotes other U.A.R. and French authors and some old cases decided under the old Civil Code of 1883, in his support). Other writers take the view that control is the real measure of distinction (Murad, pp. 231–2; El-Areef, p. 159; Badawi, K. M., p. 39, and other U.A.R. and French authors who were listed in Habeeb, p. 195). The fallacy of the first group is exposed, by the proviso which section 676(1) of the Civil Code itself prescribes for the admission of insurance agents etc... as workers, viz. that of control (vide footnote 25, supra). The above quotation from the Explanatory Note to the Civil Code, should not as was done by these authors, be taken on its face value, nor is it any authority when section 699 of the Code is confronted with section 676(1), both of which should be read together with section 674, when a distinction is sought between the two contracts. The question has not been forcefully mooted, it seems, but the Council of State, on 15 April 1953, delivered an opinion that “the essential difference between a worker and an agent, is that the former is subject to the supervision and control of his employer, whereas the agent’s will is independent of his principal’s will” (in Habeeb, p. 195, footnote 4; this author, whose support for the first view has been noted, contradicts himself in p. 197, when he says that “the contract of a commercial representative is a contract of employment, if he does not preserve his total independence in the performance of his work”). The said first group of writers claim that the law in France supports their view. However, Trib. de Rouen, 23 July 1929, Recueil de Rouen et Caen, 1930, 1, 30 (in I.S.D.L., Vol. 6, 1931, p. 69), decided that “a commercial representative is not an agent.... where he is in a dependent and subordinate relation to the firm employing him”; vide also Bonfiglio v. Carmona (1936) Dalloz. Hebdom. (in I.S.D.L., Vol. 12, 1938, p. 144) to the same effect. It is worthy of mention here, that ‘control’ is the measure of distinction also in Belgium (I.L.R. Vol. 32, p. 225), in Switzerland (Ibid., p. 498), in Germany (Ibid., p. 211), and in the Netherlands (vide footnote 107, supra).
Cheshire and Fifoot, p. 386.
27 L.J.M.C. 207.
Vide Diamond, p. 13; Samuels, p. 7; Macdonell, p. 52; and Smith, p. 36; vide also R. v. Bailey (1871), 12 Cox 56; and R. v. Negus (1873), L.R. 2 C.C.R. 34, both decided after Walker’s case, and when compared together, underline the same distinction (vide Cooper, p. 12). Section 188 of the Indian Contract Act of 1875, recognizes the discretion which the agent exercises in his work and which is not open for a servant: — The Indo-Union Assurance Co. Ltd., v. T. Srinivasan (1947), Indian Law Reports, Madras, 170, is an authority for the said distinction between a ‘servant’ and an agent. Vide also I.L.R., Vol. 32, 1936, p. 382.
Vide the history of the gratitous nature of the contract of agency, commencing with the Roman Law, in Zaki, pp. 138–40 et seq., and Habeeb, pp. 193 et seq., though of course this contract has everywhere developed to be remunerative (vide Murad, p. 232); El-Areef, p. 159, points to the lawful guardian’s agency on behalf of the minor, as an instance of agency without remuneration.
Cheshire and Fifoot, p. 387. Section 185 of the Indian Contract Act of 1875, provides that no considereation is necessary to create an agency.
Cf. section 85 of the Labour Code — Refer to Section I, G, of Chapter VI, infra.
Batt, p. 7, adds: “unless it is coupled with an interest held by the agent”; vide also Cheshire and Fifoot, pp. 411 and 412. Refer to Section II, A, 2, of Chapter VI, infra, for the statutory notice-requirements in Sudan.
Vide Cheshire and Fifoot, p. 415.
Refer to footnotes 111 and 121, supra.
The section is quoted and discussed in Section I of Chapter IV, infra. Vide also Zaki, pp. 97–8, and 131–2; Habeeb, p. 181; and El-Areef, p. 160.
“Arrangements are frequently made in trade between masters and... servants employed by them, under which (the latter) are remunerated... by a sum calculated with reference to the gross or net profits of their masters”: Smith, p. 31; “A man may be the servant of another, though his remuneration may not be called wages but profit or commission”: Macdonell, pp. 41–2; “A contract for the remuneration of a servant, employed by a person engaged in a business, does not of itself make the servant a partner in the business”: Halsbury, Vol. 25, p. 452; and vide cases quoted therein to the same effect. Vide section 2(3, b) of the English Partnership Act of 1890, which provides to the same effect. The difficulty is further complicated because “every partner may take part in management of the partnership business, but no partner is entitled to remuneration for so doing”: Encyclopaedia Britannica, Vol. 17, p. 344.
Vide sections 519 and 520 of the Civil Code; vide also Zaki, p. 132; Habeeb, pp. 182–3 (who quotes the French expression collaboration sur un pied d’egalite, and the Moslem Law, to the same effect).
Vide Murad, p. 235; and El-Areef, p. 160, where he mentions the familiar but interesting example of an agreement, between a land-owner and a farmer, under which the latter farms the land of the former and both share the crop. If the former controls the work of the latter, the agreement is a contract of employment. If he does not, it is a tenancy agreement of husbandry, governed by section 619 of the Civil Code. The element of control which decides the nature of the contract, in the case where workers are remunerated by a share in the profits of the employer’s business (section 691(1) of the Civil Code), is not affected by the provisions of the same section, which make it obligatory on the employer in these cases, to permit the worker to consult his (the employer’s) accounting books, in order to verify the profits (vide Habeeb, p. 183).
Vide Murad, p. 237; and Habeeb, p. 181 — footnote 5; Badawi, K. M., p. 96; El-Areef, p. 265; and Kanun ’Akd El-’Amal El-Fardi Wa Ahkam El-Kadha’, by Faheem, M., 1955, Cairo, in Arabic (hereinafter, called Faheem), p. 38.
Vide, however, Alexandria Court of Appeal in appeal No. 360 of 1957 (in Habeeb, p. 183), in which it was held that the contract was that of employment and not of partnership, as long as one of the parties was under the control of another, even though the party controlled was liable to carry the losses of the business.
Laws of the Sudan, Vol. 4., Title XIII, Sub-Title 6; vide the similar wording of the definition of a partnership, in section 1 of the Partnership Act of 1890 in England.
In Stocker v. Brooklebank (1851)3 Mac. & G. 250, it was decided that, a manager of a firm who had “no controllable discretion” in the management of the firm, was a mere servant, although the firm exploited a process discovered by the manager, and the manager was remunerated by a percentage of the profits ,and had the option of buying the business on certain conditions. In Hill v. Beckett (1951) 1 K.B., 578, it was decided that the simple test for the distinction was, “whether one of the parties is under the control and bound to obey the orders of the other; if so there is the employment relationship”; vide Samuels, p. 8.
Vide R. v. Macdonald (1861) Le. & Ca. 85, where the accused, who was employed as a cashier at a certain annual salary and a commission on profits, was held to be a servant, because he was not liable to share in the losses.
p. 14.
The weight of judicial authority is to the same effect. In Walker v. Hirsch, 27 Ch. D. 641, it was decided that a servant who was remunerated by a fixed salary and a share in the profits, but was also liable to share in the losses, was not a partner, because of the power of control his master had over him; Re Young ex. p. Jones (1896) 2 Q.B. 484, is an authority to the same effect, and is all the more interesting, because its facts are similar to the facts of the U.A.R. case, quoted in footnote 142, supra.
When Diamond, p. 24, says that, “if the person in question is a partner, he is liable to contribute to the losses of the business, if he is merely a servant he is not so liable,” he is, it is believed, aiming at emphasising the importance of the distinction, rather than defining the measure of that distinction.
Encyclopaedia Britannica, Vol. 17, p. 344.
“Under English Law the firm is not a corporation, nor is it recognised as distinct from the members composing it” (Ibid.)
The difficulties which may arise from such provision in Sudan, are not far-fetched. “Servants of such bodies,” says Batt, “may find themselves in serious difficulties in discovering who in law is their master, and whom to sue should there be a breach of the contract” (p. 37).
The definition of ‘employer’ in section 3(h) of the Bahraini Labour Code, is similar to the Sudan definition; and so is the definition in section 2 read with section 3 of the Aden Ordinance.
The definition of the employer in section 1 of the Kuwaiti Labour Code, expressly imposes the ‘profession’ restriction on the employer; and so does section 1 (2) of the Iraqi Labour Code — (this was only added by amendment of the Code by Law 82 of 1958). But the definition in section 2(11) of the Jordan Labour Code, section 1 of the Lebanese Labour code, section 2 of the Saudi Regulations, and as can be deduced from section 10(1) of the Libyan Labour Code, do not impose such restriction on the employer.
Contrary to the English and hence the Sudan law, Explanatory Notes in the U.A.R. are interpretative references of first instance.
Vide Butros and Rajab, p. 15; vide also Badawi, K. M., p. 27; Badawi, Z., Vol. I, p. 23; El-Fakahani, Book I, Vol. I, p. 32, who impliedly contradicts himself in p. 92 et seq.
The Explanatory Note definition does not seem to have been put to serious testing in Courts. The Cairo Court of Arbitration decision in dispute No. 6 of 1955 (mentioned in Habeeb, p. 245), which adopted the ‘profession’ restriction on the employer, is not an authority to depend on, as it is a decision of a minor Court, and does not seem to have been followed by the same or any other Court.
Section 1 of Decree Law 317 of 1952 was exactly worded as section 42 of the Labour Code (which was quoted in footnote 2, supra).
Vide Habeeb, p. 252.
Administrative control is, as we have previously seen, enough to constitute control. Vide also Cairo Court of Appeal decision in appeal No. 1774 of 1958 (in Habeeb, p. 175); and the same Court in appeal No. 99 of 1959 (in El-Fakahani, Book I, Vol. I, p. 61); and vide Murad, pp. 241–2.
The advocates of the ‘profession’ restriction on the employer, have also tried to find some support in (a) the use of the term ‘the other party,’ in the definition of the contract of employment in section 674 of the Civil Code, while the term ‘employer’ was used in the said Decree Law (and the Labour Code), which two terms according to their view, cannot mean the same thing, (b) the exclusion by the Labour Code, of domestic servants and persons performing work “not within the scope of the employer’s business” (vide Section III of this Chapter, infra). However, the use of the different terms without the definition of the term ‘the other party’ in the Civil Code, on the one hand, and the use of a term other than “the other party” in the Civil Code itself (sections 676, 684, 686, 687, 690), on the other hand, means that these terms are no more than synonyms. The express exclusion of domestic servants from the Labour would not be necessary, if the profession restriction on the employer were valid. Finally, the exclusion of persons performing work which falls outside the scope of the employer’s business, is not absolute, as it is limited by the Code itself to the work not lasting for more than six months.
The traditional legal term ‘servant’ was and is still being used in England, to denote the person who works for another, under the latter’s direction and control. The contract which regulates the relationship, was as a result called the ‘contract of service.’ These terms, on account of their acquisition of certain legal connotations, continue to be used in spite of the fact that “the terms servant and master have become unpopular in legislation, the popular ear finding presumably too great a similarity between servile and service”: Batt, pp. 4–5. In Sudan, though the term ‘employed person’ and not ‘servant’ is used in the Ordinance, the term ‘contract of service’ was illogically used instead of the term ‘contract of employment.’ In the U.A.R. the term ajeer (in Arabic), which means a ‘hired person’ and denotes the term ‘servant’ rather than any other, was used in the first Civil Code of 1883. This was understandable, because, as was pointed out in Part I, supra, the contract under which the ajeer used to work was a lease contract. But the term ajeer was finally discarded, since the enactment of Law 41 of 1944. The term ‘worker’ was used instead, to denote any one bound by a contract of employment, irrespective of the nature of his work, whether it is predominantly mental or manual, i.e. whether he is, to use the English terms, an ‘employee’ or a ‘workman.’ Since the Sudan Ordinance uses the term ‘employed person’ to denote the U.A.R. term ‘worker,’ the use of the latter term in this study was decided on as a convenient term. The term ‘worker’ connotes no ‘servility’ or ‘lease,’ both of which are not in consonance with the modern spirit of democracy and that of labour legislation.
The word ‘service’ in this definition, which is a relic of the past, is not necessary for the definition. The words ‘for an employer’ would have been better than the words ‘in the service of the employer.’
Section 1 (a) of the Iraqi Labour Code, and section 1 of the Kuwaiti Labour Code contain definitions similar to that of the U.A.R. But section 2(10) of the Jordanian Labour Code, section 2 of the Lebanese Labour Code, and section 1 (3) of the Saudi Regulations, are useless, without reference to the definition of the contract of employment.
Section 3(g) of the Bahraini Labour Code contains a definition, like the Sudan definition. The definition of a ‘worker’ as can be deduced from the contract of service definition in section 3 of the Adenese Ordinance, is also similar.
The typical English definition of a ‘servant’ is “one who for consideration, agrees to work subject to the orders of another”: Macdonell, p. 34; vide also Cooper, p. 3; and Batt, p. 1.
Vide Murad, p. 224; Habeeb, p. 189, who depended on section 685(a) of the Civil Code, which provides that the worker should perform the work himself; El-Areef, p. 139; and Faheem, p. 6; El-Sa’eed, pp. 4 and 7, did the same in Iraq. Vide also the I.L.R., Vol. 31, 1935, p. 847.
Vide Murad, p. 225. The only Arab Countries, which make an express distinction between a ‘workman’ and an ‘employee,’ are Iraq (section 1 a & b of the Labour Code), and Lebanon (section 3 of the Labour Code). Such distinction is familiar in some of the European countries, especially France and Germany. The distinction is material in England, e.g. in the application of the Employers and Workmen Act 1875, which was limited in its application to ‘manual’ work. Bound v. Lawrence (1892) 1 Q.B. 226, decided the distinction, according to whether manual labour was “the real and substantial part of the employment.... or merely accessory and incidental to the real employment” (vide Samuels, p. 40). The I.L.O. tries to treat workmen and employees separately, in some of its reports, recommendations and conventions.
Both treat the two categories of wrokers differently, in respect of termination of the contract (Chapter VI, infra). Sudan treats them differently in the termination gratuity entitlements, but the U.A.R. does not (Chapter VII, infra). Section 66 of the U.A.R. Labour Code (vide Chapter III, infra), makes a distinction between the two categories of workers, in the length of the period during which a disciplinary penalty may be inflicted. The trend in the U.A.R., which used to differentiate as aforementioned, much more than Sudan ever did, is to equate the two categories of workers. This is clear, when the Labour Code is compared with its predecessor Decree Law 317 of 1952, which used to accord different treatment in the termination gratuity and sick-leave. The said Decree Law itself equated the two categories of workers, in the length of the probation period, which was not the same under Law 41 of 1944.
Alexandria Court of Cassation in case No. 1765 of 1953 (in Badawi, K. M., p. 34; and Butros and Rajab, p. 14, both of whom report the case without much comment). Vide also Barwell and Kar, p. 43, where they affirm that the remunerated muezzin (the Moslem crier for prayers), is a ‘servant’ in the full sense, when he is under the control of the religious committee concerned.
Barwell and Kar, p. 42.
Halsbury, Vol. 25, p. 451.
(1937), 2 A.E.R. 751 CA., 30 B.W.C.C. 188
Refer to Part I, supra.
It is believed that, due to the lack of any protection for Moslems engaged in religious work, apart from remuneration and charitable treatment, the application of the Labour Law to the said persons in the U.A.R. and Sudan, is sound, though in neither country do such persons seem to avail themselves much of the opportunity. The application of the U.A.R. Labour Legislation to Christians engaged in religious work, is purely academic, as their establishments usually take care of them in their own way.
Vide Shbeen El-Koum Court of Cassation in case No. 194 of 1951 (in Habeeb, p. 177); Cairo Court of Appeal in appeal No. 804 of 1954 (in Badawi, K. M., p. 35); and the same Court in appeal No. 340 of 1957 (in El-Fakahani, Book I, Vol. I, p. 35). Section 935 of the Draft Civil Code of 1948 contained an express provision to the same effect; but the section was not adopted.
P. 6; vide also Barwell and Kar, pp. 49–50, who in footnote 2 p. 34, quote the interesting case of the University of London Press Ltd., v. University Tutorial Press Ltd. (1916), 2 Ch. 601, as an authority for holding an outside-examiner of an educational institute, an independent contractor and not a servant. The temporary nature of the examiner’s work contributed, it is believed, to the making of this decision.
The word ‘employed’ here, which, it is believed, is used as a synonym for the word ‘controlled,’ is reminiscent of the use of the word ‘employed’ in the Sudan definition of the ‘contract of service.’ The term ‘employed’ is, however, an unhappy term, as it may just mean ‘given work,’ and does not necessarily indicate ‘control.’
Vide the distinction between a contract of employment and a contract for independent work, in section I of this Chapter, supra.
Vide the distinction between a contract of employment and a contract of agency, in Section I of this Chapter, supra.
Vide El-Areef, p. 163; Habeeb, p. 194; and Badawi, K. M., p. 39, who adds that, if an advocate works in the office of another and under the latter’s control, he would be a worker.
This is deducible from Kennedy v. Broun (1863) 13 C.B.N.S., 677: “We consider ... that the relation of counsel and client renders the parties mutually incapable of making any contract of hiring and service, concerning advocacy in litigation”; vide also Macdonell, p. 84; and Barwell and Kar, p. 33, who consider that a solicitor would be an independent contractor.
Vide Cairo Court of Appeal in appeal No. 99 of 1959 (in El-Hawwari, p. 61): “The relationship between an advocate and another person is subject to the Labour Code, if legal and not necessarily technical control is present”; the same Court in appeal No. 923 of 1958 (in El-Fakahani, Book I, Vol. 1, p. 103), held that the Labour Code did not apply to the advocate when there was no notion of control — as also when the advocate carried out his duties in his own office; Cairo Labour Court in case No. 2626 of 1959 (Ibid. p. 51); vide also Murad, pp. 232–3, 176; El-Areef, pp. 163–4; Rashed and Hashem, p. 8, where they quote section 935 of the Draft Civil Code of 1948, as an authority to the same effect; El-Fakahani, Book I, Vol. 1, pp. 108–9; I.L.R., Vol. 31, 1935, p. 846: “...a doctor or lawyer can enter into such a contract of employment, if their work is to be performed in a subordinate relation.”
Cairo Court of Cassation in case No. 142 of 1956; and Cairo Court of Appeal in appeal No. 69 of 1959 (both in El-Fakahani, Book I, Vol. 1, p. 103 and 99, respectively), confirmed the said limitation by the Advocates Law, but ruled that this did not prevent an advocate from doing legal work as a legal adviser to a Company or any other employer, and from being bound to the employer by a contract of employment. However, the minority opinion persisted in spite of a later decision by the Cairo Court of Appeal in appeal No. 1429 of 1960, to the same effect as its 1959 decision.
If control can thus be ascertained, one cannot see why an advocate should still be deprived of the protection, provided by the Labour Code and the other labour legislation.
The Laws of the Sudan, Vol. 10, Title XXVI, Sub-Title 2.
The decision quoted in footnote 181, supra, is on the traditional agency relationship between a client and a counsel, of which we have previously spoken.
It is conceivable that an advocate can be a ‘servant’ in England, “even though the nominal control resting in the master, is made almost illusory by his lack of the particular skill involved”: Cooper, pp. 6–7.
The old decision of the Mixed Courts in May 1936 (reported in El-Areef, p. 164), to the effect that a journalist is an independent contractor, if he is “independent in his editing duties,” need not bother us, because then control had not yet developed to embrace administrative control.
Vide cases in Diamond, pp. 183, 282 and 283.
For U.A.R., vide El-Areef, p. 162, who quotes French authorities to the same effect. For England, vide Cooper, p. 6: “a patient’s contract with his doctor will rarely be a contract of service, for effective control cannot be asserted”; vide also Barwell and Kar, p. 33.
Vide the High Court of Appeal on 19 April 1952 (in Badawi, K. M., p. 34); Alexandria Court of Appeal in appeal No. 97 of 1956 (in El-Fakahani, Book I, Vol. I, p. 111); Alexandria Court of Cassation in case No. 1326 of 1959 (in El-Hawwari, p. 68), both of which decided that the administrative control of the doctor is sufficient, and that his control need not be technical; in the Cairo Court of Appeal decision in appeal No. 1295 of 1955, it was held that there was no control in the contract of a doctor with his establishment, where only a certain general fee per patient was agreed upon. The Cairo Labour Court decision in case No. 1619 of 1955, which was contrary to all the above-quoted decisions, is of no serious concern, as it is of a minor Court, and does not seem to have been followed. The position in the U.A.R., is similar to the position in France: vide Duclos v. Sèhe (1933), Dalloz Hebdom. — (in I.S.D.L., Vol. 9, 1935, p. 75). Vide also I.L.R. Vol. 31, 1935, p. 846.
“And this difficulty of controlling professional service, is responsible for the problems which have been before the Courts in relation to doctors employed by or working in hospitals”: Cooper, p. 6. The difficulties encountered in deciding the said vicarious liability arose in cases like Hillyer’s case (1909) 2 K.B. 820, which was followed by more logical decisions in Marshall’s case (1937) A.C., and Cassidy’s case (1951) K.B. 343. Vide Diamond, p. 9; Batt, p. 10; and Barwell and Kar, p. 49, who state that resident doctors would if controlled, be ‘servants,’ but not the visiting doctors.
Cairo Labour Court in case No. 1857 of 1953; and Abdeen District Court in case No. 90 of 1952 (both in El-Fakahani, Book I, Vol. 1, pp. 121 and 124, respectively). For England and Sudan, Gold v. Essex County Council (1942) 2 K.B. 293, finally settled the law; vide also Diamond, p. 3.
Vide Murad, p. 233; and Habeeb, p. 195, who adds that the agency powers of a general manager of a Company, should not be mixed with his ‘service’ duties, even though both these powers and duties are provided for in his contract of employment; and he quotes other U.A.R. writers and some French decisions in support.
Vide Sociéte Secrestat v. Crozatier (1926) — Receuil de la Gazette des Tribunaux, 1926, 1, 164 (in I.S.D.L., Vol. 2, 1926, p. 102).
Smith, p. 126. The question seems to have been first mooted and decided in England, in Dunston v. Imperial Gas Light Co. (1881) 3 B & Ad.
Diamond, p. 274.
This seems to have been appreciated also in India, where it was decided in Sardar Gulab Singh v. Punjab Zemindari Bank Ltd. (1940) A.I.R., Lahore, 243, that a managing director is the ‘servant’ of the Company. It is submitted that the contrary submission of Barwell and Kar (p. 58) on this case, is wrong.
Les Commision Voyageurs, as they are called in France. The general definition of a commercial traveller is a person, who “travels on behalf of a commercial firm for the purpose of submitting the products of this firm to customers. He is remunerated in different ways, but the most general system is a fixed salary, a commission in proportion to his turnover, and the refund of his daily travelling expenses” (I.L.R., Vol. 32, 1936, p. 209). This definition is good for the U.A.R. and Sudan.
Les représentants de Commerce, as they are called in France. A commercial representative is a person, whose work consists of visiting “the customers in a certain area, on behalf of one or more firms. He has to conform to the instructions given by the firm or the firm represented, and therefore, he does not act on his account. He is remunerated by a commission fixed in advance, and paid solely by the firm or firms which he represents” (Ibid.). Vide the similar definition in Habeeb, p. 58; and Butros and Rajab, pp. 74–75; vide a similar definition of a commercial representative in Bellet v. Planque èsqualiés (1933), Dalloz Hebdom., 1933, 2, 77 (in I.S.D.L., Vol. 9, p. 88). This definition is good for the U.A.R. and Sudan.
A local salesman is a person, who “works in the town, where the firm or firms which he represents are situated. He is under the daily supervision of the firm which employs him, and is remunerated by a fixed salary and a percentage on his turnover. He is sometimes granted a travelling allowance. There are also local salesmen, who work solely on a commission basis” (I.L.R., Vol. 32, 1936, p. 210). This definition is good for the U.A.R. and Sudan.
Zaki, p. 143, states that section 676 was directly copied from the French Law (section 29 K-Y, of Book I of the French Labour Code, introduced on July 18 in 1937); and submits that a mistake was committed in copying the section. The word ‘and’ was omitted between ‘representatives’ and ‘travellers,’ whereas the intention was to make the description ‘commercial’ applicable to both. His submission seems to be correct. The said French Law of 1937, seems to have adopted the previous trend of judicial authority (Vide the two French decisions of 1931 and 1936, quoted in footnote 127 to this Chapter, supra).
A commercial agent is a person, who “usually has an office independent of the firm or factory of his employer. He is engaged on a contract and organises his tours as he pleases. He generally receives a fixed allowance for his office expenses, and a percentage on his turnover” (Ibid., p. 209). This definition applies to an insurance agent.
Vide the relevant decision of the Cairo Court of Cassation in case No. 1518/35 (commercial) of 1954; the Alexandria Court of Appeal in appeal No. 88 of 1955; and the Cairo Court of Appeal in appeal No. 1102 of 1955 (all in Habeeb, pp. 198–9). Vide I.L.R., Vol. 32, 1936, for the similar position of the law in Belgium (p. 225), in Switzerland (p. 498) and in Germany (p. 211). It is worthy of mention that section 2(1, i) of the Iraqi Labour Code, illogically excepts the persons under discussion, from the provisions of the Code.
In R. v. Negus (1873) L.R. 2 C.C.R., 34, the prisoner who was employed to solicit orders, was held not to be a servant, because he had complete discretion as to how and when he would seek business, despite his covenant as to exclusive service; vide Samuels, p. 11; and Barwell and Kar, pp. 235–6.
I.L.R., Vol. 32, 1936, p. 382.
Whether employers of actors technically controlled their actors or not, was dismissed by the Courts in the U.A.R., as irrelevant, as administrative control was enough: Cairo Court of Cassation in case No. 2551 of 1953 (in Badawi, K. M., p. 38 — the author was a judge in the case); Cairo Labour Court in case No. 4716 of 1957 (in Habeeb, p. 179, who quotes the French Appeal decisions Nos. 125 of 1923 and 24 of 1927, Dalloz Hebdom., as authorities to the same effect); El-Areef, p. 164, where he says that singers who celebrate a wedding, are not workers as they are not controlled by their host. In England, Armour v. British International Pictures (1930) 23 B. 367, decided that a cinema actor, who was engaged as a member of a crowd, at one guinea per day, was not a ‘servant’; vide also Batt, p. 359.
This category of persons has been the subject of much litigation in the U.A.R., but not in England. The reason is that house-to-house retail sale of kerosine, is still an important feature of everyday life in the U.A.R. These mobile distributors, with their motorised or horse drawn transport, should of course, not be mistaken for the petroleum salesmen in shops or depots. The latter are either tradesmen or independent contractors, but can sometimes be workers, if they are legally controlled in their work.
Vide Bandar El-Geezah District Court in case No. 949 of 1949 (in El-Fakahani, Book I, Vol. 1, p. 247); Cairo Court of Cassation in case No. 3426 of 1949; and the Council of State in case No. 667 in 1950 (in Habeeb, p. 166); vide also Butros and Rajab, p. 9.
Vide Cairo Arbitration Court in disputes Nos. 245 of 1953 and 57 of 1956 (in El-Fakahani, Book I, Vol. I., pp. 244 and 247, respectively); and Cairo Labour Court in case No. 6169 of 1959 (in El-Hawwari, p. 53).
Vide The Council of State (vide footnote 209, supra); and Faheem, p. 7.
Though it has not so far been mooted in Sudan, the problem may have to be faced at any time, because kerosine distributors in Sudan, are as much a feature of everyday life as they are in the U.A.R.
Domestic servants, though they fulfil the definition of workers, are expressly excepted from the Labour Code, as we shall see later.
Vide Cairo Court of Cassation in case No. 37 of 1954 (in Badawi, K. M., p. 35; vide also Butros and Rajab, p. 12; Faheem, p. 9; and El-Hawwari, p. 19); and vide Cairo Labour Court in case No. 7352 of 1954; and Cairo Court of Appeal in the appeal on dispute No. 67 of 1956 (both in El-Fakahani, Book I, Vol. I, pp. 212–3). This also is the French law: Dalloz Hebdom., 1935, p. 195 (in Hebeeb, p. 187, footnote 4). It is interesting to note that out of all the Labour Codes in the Arab Countries, only the Tunisian Code expressly mentions drivers, and provides that “a driver of a Public Transport car, whether for persons or goods, is a worker, if he does not own the car or the transport licence (section 4).” Such express provision is unnecessary and productive of ambiguity.
Vide Cairo Labour Court in cases Nos. 2459 of 1955 and 1418 of 1956 (in El-Fakahani, Book I, Vol. 1. p. 214); and Alexandria Court of Appeal in appeal No. 271 of 1959 (in El-Hawwari, p. 50).
Faheem, p. 15, is of the same opinion.
Vide footnote 74, supra.
Vide Venables v. Smith (1895) 2 Q.B.D. 279; Smith v. General Motor Cab Co. Ltd. (1911) A.C. 188. However, The London Hackney Carriages Act, 1843, and the Town Police Clauses Act, 1847 (for the Provinces), consider the said bailment relationship, as far as the public are concerned (i.e. for the vicarious liability purposes), to be a master and servant relationship (Keen v. Henry (1894) 1 Q.B. 292). But there are no such legal provisions in the U.A.R.
Vide Cairo Court of Arbitration in dispute No. 12 of 1953 (in Badawi, K. M., p. 37), which was confirmed by the High Court of Appeal on 4 april 1957 (vide footnote 60 to this Chapter, supra); vide also Butros and Rajab, pp. 16–18.
The U.A.R. Labour Code and the Sudan Ordinance and all the Labour Laws of of the rest of the Arab Countries except Tunisia, have adopted the method of express exception to the general application of their laws, instead of enumerating the categories to whom these are applicable: vide sections 4,5 and 88 of the U.A.R. Labour Code (vide Zaki, p. 78, where he emphasises the value of express exception), 2 of the Iraqi Labour Code (vide El-Sa’eed, pp. 14–15, where he also points to the express exclusion method), 2 of the Kuwaiti Labour Code, 12 of the Jordanian Labour Code, 7 of the Labour Code of Lebanon, 2 of the Saudi Arabian Regulations, 3 of the Sudan Ordinance, 4 of the the Bahraini Labour Code and 21 of the Adenese Ordinance. For the enumeration method in Tunisia, vide sections 1 to 5 (incl.) of the Tunisian Labour Code.
Section 675 of the U.A.R. Civil Code provides: “(1) the provisions of this Chapter shall only apply in so far as they do not expressly or impliedly violate the provisions of the special Labour laws, (2) the said laws shall specify the categories of workers to which the provisions of this Code shall not apply.” Subsection (2), it is submitted, was badly drafted. The real intention of the legislator was intended to give a superseding effect to “the special labour laws”, in as far as the application of the provisions of these laws is concerned. But it was not to empower the said laws to except any contracts, which answer to the definition of the contract in section 674 of the Civil Code (which so far is the only definition reference for these laws), from being such contracts. The correctness of the submission is illustrated by the Labour Code (and its predecessor of 1952), which expressly limit the exception to the provisions of the Code itself, and says nothing about the Civil Code provisions in sections 674 to 698, especially sections 694 and 695, re reasonable notice of termination, and compensation for the unjustifiable termination, respectively (the two sections are quoted in Chapter VI, infra). The U.A.R. Courts and writers seem to have taken it for granted, that section 675 could not have the above-mentioned far-reaching effect (vide Bandar El-Zakazeek District Court on 3 October 1952, followed by Cairo Court of Cassation in cases Nos. 2275 of 1953 and 2735 of 1953 — both reported in El-Fakahani, Book I, Vol. 1, pp. 268–270); vide also Murad, p. 221. The Explanatory Note to the U.A.R. Civil Code, mentions that section 675 thereof, was taken from section 446 of the Polish Code (Habeeb, p. 243).
i.e. Chapter II of Book II of the Labour Code, which regulates the individual contract of employment.
The Arabic word for ‘casual’ is Aradhi, which means ‘not liable to be repeated.’ This was the meaning adopted by the Council of State and all the U.A.R. writers; vide, for instance, Murad, p. 218.
Badawi, K. M., p. 41, discusses the casual and temporary qualifications of the work, as if they were synonyms; and so does the Council of State (vide The Labour Laws, a hand-book issued by the Ministry of Social Affairs in 1954, p. 348); El-Areef, p. 375, assumes that the qualification ‘temporary’ refers to the third condition without comment; and so does El-Fakahani, 1959, Supplement, p. 335; Naguib and Bakr, p. 198, correctly say: “If the work by its nature comes within the scope of the employer’s business, it is not casual work but temporary work, which deserves the application of the Labour Law, like seasonal work.”
Vide Habeeb, p. 219.
Vide Section II of this Chapter, supra.
Vide, for instance, Butros and Rajab, p. 50.
Seasonal workers were expressly mentioned to be entitled to the termination gratuity, in section 71 of the Labour Code (vide Chapter VII, infra). However, it is believed that such an express provision was not necessary, as such entitlement follows as a matter of course, from the application of the Labour Code to seasonal workers.
Section 2(f) of the Iraqi Labour Code excepts both casual and seasonal workers (vide El-Sa’eed, p. 18, who without making any comment on the exception of the seasonal workers, curiously attributes the exception itself to the inability of the authorities to supervise the application of the Labour Code to these persons, during the ‘unstable’ period of the six months prescribed by the said section); section 2(d) of the Kuwaiti Labour Code provides for the exception, subject to the fulfilment of the first and third conditions in the U.A.R.; section 1(2) of the Saudi Regulations excepts those who perform ‘petty work,’ which does not last for more than one week. Jordan, Libya, Lebanon and Tunisia do not make an exception of casual workers.
Vide the similar wording of the exception, in section 4(c) of the Bahraini Labour Code, except that the employer’s business is qualified by the words: “which is not conducted for profit”. So the Bahraini exception is narrower. The phraseology of the exception both in Sudan and Bahrain, seems to have been copied from the English Legislation (vide for instance, section 3 (2,b) of the Workmen’s Compensation Act, 1925). The Adenese Ordinance does not except casual workers.
“casual work” is defined in Webster’s Third New International Dictionary, as work “performed without regularity or at random”; and the word ‘occasional’ (used by the English writers sometimes, vide Diamond, p. 273), is classified in the Dictionary, as a synonym for the word “casual.”
It is believed that the trend of labour legislation should, for the fulfilment of social justice, be to cover casual workers by labour legislation. The fear that too many-obligations would as a result be placed on the employers of casual workers, is neither realistic nor serious, because the entitlements to leaves and to the termination gratuity, for instance, are restricted by certain conditions in the relevant legislation.
The Labour Code does not define ‘family.’ However, section 34 of the Civil Code provides: (1) A person’s family consists of his relatives, (2) Relatives are persons who have a common geneology.” Section 35 thereof provides: “Distant relatives are persons who have a common geneology, but are not directly related as descendants of one another.” Thus ‘family’ in the Labour Code, includes not only the members of the immediate family of the employer, but also his distant relatives with whom he shares a common geneology (vide Habeeb, pp. 221–2; Zaki, pp. 79–80; Habeeb, pp. 220–1; and Faheem, p. 12). However, the Explanatory Note to Law 317 of 1952, said: “Members of the family mean the ancestors and the descendants of the employer whom he actually supports.” This is narrower than the Civil Code definition. It is submitted that, although an exception should be interpreted narrowly, thus justifying the acceptance of the Explanatory Note definition, this acceptance is not legally correct, because there is a wider express definition in the Civil Code (vide, however, Murad, p. 222, who maintains the contrary view).
Section 2(c) of the Iraqi Labour Code provides for an exception, similar to that in the U.A.R.; section 7 of the Lebanese Labour Code, and section 1(2, b) of the Saudi Regulations, except the members of the immediate family of the employer, provided also that the employer’s establishment does not employ any worker who is not such family member (this is in line with the international trends, as developed by the I.L.O.: vide Butros and Rajab, p. 53); sections 1(2, b) and 2 of the Jordanian and the Libyan Labour Codes, respectively, provide for the exception of “members of the family employed in family undertakings,” without the proviso we saw in the Lebanese and Saudi exceptions; Kuwait and Tunisia do not contain exception provisions.
Butros and Rajab, p. 52, and Habeeb, p. 221, are of the opinion that actual support should cover support by order of the Court; Badawi, K. M., pp. 198–9; and Faheem, p. 12, adopt the contrary view, because they maintain that ‘compulsory support’ would do away with the close and presupposedly voluntary relationship between the members of the same family, in which the legislator did not want to interfere.
However, Butros and Rajab, p. 52, without comment, take the word to mean ‘totally supported.’
Of this opinion also, are Habeeb, p. 220; Faheem, p. 12; and El-Fakahani, 1959 Supplement, p. 336.
Section 4(d) of the Bahraini Labour Code provides for the exception in identical terms. The Adenese Ordinance does not contain a relevant provision.
Section 2 of the Sudan Ordinance, defines ‘member of the family,’ as the “wife, husband, father, mother, grandfather, grandmother, son, daughter, grandson, granddaughter, brother, sister, half-brother, half-sister, and in the case of a non-Moslem, in addition, step-father, step-mother, step-son and step-daughter.” This definition exludes distant relatives. Thus section 3(c) of the Sudan Ordinance is clearer than section 88(b) of the U.A.R. Labour Code. Vide in this respect, the Sudan case of Shawgi Khalil A kasha v. Heirs of Khalil Akasha (1958), AC-APP-34 (in the S.L.J.R., 1958, p. 67).
Section 2 of the Sudan Ordinance defines dependants as “those members of the family of an employed person who are wholly or in part dependent upon his earnings.” This definition is intended for the purpose of the entitlement of a deceased worker’s ‘dependants’ to his wages and termination gratuity (refer to Chapter VII, infra).
The Explanatory Note to the U.A.R. Labour Code, justifies the exception by saying: “Family relations are stronger than legal relations.” The debate in the U.A.R. Senate in 1944, which preceded the passing of the law No. 41 (which enacted in section 2(c), the exception under discussion for the first time), ran along the lines that “these persons will, because of their family relations with their employers, be treated generously.” These justifications were attacked by Murad, p. 221; Zaki, p. 80; Habeeb, p. 223; and El-Fakahani, 1959 Supplement, pp. 336–7, all of whom advocate the repeal of the exception. The first two correctly point out that the excepted persons would still be workers under the provisions of the Civil Code (section 674); Butros and Rajab, p. 53, attack the exception as “unsuitable for our social conditions, exept in very rare cases,” without discussing the exception. It is believed that the exception should be narrowed in the U.A.R., to its scope in Sudan, and that in the U.A.R., Sudan and the rest of the Arab countries, the exception should before long, be repealed altogether, as the law should not be justified in refraining from interference (and as a result, from the extension of the benefits), when it has not done so in the more personal relationships of husband and wife, and of parent and child. However, one exception should always be made in the case of a husband being employed by his wife, as the subordinate contract relationship would contradict with the marital authority of a husband over his wife, and thus be against public policy (vide Badawi, Z., Vol. I, p. 29 — only impliedly); section 61 of Book I of the French Labour Code — vide I. S. D. L., Vol. 10, 1934–5, p. 97 — provides to the same effect, and so does the French decision in Pautrat v. Gallo (1934) (in the same reference) . Such contradiction with marital authority, is also clear under the Moslem Law.
Such an express stipulation occurs in section 160 of the Labour Code, re right to form trade unions. But no stipulation was made in Chapter II, Book II, of the Code, regulating the individual contract of employment. >Section 2(1, b) of the Iraqi Labour Code contains a similar exception (section 901(2) of the Civil Code also excepts them and leaves them to ‘custom’); and so does section 2(e) of the Kuwaiti Labour Code, and section 1 (2, d) of the Jordanian Labour Code. Section 2(c) of the Libyan Labour Code simply excepts domestic servants, without the ejusdem generis provision in the U.A.R. Neither Saudi Arabia nor Tunisia seems to except domestic servants.
Zaki, p. 62, says: “Domestic servants mean persons who perform work closely and directly connected with the person of the employer or of the members of his family, like the cook or the baby-nurse; or work closely but indirectly connected as aforementioned, like the private driver or the guardsman of the employer’s house” (he deduced this definition from Cairo Court of Cassation decision in case No. 1072 of 1956 — reported in El-Fakahani, Book I, Vol. 1, p. 63); El-Areef, p. 142, defines them as “those who do work in private dwellings, by helping occupants in their domestic life, whether in their food or their clothing, or in other words, private dwellings workers” (his emphasis on the dwellings, derives from the Latin word domus); then he refers without commitment, to the French writers who advocate leaving the definition to ‘custom.’ However, as appears from the Court decisions to be mentioned presently, in the cases of porters, cooks etc..., the Courts have on the whole, adopted the above-mentioned justification of the exception in the Explanatory Note, as a basis of the definition of the domestic servant. But the Council of State in an opinion rendered on 24 July 1957 (vide Habeeb, p. 235), did not accept the said justification in toto, as it rejected the criterion of secrecy and privacy, thus widening the scope of the exception.
A distinction was made by the Courts, between a porter or a guardsman in the private dwelling of the employer, and the porter in a commercial housing block. The latter was held by the majority of Court decisions, not to be a domestic servant (Cairo Labour Court in case No. 2768 of 1953; and Cairo Court of Cassation in case No. 214 of 1955 — these and other relevant decisions are reported in Habeeb, pp. 235, 237 and 239 — vide contrary decisions in El-Fakahani, Book I, Vol. I, pp. 71–91).
Vide Cairo Court of Cassation in case No. 1481 of 1954 (in El-Fakahani, Book I, Vol. I, p. 232); and Cairo Labour Court in case No. 1034 of 1958 (in El-Hawwari, p. 15). — Cf. with Cairo Court of Arbitration in dispute No. 4 of 1954 (in Fakahani, Book I, Vol. I, p. 233).
Vide Cairo Labour Court in case No. 5683 of 1954 (a private cook); and the same Court in case No. 3611 f 1955 (an assistant private cook) — both held to be domestic servants (in El-Fakahani, Book I, Vol. I, pp. 228–9); the same Court extended the exception to a cook in a school, in case No. 2320 of 1955 (Ibid., p. 221). It is submitted that the last decision is wrong; vide also the same Court in recent decisions, similar to the above-mentioned first two decisions in cases Nos. 2717 of 1959 and 3655 of 1955 (both in El-Hawwari, pp. 47–8).
Vide Cairo Court of Cassation in case No. 1312 of 1955 (in El-Fakahani, Book I, Vol. I, p. 215: “a driver of a businessman is not a worker, unless his work is closely connected with the business of the employer”); vide footnotes 225 and 226, supra.
Vide Cairo Labour Court in case No. 3833 of 1954 (in El-Fakahani, Book I, Vol. I, p. 67); and the same Court in case No. 2863 of 1960 (in El-Hawwari, p. 51), both of which decided that a gardener in a private house, is a domestic servant. So a gardener in any place other than a private house, would not be a domestic servant.
The Domestic Servants Regulations of 8 November 1916 in the U.A.R., dealt only with their identity cards. In 1948, a Bill was drafted to provide protection for domestic servants. The Bill was passed by the House of Representatives, but it was not passed by the Senate. This was understandable, because the Senate was packed with Pashas, who employed the greatest number of domestic servants (vide Butros and Rajab, p. 67). The blocking influence of these Pashas, seems to have extended also to the Drafting Committee of the Civil Code of 1948. Section 938 of the Draft Civil Code of 1948, contains a provision to deprive domestic servants of even the thin protection of the Civil Code and to leave them to ‘custom’ (vide section 901(2) of the Iraqi Civil Code which enacts exactly what the said section 938 contains). But what is not understandable is that no law up to the present times, had been enacted for the prupose. The legislator curiously enough, found it fit to ‘promise’ in express terms, the enactment of such law in section 2(g) of Law 41 of 1944; and he reiterated the promise in the Explanatory Note to Decree Law 317 of 1952. So the regulation of the employment of domestic servants was and still is, in the major part, left to ‘custom’ (vide Rashed and Hashem, p. 8).
Vide Zaki, p. 62, who believes that a domestic servant’s work should be limited to manual work, because custom does not usually treat ‘employees’ as domestic servants (he presumably depends on French jurisprudence, vide footnote 242, supra); of the same opinion are El-Areef, p. 143 (though only impliedly); Badawi, K.M., p. 63; and Faheem, p. 15. Butros and Rajab, pp. 65–6; and Habeeb, p. 241–2, are of the contrary opinion. They believe that the restriction of the domestic servant’s work to manual work, is not legally warranted.
Vide Murad, p. 140; Hebeeb, pp. 237–8; Badawi, K.M., p. 63; Naguib and Bakr, p. 27; and Faheem, p. 15 (who quotes Cairo Court of Cassation on 13 November, 1952, as an authority), believe that the benefit of the doubt should be given to the servant, and thus would consider him a worker. Butros and Rajab, p. 65, on the other hand, believe that if the extra work is trivial, the original work would be the determinant factor. If it is not, they advocate the double capacity, i.e. a person being a domestic servant and a worker, at the same time.
Cairo Court of Cassation in case No. 229 of 1953 (in El-Fakahani, Book I, Vol. I, p. 63): “The widening of the exception is contrary to justice, in its widest sense.”
The Domestic Servants Ordinance of 1921 (now repealed by the Domestic Servants Ordinance of 15 May 1955 — in The Laws of the Sudan, Vol. 8, Title XXII, Sub-Title 3). This Ordinance affords to domestic servants in Sudan, the protection they lack in the U.A.R.
Section 5(a) of the Bahraini Labour Code, partially excludes domestic servants from the Code. In Aden there does not seem to be any special enactment for domestic servants.
Erle, C. J. of England, in Nicoll v. Greaves (1864) 17 C.B.N.S. 27. The distinction between menial and domestic servants in England (vide Cooper, p. 54), is not material in Sudan.
Vide I.L.R., Vol. 30, 1934, for an interesting article in two parts (p. 190 and 336, respectively), entitled The Social, Economic and Legal Conditions of Domestic Servants, by Dr. Erna Magnus. The theme of the article is that “the main aim should be to extend the improvements made during the last few decades in the living and working conditions of all workers as far as possible, to domestic servants” (p. 363). This is all the more necessary, because “for domestic servants, the individual contract of employment is the rule”. Vide, however, Industry and Labour (hereinafter called I. & L.), which used to be published by the I.L.O., Vol. VI, 1951, p. 373, for an interesting attempt to make a collective agreement for domestic servants in France.
Section 5 of the Order promulgating the Labour Code, made a transitional exception for Syria, where Government workers were left to the provisions of the (repealed) Syrian Labour Code of 1946, by which they used to be covered. Section 2(1, h) of the Iraqi Labour Code only excepts Government civil and military officials and employees, whereas section 2(1, g) used, before its repeal by Law 71 of 1959, to except Government workers. Section 2(c) of the Kuwaiti Labour Code excepts workers who are protected by the 1955 special Labour Code for Government Workers. Section 7 of the Lebanese Labour Code excepts all Government employees and probation or daily-paid workmen, who not being covered by the Officials Regulations, would as a special measure, be delat with separately (vide Order No. 7 of 15 February 1961, as such special measure. Summary thereof can be referred to in I. & L., Vol. 26, 1961, pp. 376–8). Section 1 of The Jordanian Labour Code excepts Government and municipal ‘officials.’ Section 3 of the Libyan Labour Code excepts Government ‘workers’ if they are governed by special legislation. Saudi Arabia and Tunisia impliedly except all Government workers.
For the different types of these establishments (public, economic and administrative), vide Zaki, pp. 49–55. Section 3 of Law 265 of 1960, empowers Economic Public Establishments to form subsidiary companies and own them exclusively. The said author (in p. 54) expresses his belief that workers of such companies do not fall under the exception in section 4 of the Labour Code. It is believed that he is correct, because such companies are legal persons separate from their owning companies. This also accords with a narrow interpretation of the said exception.
Ibid., p. 49.
Vide El-Hawwari, pp. 22–46, for cases which decided that the following fell within the exception: The Co-operative Agricultural Loans Bank, the Military Factories, the General Administration of the Suez Canal, the Land Reclamation Office, the Petroleum General Administration, Kasr-El-’Ayni Public Hospital, The Alazhar University and the Public Transport Administration. The National Theatre, though supported by public funds, was however, held not to fall within the exception.
Vide Cairo Court of Appeal in appeal No. 73 of 1959 (in El-Hawwari, p. 35).
Vide the Council of State, in its opinion No. 903 dated 26 January 1957 (in Habeeb, p. 585); and Cairo Court of Cassation in case No. 1029 of 1958 (in El-Hawwari, p. 40).
The Government Provident Fund Ordinance of 1 July 1930, can be referred to in The Laws of the Sudan, Vol. 1, Title II, Sub-Title 2. The exception from the Bahraini Labour Code, is limited in section 4(a) to “members of the Bahraini State Police, or any other security force approved by the Government of Bahrain.” The definition of the employer in section 3 (h) of the Bahraini Labour Code, includes the Government and any municipality, as is the case in Sudan. Section 21 of the Adenese Ordinance excepts all those in the Government military and civil service, from the Ordinance.
Section 3(g) of the Sudan Ordinance excepts from its provisions, “any class of persons whom the Council of Ministers may by order declare not to be employed persons for the purposes of the Ordinance.”
These rules can be referred to in The Laws of the Sudan, Vol. 8, p. 136. They were issued by virtue of section 34 of the Sudan Ordinance. They except from the Ordinance, “members of the Government Police Force, Prison Officers and Warders of the Government, and Officers and Officer Cadets, non-Commissioned Officers, men and enlisted boys of the Sudan Army”.
The main benefit granted by the Government Provident Fund Ordinance, which is more generous than its counterpart in the Sudan Ordinance, is the ‘termination gratuity,’ to which the subscriber would be entitled on the termination of his service. But the Government Provident Fund is no more than the more ‘generous’ provident fund opereated by any employer, as envisaged by section 27 of the Sudan Ordinance (vide Chapter VII, infra). This does not justify the exception of provident fund subscribers from the Sudan Ordinance, so as to make their leave a privilege and not a right, for instance.
For the legal position of Crown Servants in England, vide Batt, pp. 34–6; Smith, p. 40; and Halsbury, pp. 449 and 483. The position there seems to be that a Crown Servant holds his office ‘not during good behaviour’ (i.e. not by virtue of a contract with him binding on the Crown), but ‘at the pleasure of the Crown.’ This position was not very much affected by the Crown Proceedings Act 1947 (10 & 11 Geo. VI, C. 44), whose main effect was that “actions in contract, which formerly could only be pursued by petition of right upon the Fiat of His Majesty, may now be brought against the Crown as ordinary actions of contract.” (Batt, p. 36)
Though it is understandable that all Governments should be unfettered by the contract of employment obligations, in their relations with certain classes of officials, they cannot be justified in extending this prerogative to all or the majority of those in their service. Differentiation between ‘workers’ in the Government and ‘workers’ of private employers, may in many cases mean the unacceptable desire of a Government to abstain from carrying the financial burdens resulting from the Labour Code, while it expects the private employers to carry them.
The Explanatory Note to the Labour Code, states that “this Chapter is new in the Egyptian Region and is on the lines of what was effective in the Syrian Region.” The said Chapter is Chapter I of Book II of the Labour Code, comprising sections 37 ot 41 (both incl.).
Of this opinion are El-Areef, p. 81; Badawi, Z., Vol. I., p. 43; Rashed and Hashem, p. 9; and Faheem, p. 5. Section 971 of the Draft Civil Code of 1948, contains provisions giving priority to the regulatory effect of ‘custom’ on the apprenticeship contract, but otherwise applies the contract of employment provisions (Law 41 of 1944, at that time), to apprenticeship. This section was not adopted in the Civil Code. However, these provisions were adopted in section 926 of the Iraqi Civil Code. Section 1(2) of the Jordanian Labour Code expressly includes apprentices in the definition of a worker. Section 21 of the Kuwaiti Labour Code, section 6 of the Saudi Regulations, and section 9 of the Libyan Labour Code, seem to limit a contract of apprenticeship to minors. Section 20 of the Lebanese Labour Code expressly excludes apprentices.
Vide Murad, p. 239; and Zaki, p. 221. Sections 7 and 160 of the Labour Code, re exemption from judicial fees and formation of trade unions, respectively, make an express reference to apprentices. Section 2 of Law 92 of 1959, re social security, expressly includes apprentices. Another advocate of the second opinion for the same reasons, is Badawi, K. M., pp. 70–1, who, however, quotes Cairo Labour Court in case No. 5517 of 1953, as an authority for the distinction, between an apprenticehsip contract and that of a student with his school. Cairo Labour Court in case No. 4433 of 1955 (in Butros and Rajab, p. 26), also supports the second opinion, and in addition, justifies it by the injustice that may result to the employer from imposing upon him the financial burdens of the Labour Code, while his return from the apprentice does not balance with these burdens. Section 569 of the Majallah indicates that the Moslem Law is also of the said second opinion. As we shall see later, the English Common Law is of the same opinion.
El-Fakahani, Book I, Vol. I, p. 30; Habeeb, pp. 263–4; and Butros and Rajab, p. 26. These authors, however, concede that when an apprenticeship contract is a contract of employment, it is not yet completely so, except on the termination of the apprenticeship period.
Section 43 of the Labour Code is quoted and discussed in Chapter II, infra.
Order 197 of 1959 was issued by virtue of section 39, to limit the duration of the contract and deal with the other matters mentioned in the section.
Vide I.L.R., Vol. 84, 1961, p. 478, for an interesting Article by Dr. M. El-Arabi, entitled A Modern Apprenticeship Scheme in the United Arab Republic. This Article in p. 483, says: “Since the apprentice was to be considered as a trainee rather than a worker, certain stipulations had to be included in the agreement in order to safeguard his interests”. E. Herz, in an Article in the I.L.R., Vol. 31, 1935, p. 849, says: “contracts of apprenticeship and the like, may also be left out of consideration here, since they belong to general social policy as part of the problem of vocational training rather than to the special case of the contract of employment.” The I.L.O. Apprenticeship Recommendation No. 60 of 1939 (which it is believed, was one of the references for drafting Order 197 of 1959 — vide footnote 274, supra) seems to indicate the treatment of the apprenticeship contract as sui generis.
The Apprenticeship Ordinance of 21 June 1908 (in the Laws of the Sudan, Vol. 8, Title XXII, Sub-Title 2), does not, however, define an apprentice. Batt, p. 421, defines an apprentice as “one who is under contract to serve a master for the purpose of learning a trade, profession or calling, the consideration for his obligation of faithful, diligent and obedient service, being the promise or duty of the master to use his best endeavours to teach the apprentice” — Note the similarity between the first part of this definition, and the definition of the apprentice in section 37 of the U.A.R. Labour Code. Section 5 of the Apprenticeship Ordinance in Sudan, makes the contracting capacity of an apprentice sixteen years and upwards, whereas the capacity of an ‘employed person’ to enter a ‘contract of service,’ was set at fifteen years by section 2 of the Sudan Ordinance. Section 5(f) of the Bahraini Labour Code, partly excludes apprentices. Section 4 of the Adenese Ordinance, excludes apprentices, in terms similar to those in Sudan.
“By a contract of apprenticeship, a person is bound to another for the purpose of learning a trade or calling, the apprentice undertaking to serve the master for the purpose of being taught, and the master undertaking to teach the apprentice. Where teaching on the part of the master, or learning on the part of the other person, is not the primary but only an incidental object, the contract is one of service rather than of apprenticeship.” (Halsbury, Vol. 25, p. 451); vide Diamond, pp. 33–5 and 57; Cooper, pp. 22, 88 and 93; Samuels, pp. 1, 3 and 4–5; Batt, pp. 424, 426, 427 and 428; and Smith, pp. 33–4 (who emphasises that the test in England, is the intention of the parties). For India, vide Barwell and Kar, pp. 157–83.
The lack of clarity in the U.A.R. is regrettable, as it may result in the deprivation of apprentices of the protection they need. On the other hand, though the Sudan law is clear, the Apprenticeship Ordinance is long outdated and should be replaced by a new law, providing apprentices with better protection.
Refer to Part I, supra.
Section 901(1) of the Iraqi Civil Code, however, contains provisions similar to section 937 of the U.A.R. Draft Civil Code of 1948. The power of land-owners seems to have been stronger in Iraq than in the U.A.R., at that time.
Section 13 of the Presidential Order promulgating the Labour Code, makes the Code applicable to “agricultural workers in the Syrian Region, in all matters not covered by (the Syrian) Law No. 134 of 1958, concerning agricultural employment relationships in the Syrian Region.” The Kuwaiti Labour Code does not exclude agricultural workers. Section 1 of the Saudi Regulations expressly applies the Regulations to them. Section 2(1, a) of the Iraqi Labour Code excludes them, unless they operate mechanical agricultural appliances, or they receive cash remuneration (by virtue of Law 82 of 1958). Section 2(b) of the Libyan Labour Code excludes them, unless they work in establishments which partially or totally manufacture their agricultural produce, or they operate or maintain mechanical agricultural appliances. Sections 1 (2, c) and 7(2), of the Jordanian and Lebanese Labour Codes, respectively, expressly exclude agricultural workers.
Section 5(b) of the Bahraini Labour Code excepts “persons employed in agriculture, other than persons employed in the operation, repair and maintenance of mechanical appliances and devices.” Note the similarity between the rest of the Sudan saving from the exception, and section 2(b) of the Libyan Labour Code (in footnote 281, supra).
Sections 4 and 5 of the Sudan Ordinance are quoted and discussed in Chapter II, infra. The wording of section 5(b) of the Sudan Ordinance was copied from Article 2(1, b) of the Contracts of Employment (Indigenous Workers) Convention No. 86 of 1947.
Vide Cairo Court of Appeal in appeal No. 494 of 1955 (in El-Fakahani, Book I, Vol. I, p. 174); and vide Murad, p. 218.
The Labour Codes in Iraq, Kuwait, Jordan and the Lebanon, do not except Maritime workers. Section 1(1, d) of the Saudi Regulations expressly covers maritime workers; and so does section 2 of the Tunisian Labour Code. Section 2(d) of the Libyan Labour Code excepts them, as “they are regulated by the Libyan Merchant Shipping Act or any other special Law.”
Al-Jaridat-ul-Rasmiyyatu, No. 158 (bis), dated 20 June 1959 (in Arabic), vide the reference thereto in I. & L., Vol. 23, 1960, p. 282.
Vide Al-Waseet Fi ’Akd El ‘Amol El-Fardi, by Sabbour, F. A., 1961, Cairo, in Arabic (hereinafter referred to as Sabbour), p. 570.
Section 14 is quoted and discussed in Chapter IV, infra.
There is no maritime shipping legislation in Sudan. The writer has, however, taken part in the preparatory work for the enactment of such legislation, while serving as a Legal Counsel in the Ministry of Justice in Sudan. Section 5(d) of the Bahraini Labour Code expressly covers maritime workers. Section 21 of the Adenese Ordinance excludes seamen, who are covered by the “Merchant Shipping legislation in force in the Colony.”
This Law (Law 158 of 1959) does not grant to maritime workers any termination gratuity, whereas the Sudan Ordinance grants it to them. Vide, however, Sabbour, p. 572, where he submits that maritime workers in the U.A.R., would be entitled to the said gratuity, under the Labour Code.
In Iraq, section 2(1, e) of the Labour Code excludes persons who work in workshops, where no mechanical power is used, and less than five persons are employed; and so does section 2(f) of the Kuwaiti Labour Code. Section 2(1, i) of the Iraqi Labour Code also excludes those whose remuneration consists of a share in the profits, or a percentage in the products or in sale or in tips (vide footnote 204 to this Chapter, supra). Sections 1 (2, c) and 2(b) of the Jordan and Libyan Labour Codes, respectively, exclude shepherds. Section 1 (2, c) of the Saudi Regulations excludes “compulsory work prescribed by law, for the benefit of the society.”
The uncommendable effect of this empowering provision, was pointed out in category (D), supra.
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Hashem, H.R. (1964). Definitions. In: Arab Contract of Employment. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6306-6_2
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