Abstract
Section 3 of the U.A.R. Labour Code provides:
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“Wages shall for the purposes of this Code mean all that is given to the worker including all kinds of allowances in return for his work irrespective of its nature and particularly the following:
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1.
the commission paid to local salesmen, commercial representatives (and) travellers,2
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2.
the privileges in kind and the cost of living and family allowances paid to them,3
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3.
any bonus or other sums given to the worker over and above his wages as a reward for his honesty or efficiency and the like if these sums are provided for in the individual or collective contracts of employment or in the work rules or if the payment thereof has grown into a custom so that the workers consider them a part of the wages and not mere ex-gratia payments.
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1.
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“Tips shall not be considered a part of the wages unless their payment has grown into a custom and their amounts can be assessed by fixed rules.
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“In certain classes of business such as hotels restaurants cafés and bars it shall be permissible that the worker’s wages consist only of the tips he receives and the food he eats provided that the value thereof can be assessed by rules fixed in the contract of employment.”4
The word ‘remuneration’ is sometimes used, instead of ‘wages’. These two words are synonymous. The word ‘wages’ was preferred, because it is more familiar.
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References
It is submitted that the word ‘and,’ between the words ‘representatives’ and ‘travellers,’ was omitted by oversight, as is the case in section 676 of the Civil Code (vide footnote 202 to Chapter I, supra); and that the omission of the ‘insurance agents’ in section 3, is also an oversight, because they are mentioned in the said section 676, by which the provisions of section 3 are partly inspired — the supplementary inspiration coming from sections 683 and 684 (vide Zaki, p. 103).
It is submitted that the word ‘privileges’ is not the proper word, because the intent is ‘benefits,’ nor is the word ‘them,’ because the intent is ‘him,’ referring to the worker in the commencing provisions of the section.
Vide and cf. the definitions in sections 29, 2(6), 2(8) and 1, of the Kuwaiti, Qatari, Jordanian and Libyan Labour Codes, respectively. The Saudi Regulations, and the Iraqi, Lebanese and Tunisian Labour Codes do not contain any express definitions; and the reference therefor, should be made to the definitions of the contract of employment, the employer or the worker (refer to Chapter I, supra), as the case may be.
Vide the definition of the worker, in Section II of Chapter I, supra.
Once wages are so defined, it is not of any relevant importance that wages are time or piece-work wages, or a combination of both (vide El-Areef, pp. 261 and 294–7).
Express reference to ex-gratia payments, is made in the said section 3 of the Labour Code, in respect of bonuses; vide the discussion on remuneration in Section I of Chapter I, supra.
Vide section 179 of the U.A.R. Civil Code, for the provisions on unjust enrichment, L’enrichissement sans cause, as it is called in French; vide also Cairo Court of Cassation (Commercial) in case No. 2353 of 1953 (in Habeeb, pp. 36–7); and vide El-Areef, p. 260; and Murad, pp. 270–1.
Basic pay is defined in the same section, as the “basic rate of remuneration payable to an employed person by an employer but excludes all other remuneration.”
Vide a similar definition in section 3(9), read with section 3(b) of the Bahraini Labour Code. The Adenese Ordinance does not contain any definition; but section 12 of the Minimum wage and Wages Regulations, bears some similarity to the Sudan definition, though not as much as the Bahraini definition. The definitions in Sudan, Bahrain and Aden, seem to have been inspired by Article 1 of the I.L.O. Protection of Wages Convention No. 95 of 1949.
Vide the definition of the contract, in Section I of Chapter I, supra.
Vide footnote 26 to Chapter I, supra, and the related text.
The worker’s benefits are mainly his leaves (vide Chapter V, infra), his payment in lieu of the notice of the termination of the contract, and compensation for the unjustifiable or wrongful dismissal (vide Section II of Chapter VI, infra), and his termination gratuity (vide Chapter VII, infra). For the protection of wages, vide Section II of this Chapter, infra.
This was the first recognition of the permissibility of the wages to be in kind, in the Labour law (vide Habeeb, p. 572). However, the U.A.R. Civil Code made an earlier recognition of the same, generally in section 350, and particularly in section 684, which permits the provision of food to be wages in certain classes of business. The said permissibility is what distinguishes wages from a selling price, which has to be in money by virtue of section 418 of the Civil Code; vide, however, section 463 of the Majallha, which permits any thing which is good as a selling price, to be good as wages.
Vide Badawi, K.M., p. 95; vide also Zaki, p. 87; and Habeeb, pp. 51 and 52, both of whom say that the use of a land can also be wages in kind.
Vide the Alexandria Court of Appeal in the appeal on dispute No. 210 of 1950 (Rashed and Hashem, p. 30); and Cairo Labour Court in case No. 4958 of 1959 (in El-Hawwari, p. 104); vide also Zaki, p. 88; and Habeeb, p. 52. Section 948 of the Draft Civil Code of 1948, which was not adopted, contains an express mention of food and housing as kinds of wages; vide the French case of Martin v. Limonsis (1931), Sirey, 1931, 1, 175 (in I.S.D.L., Vol. 7, 1933, p. 126).
Vide Cairo Court of Appeal in appeal No. 374 of 1958 (in El-Hawwari, p. 103); vide also El-Areef, pp. 262–3 (who quotes in support, a French decision taken on 4 November 1937, Dalloz Hebdom, 1938, p. 50); Murad, p. 298; Habeeb, pp. 53–6; and El-Fakahani, 1959 Supplement, p. 54. Butros and Rajab, p. 93, say the same thing impliedly, adding that the circumstances of every case should be discussed separately, so as to determine whether the worker has come to depend on housing, food and clothing, as part of his wages.
Vide Cairo Court of Cassation in case No. 1287 of 1954 (in Habeeb, p. 56). It is submitted that Faheem, p. 63, is without saying more, wrong in stating that the value of free housing is wages.
This is also applicable to any such provision of housing, by virtue of section 64 of the U.A.R. Labour Code (vide Section I, G, of Chapter III, supra).
Vide the Cairo Court of Arbitration in dispute No. 111 of 1954; the Alexandria Court of Arbitration in dispute No. 14 of 1955; and Zakazeek Court of Arbitration in dispute No. 29 of 1954, (all three in Habeeb, pp. 54–5); vide also Murad, p. 298; Butros and Rajab, p. 73; and Faheem, p. 42.
Subject to the provisions of the Truck Act 1831, re workmen (vide footnote 89, infra), the same applies in England: vide Cooper, p. 36, who quotes some authorities, to the effect that “the grant of food and lodging may amount to consideration”; vide also Smith, p. 135; and Barwell and Kar, p. 235. However, the Adenese provisions (vide footnote 10, supra), expressly exclude housing and food, from the definition of wages. Vide Article 4 of the I.L.O. Protection of Wages Convention No. 95 of 1949, which permits, but puts limitations on the remuneration in kind; vide also Article 15(7) of the Social Policy (Non-Metropolitan Territories) Convention No. 83 of 1947.
Vide Hughes v. The Overseers of the Parish of Chatham (1843), 5 Man & G. 54, in which it was said: “A master may pay his servant by conferring on him an interest in real property... But it may be, that a servant may occupy a tenement of his master’s, not by way of payment for services, but for the purpose of performing them.” Vide section 16 of the Sudan Ordinance, in Section III, A, of this Chapter, infra. This section also permits the tillage of the land, to be wages in kind (vide footnote 15, supra, for comparison with the U.A.R.).
Section 683 of the U.A.R. Civil Code expressly provides that “commissions payable to local salesmen and commercial travellers and representatives,” and “the sale-percentages payable to the workers of commercial establishments,” shall each be “an integral part of the wages”; this can also be deduced from the provisions of section 676 of the Code (vide the section quoted in Section III of Chapter I, supra, and Section III of the present Chapter, infra); vide also Cairo Court of Cassation in case No. 430 of 1960, on commissions; and Cairo Labour Court in case No. 568 og 1960, on percentages, (both in El-Hawwari, p. 100); and Cairo Court of Appeal in appeal No. 132 of 1948, on percentages, (in Naguib and Bakr, p. 11); and vide El-Areef, pp. 268 and 269; Murad, p. 296; Zaki, p. 99; Habeeb, p. 61; and Faheem, pp. 37 and 38, where he distinguishes between commissions and percentages; section 64 of Book I of the French Labour Code, considers commissions as wages (vide I.L.R., Vol. 32, 1936, p. 337). For Sudan, vide in addition to the definition of wages (which permits this kind of remuneration by implication): Cooper, p. 13; Macdonell, pp. 41–2; and Barwell and Kar, pp. 235–6.
Vide Habeeb, p. 127; Zaki, p. 97 (who adds in p. 99, that the share of the profits is wages, even though it is prescribed by law, and he mentions in p. 122, Law No. 26 of 1954, as an example); and Butros and Rajab, p. 114, who also list the dates of the introduction of the profit-sharing in France, England and the U.S.A., as 1820, 1860 and 1869, respectively. For Sudan, vide in addition to the definition of wages (which permits this kind of remuneration by implication): Smith, p. 33; Macdonell, pp. 41–2; and Barwell and Kar, p. 236. Section 691 of the U.A.R. Civil Code obliges the employer to “furnish the worker after each stock-taking with an account of what he owes to him”; and for the purpose of verification, the employer should also give the necessary information to, and permit the inspection of his accounting books by the worker, or any other trusted person, appointed for the purpose, either by the two parties or by the Judge. In Sudan there is no such statutory provision. But reference to the English Common Law reveals almost identical obligations on the employer: vide Harrington v. Churchward, 29, L.J. Ch. 521; Rishton v. Grissell, 5 Eq. 326; and Turner v. Bayley, 4 De G.J. & Sm. 332, as authorities to the effect in question.
Nor does section 683 of the U.A.R. Civil Code, from which the relevant provisions of section 3 of the Labour Code, are inspired. Section 683 provides that “every bonus given to the worker over and above his wages and sums given to him as a reward for his honesty or for his increased family responsibilities and other similar sums,” shall be considered as integral parts of the wages, “if they are provided for in the individual or collective contracts or in the work rules or their grant has grown into a custom so that the workers consider them a part of the wages and not mere ex-gratia payments provided that the amounts thereof shall be ascertained before the attachment.”
Vide the High Court of Appeal in two appeals decided on 28 November 1957 and 11 February 1960 (both in Zaki, p. 95); Alexandria Court of Appeal in an appeal decided on 6 January 1953 (in Faheem, p. 40); Cairo Court of Arbritation in dispute No. 221 of 1954, (in Habeeb, p. 110); Cairo Court of Cassation in case No. 1591 of 1957, (in El-Hawwari, p. 94); and Cairo Court of Appeal in the two appeals Nos. 64 and 81 of 1959 (Ibid., pp. 93 and 95), respectively; vide also Murad, p. 302; Naguib and Bakr, pp. 14–5, and the above-mentioned references Zaki, Faheem and Habeeb; all this seems to be inspired by the French Law: vide Zaki, pp. 93–4, who, however, believes that the word ‘custom’ in the U.A.R. legislation, is not the same as that in France, because the former amounts to no more than a ‘permanent usage.’
Zaki, p. 94, criticises this subjective test as being wrong, because prima facie a bonus or reward is voluntary, and it is the employer’s intention which should be ascertained. However, it is submitted that the intent of the two parties should be ascertained, with a special leaning towards the worker, because he is the taker and not the giver of the bonus or reward.
El-Fakahani, 1959 Supplement, pp. 56–7, submits to the same effect, re the bonus, but comprehensiveness stays with him as a pre-requisite also for the reward; Rashed and Hashem, pp. 22 and 25, submit that continuity and non-variability are sufficient, both for the bonus and the reward; Badawi, K.M., p. 96, insists that non-variability is a prerequisite for both. Those who insist on the non-variability, concede that a non-variable minimum is sufficient to satisfy the requirements: vide Rashed and Hashem, pp. 22–3; Habeeb, p. 114, where he quotes in support, the Cairo Court of Arbitration in disputes Nos. 78 and 118 of 1953; and the Alexandria Court of Arbitration in dispute No. 25 of 1954; another decision in support, is the Cairo Court of Arbitration in dispute No. 189 of 1954 (in El-Fakahani, Book I, Vol. I, p. 543); vide also Faheem, p. 40.
Cairo Court of Appeal in the appeal on dispute No. 193 of 1953 (El-Fakahani, Book I, Vol I, p. 550); and the same Court in the appeal on dispute No. 99 of 1957 (in El-Hawwari, p. 98); Cairo Court of Arbitration in dispute No. 78 of 1953; and the Alexandria Court of Arbitration in dispute No. 57 of 1956 (both in Habeeb, p. 115); vide also Murad, pp. 302–3; El-Fakahani, 1959 Supplement, p. 59; Butros and Rajab, p. 98; Naguib and Bakr, p. 15; and Faheem, p. 40. Rashed and Hashem, p. 28, however, believe otherwise; and they in page 27, quote in support, Alexandria Court of Cassation in case No. 159 of 1950. It is submitted that they and the said decision are wrong.
Vide Cairo Labour Court in case No. 1339 of 1953 (in Faheem, p. 41); Alexandria Court of Appeal in appeal No. 143 of 1954, (in Habeeb, p. 117); and the Cairo Court of Cassation in case No. 1083 of 1955 (Ibid., p. 118). Contrary decisions are the Cairo Court of Cassation in case No. 2490 of 1953 (in El-Fakahani, Book I, Vol. I, p. 552), and the appeal thereon No. 1104, decided by the Cairo Court of Appeal on June 14, 1955 (Ibid., p. 553). It is submitted that these contrary decisions are wrong. Vide also Murad, p. 303; El-Areef, p. 279; Naguib and Bakr, p. 16; El-Fakahani, 1959 Supplement, p. 58; Butros and Rajab, p. 98; and Badawi, K.M., p. 105.
In England “the bonus is not wages”: Batt, p. 128, and he quotes Deane v. Wilson (1906), 2 T.R. 405, as an authority. It is, however, submitted that this does not preclude the bonus from being wages, by virtue of the contract of service, or by virtue of a custom.
Samuels, p. 42.
Diamond, pp. 181–2, who quotes Foxall v. International Land Credit Co. (1867), 16 L.T. 673; and Devonald v. Rosser (1906) 2 K.B. 728, as authorities; vide also Samuels, p. 10.
Section 683 of the U.A.R. Civil Code also considers them wages (vide footnotes 22 and 24, supra); vide also Cairo Court of Cassation in case No. 842 of 1959 (in El-Hawwari, p. 95). Zaki, p. 96, points out that the definition of wages in the Labour Code, classifies the said allowances as wages, without any condition, whereas the Civil Code wrongly subjects the entitlement to the family allowances, to the custom mentioned in section 683 thereof. It is submitted that he is correct, and that section 3 of the Labour Code supersedes in this respect, the provisions of section 683 of the Civil Code. Before the Civil Code, the wartime Military Order No. 358 of 1942 (vide Al-Jaridat-ul-Rasmiyyatu No. 221 dated 9 December 1942), which was the first enactment to prescribe the payment of the cost of living allowance and the family allowances, to workers in commercial and industrial establishments, classified them as wages — This Order was renewed yearly, and has since 1950, been kept effective, by Order No. 99 of 1950 (Ibid., No. 32 bis, dated 21 February 1950), and in due course, by section 4 of the Presidential Order issuing the U.A.R. Labour Code (Ibid., No. 71 bis B, p.l dated 7 April 1959) — vide Cairo Court of Appeal in an appeal decided on 18 January 1948 (in Badawi, K.M., p. 293). In France it was held in Mercier v. Chemins defer de l’Est, on 26 March 1935, (Gaz. du Palais, 1935,1, 933), that the family allowances, prescribed by the Act of 11 March 1932 (section 74 et seq. of Book I of the French Labour Code), were as much wages, as those which were voluntarily granted before the said Act; cf. this with the decision in Vernet v. Compagnie d’assurances La Préservatrice, on 25 December 1935, (Gaz. du Palais, 1935 20, 12), in which it was held that the said family allowances were not wages for work done, but statutory payments for the benefit of the worker’s family — vide these two decisions in I.S.D.L., Vol. 11, 1937, pp. 125 and 123, respectively.
Vide Murad, pp. 306–7, where he confirms that the common fund provision is no more than a substitute for the assessment by fixed rules.
This ascertainment provision is a novelty, as it does not exist in the last paragraph of section 684 of the Civil Code, from which the relevant provisions of section 3 of the Labour Code were copied. Whether these tips are wages for, and can be distributed among the workers, in the said classes of business (whether they are in direct contact with the customers or not), is not finally settled. Section 951 of the Draft Civil Code (which was copied from section 42 of Book I of the French Labour Code: vide Habeeb, p. 103); expressly excluded the workers, who were not in direct contact with the customers. The non-adoption of the said section 951 led some Courts and writers to take the same, as a tacit approval of the contrary view: vide Cairo Court of Arbitration in dispute No. 291 of 1954 — in Habeeb, p. 102; and Cairo Labour Court in case No. 1572 of 1960 — in El-Hawwari, p. 102; vide also Badawi, K.M., p. 176; and Butros and Rajab, p. 18. Others stick to the view in the said unadopted section 951, because they maintain without further detail, that the provisions of the general law demand this view: vide Cairo Court of Arbitration in dispute No. 57 of 1953 — in Habeeb, p. 102; and the same Court in dispute No. 206 of 1954 — in Butros and Rajab, p. 18; vide also Rashed and Hashem, pp. 29–30; Zaki, p. 104; and Habeeb, p. 102. It is submitted that the answer to the question, depends in the first instance, on any agreement on the matter, between the employer and the workers (vide Cairo Court of Appeal in the appeal on dispute No. 50 of 1959 — in El-Hawwari, p. 103); and failing such agreement, the circumstances of every case should be examined, while keeping in mind that those in contact with customers, depend in earning the tips, not only on their skill, but also on the cooperation of the other workers.
Vide Cairo Court of Appeal in appeal No. 329 of 1960, (in El-Hawwari, p. 102); vide also Habeeb, p. 106; and Naguib and Bakr, p. 17.
Vide Murad, p. 308; Badawi, K.M., p. 175; and El-Areef, p. 280, all of whom adopt the same view, without reasoning; and Butros and Rajab, p. 19, who likewise adopt the same view, because the said agreement “is no more than an agreement to determine the amount of wages.” On the other hand, Zaki, p. 105, submits (and Habeeb, pp. 103–5, agrees with him), that the said agreement is illegal, because it violates the provisions of section 6 of the U.A.R. Labour Code (quoted in Section V of Chapter II, supra). It is submitted that the only case, where Zaki’s submission would not be wrong, is when the said agreement is made after the assessment of the tips, and the agreement in effect substitutes a fixed wage less than the said assessed tips.
For the said tortious liability, vide Section I, C, iii, of Chapter III, supra. Zaki, p. 105; and Habeeb, pp. 103–5, give the same answer, but they depend on the said section 6, as aforementioned; El-Areef, p. 281, gives the same answer impliedly, because the “legislator did not interfere,” so as to prohibit such agreement, as did the French legislator in section 42 of Book I of the French Labour Code. However, Butros and Rajab, p. 20, submit to the contrary, and they quote the Cairo Court of Arbitration in dispute No. 291 of 1954, in support. It is submitted that they and the said decision are wrong.
Reference to the English Common Law, assists in reaching the same conclusion: vide Manubesn v. Leon (1919), 1 K.B. 208, as an authority for such said implication, in the hair-dressing business; vide also Barwell and Kar, p. 239.
El-Areef, p. 260; and Zaki, p. 92, both hold the same view; Murad, p. 419, agrees with the proviso that the overtime payments should be regular. However, Rashed and Hashem, pp. 172–3, maintain otherwise, because these payments “do not constitute an element in the contract... and the worker’s dependence thereon is not guaranteed, for (overtime work) depends on the will of the employer.” It is submitted that they are wrong, because the constituion by the said payments, of an element in the contract, depends on whether they are wages or not, and because the said guarantee for the worker is irrelevant, not only in as far as these payments are concerned, but also in respect of the ordinary wages.
There is no obligation on the employer to provide a wage-cadre, for the classification and promotion of his workers: vide the two cases quoted in footnote 114 to Chapter III, supra; and vide El-Mansourah Court of Appeal in the appeal on dispute No. 17 of 1954 (in El-Fakahani, Book I, Vol. I, p. 521); Cairo Court of Arbitration in dispute No. 63 of 1953, (Ibid., p. 528); and the same Court in dispute No. 139 of 1953 (El-Areef, p. 284); Alexandria Court of Arbitration in dispute No. 12 of 1956 (in Habeeb, p. 121); and Cairo Court of Appeal in the appeals on disputes Nos. 99 of 1957 and 23 of 1959 (both in El-Hawwari, p.91);vide also El-Areef, p.283; Murad, pp. 308–9; and Naguib and Bakr, p. 12.
Vide Alexandria Court of Arbitration in dispute No. 57 of 1953 (in Habeeb, p. 120); Cairo Court of Arbitration in dispute No. 54 of 1953 (in El-Fakahani, Book I, Vol. I, p. 522); Cairo Court of Cassation in cases Nos. 631 of 1955, and 479 of 1956 (Ibid., pp. 524 and 526, respectively); vide also Zaki, p. 96; and Habeeb, p. 119.
Vide Cairo Court of Appeal in the appeal on dispute No. 14 of 1960; and the Alexandria Court of Appeal in appeal No. 322 of 1959 (both in El-Hawwari, p. 105); and vide El-Areef, pp. 260 and 261; Murad, p. 296; El-Fakahani, 1959 Supplement, p. 54; Butros and Rajab, p. 441; Zaki, p. 92; Habeeb, pp. 38–9 and 56–8; and Faheem, pp. 42 and 63; vide also the two French decisions of the Cour de Cass., Ch. Civ., Ch. des Requêtes (1930), Gaz. du Palais, 1930, 2, 61, (both in I.S.D.L., Vol. 7, 1933, p. 137, and Vol. 6, 1931, p. 89, respectively).
Vide Cairo Court of Appeal in appeal No. 61 of 1955 (in Habeeb, p. 536); Cairo Court of Cassation in case No. 734 of 1958, (in El-Hawwari, p. 353); and the same Court in case No. 1878 of 1958, (Ibid., p. 99); Cairo Labour Court in case No. 6242 of 1959, (Ibid., p. 351); Cairo Court of Appeal in appeals Nos. 223 and 283 of 1960, (Ibid., pp. 350 and 352, respectively); vide also El-Areef, p. 409; Badawi, K.M., p. 339 (though impliedly); Sabbour, p. 512; Badawi, Z., Vol. I, p. 89; and Habeeb, p. 40. However, Rashed and Hashem, p. 293, maintain that the gratuity is a wage, “whose payment is postponed” to the time of the termination of the contract; vide Murad, p. 248; and Zaki, p. 313, who are of the same opinion. It is submitted that they and those who hold their view, are wrong, mainly because the termination gratuity can be denied in certain circumstances, by virtue of section 76 of the U.A.R. Labour Code (vide Chapter VI, infra), whereas wages cannot be denied: vide, in this respect, the Cairo Labour Court decision (supra).
Vide Chapter VII, infra, for the termination gratuity and for section 82 of the Labour Code, which by providing for special rules for the distribution of the gratuity contrary to the ordinary (Moslem Shari’a) rules of succession (applicable to the distribution of wages), is yet another proof that the termination gratuity is not wages.
Vide Yousif Abdel Razig v. Heirs of John Pothitos (1960), AC-Revision-394–1960, (in the S.L. J.R., 1960, p. 274). This decision held that a claim for the termination gratuity was a claim for wages, so the action thereon was statute-barred after one year, by virtue of the Prescription and Limitation Ordinance of 1928 (The Sudan Laws, Vol. 10, Title XXVI, Sub-Title 4), on the ground that the gratuity was not excluded from the definition of wages, in section 2 of the Sudan Ordinance. The decision also depended on Halsbury, Vol. 22, paragraph 226, to the effect that “the opportunity of earning a gratuity at the end of the period of service may be good as part of the consideration of the contract” — vide also in this respect, Smith, p. 135, where he quotes Lake v. Campbell, 5 L.T. (N.S.) 582, as authority to the effect, that “no action will lie for a gratuity promised at the end of the year, unless it were promised as part of the wages.” On these authorities, it is submitted that the Sudan decision is wrong, and in any case should be limited to the barring of actions on the gratuity. In the U.A.R. section 698 of the Civil Code better provides that “actions arising from the contract of employment shall be barred by limitation at the end of one year after the termination of the contract,” without saying that the termination gratuity is a wage. Section 52 of the U.A.R. Labour Code, re attachment of wages, (vide Section III of this Chapter, infra), applies its provisions to the termination gratuity, only by special mention. It is clear that the legislator would not have done so, if he intended the gratuity to be a wage.
This is mainly because of the employer’s right to deny the gratuity to the worker, by virtue of section 10(2) of the Sudan Ordinance (vide Section II, A, of Chapter VI, infra), whereas wages cannot be denied (vide, Batt p. 199).
Habeeb, pp. 49–50, maintains that the payment in lieu of the leave, is not a wage; and he quotes in support, Alexandria Court of Appeal in appeal No. 369 of 1955; and Cairo Court of Appeal in appeal No. 1244 of 1955. El-Areef, p.260, takes the opposite view, “because wages have a general nature, so that they may be spread not only over the working days, but also over the rest-days which are by virtue of the contract or the provisions of the law considered as (contracted) days.” Badawi, K.M., p. 205–6; and El-Fakahani, Book I, Vol. II, p. 191, also take the said opposite view, and so they, in pp. 208 and 193, respectively, advocate the right of the heirs of a deceased worker, in his annual leave payment, after this death — vide, however, Cairo Labour Court, in the two dissenting decisions No. 5755 of 1959 (in El-Hawwari, p. 125), and No. 5597 of 1954 (in El-Fakahani, Book I, Vol. II, pp. 215–6).
Vide footnote 38 to Chapter I and the relevant text, supra. Vide section 60 of the Labour Code (in Section I of Chapter V. infra), which entitles the employer to stop or otherwise recover the worker’s wages, if the latter works for another during his annual leave. Vide also section 61 of the Code, which reserves for the worker his right in the final leave, irrespective of the manner of termination of the contract, contrary to the entitlement to the termination gratuity. These two sections are indications that the payment for the annual leave, is a wage. Vide Rashed and Hashem, pp. 72–3; and Badawi, K.M., p. 206.
Vide footnote 46, supra.
As long as the contract is not suspended or terminated, because of the sickness, “the right to wages... will continue until express termination”: Cooper, pp. 97–8. Vide also Barwell and Kar, pp. 252–3. Further support for the submission, may be drawn from section 14(2) of the Sudan Ordinance (as amended in 1963), which provides that, “when wages are payable at a daily, weekly, fortnightly or monthly rate the employed person shall, in the absence of any agreement to the contrary, be deemed to have contracted to work for his employer for six days out of every seven during the period of his angegement and shall be entitled to receive full wages.” This provision, which considers the payment for the weekly rest-day to be wages, is by analogy, applicable to the leaves under discussion, which are also statutory rest — periods. Vide also section 20 of the Sudan Ordinance, in Section III of this Chapter, infra.
This is also emphasised by the provisions of section 695 of the Civil Code (vide this section and the said section 72, in Section II, A,2, of Chapter VI, infra); vide also Cairo Court of Appeal in appeal No. 61 of 1955 (in Habeeb, p. 536); and vide El-Areef, p. 343; Badawi, K.M., p. 285; and Habeeb, p. 40; vide also the French decision in Keller-Dorian v. Chrétien (1937), Gaz. du Palais, 1937, I, p. 408 (in I.S.D.L., Vol. 13, 1939, p. 99).
Vide the Sudan decision, in footnote 47, supra. The barring by limitation, by virtue of section 698 of the U.A.R. Civil Code (mentioned in the said footnote), also applies to the payment in lieu of the notice.
Diamond, p. 112, who quotes Konski v. Peet (1915) 1 Ch. 530, as an authority.
Vide Section I, H, of Chapter III, supra; vide also El-Areef, p. 282.
For the U.A.R., vide section 75 of the Labour Code, and Cairo Court of Cassation in case No. 931 of 1959 (in El-Hawwari, p. 425); vide also El-Areef, pp. 357 and 405; Murad, p. 428 (vide, however, p. 445); Habeeb, pp. 40, 534 and 635; Faheem, p. 31; and Rashed and Hashem, p. 228. For the Sudan, vide Smith, pp. 121–122: “In this action... the servant seeks compensation, not for services he has rendered previous to his discharge, but for the injury he has sustained by such discharge in not being allowed to serve and earn the wages agreed upon.’
Vide section 147 of the U.A.R. Civil Code, which provides that the contract is the ‘law’ of the two parties, without whose consent the contract cannot be altered. The agreement on wages may be contained, either in the individual or collective contract of employment, or in the work rules of the establishment. Vide Cairo Court of Arbitration in dispute No. 181 of 1954, (in Habeeb, p. 130); vide also Zaki, p. 87; Habeeb, pp. 130–1; Butros and Rajab, pp. 100 and 102; Sabbour, p. 171; and vide Section V of Chapter II, supra.
Vide footnote 141 to Chapter III, supra, and the relevant text.
Vide footnote 114 to Chapter III, supra, and the relevant text; vide also footnote 41, supra.
Section 682 of the U.A.R. Civil Code provides that, “if the individual or collective contract or the work rules do not specify the wages payable by the employer, wages shall be determined on the basis of the estimated wages for the same kind of work if any, otherwise they should be determined in accordance with the custom of the trade and the locality, and in default the Judge shall fix them according to equity.” Vide Cairo Labour Court in case No. 472 of 1960, (in El-Hawwari, p. 84), which decided that “the non-fixing of the wages in the contract, does not (necessarily) preclude the employment relationship, and the fixing of wages in such a case, will be in accordance with the custom of the trade, or with the Judge’s decision on the grounds of equity.”
Vide section 681 of the U.A.R. Civil Code, quoted in Section I of Chapter I, supra; vide also Habeeb, p. 139.
Section 129 of the U.A.R. Civil Code empowers the Judge to reduce the obligations of either party to the contract, or even to hold the contract void, if the other party’s obligations are far less, and the said other party has taken advantage of the rashness of the first mentioned party. Section 147 of the Code empowers the Judge to reduce the remuneration, if general unforeseen circumstances cause the debtor (here the employer) to incur a great loss, in carrying out his obligations. Section 566 of the Majallah authorizes the reduction of remuneration, if it is very much exaggerated.
Vide foornote 34, supra, for Order No. 358, and its legislative development. This Order also prescribed minimum wages, for workers in the commercial and industrial establishments; and this was the first statutory prescription of minimum wages in the U.A.R. Its successor, Order No. 99 of 1950, was kept alive, by section 4 of the Presidential Order issuing the Labour Code, “until the decisions of the committees set up under section 156 of this Code become effective”; vide sections 156–159 of the Code, for the provisions on these wage-fixing committees, which are also the first provisions of their kind in the U.A.R. For agricultural employees, Order No. 468 of 1944 (Al-Jaridat-ul-Rasmiyyatu No. 23 of 28 February 1944), was the first enactment, to prescribe minimum wages. This was superseded by Law No. 178 of 1952, which was amended by Law No. 241 of 1953 (Ibid., No.40 bis of 14 May 1953). The above- mentioned newprovisions of the Labour Code are also applicable to agricultural workers. Presumably, Law 178 of 1952 should still be effective, however, until the decisions of the Labour Code Committees also become effective, though the said section 4 of the Presidential Order issuing the Labour Code, should have said so, as it did in respect of Order 99 of 1950. Vide and cf. the minimum wage statutory provisions, in sections 35–40 and 106(2) of the Iraqi Labour Code, and sections 44–6, 24, 24, and 132, of the Lebanese, Jordanian, Libyan and Tunisian Labour Codes, respectively; vide the Labour Survey of North Africa, pp. 188 and 189, for similar provisions in Algeria and Morocco, respectively. Section 28 of the Qatari Labour Code, expressly leaves the matter to the Emir. Neither the Kuwaiti Labour Code nor the Saudi Regulations contain any relevant provisions. In Saudi Arabia, however, the writer knows that the Government used to consult with the Arabian American Oil Co., the biggest single employer in the country, so as to fix the minimum wages of the Company’s workers.
Vide footnote 93 to Chapter II, supra, and the relevant text; vide also Cairo Court of Appeal in the appeal on dispute No. 22 of 1958 (in El-Hawwari, p. 86); Asyout Court of Arbitration in dispute No. 8 of 1954; and Cairo Court of Arbitration in dispute No. 286 of 1954 (both in Habeeb, p. 132).
Section 228 of the U.A.R. Labour Code.
Vide the section quoted in footnote 82 to Chapter II, supra.
Vide footnote 23, supra.
Vide section 121 of the U.A.R. Labour Code.
Vide Section V of Chapter II, supra; vide also Samuels, p.35: “The questions how much salary or wages an employer is to pay his employee, and how the salary is to be paid are, in general, matters to be settled by agreement between the parties.”
Vide the section, quoted in footnote 4 to Chapter II, supra.
Vide O. Kahn-Freund, in Flanders and Clegg, p. 48; vide also Diamond, pp. 81 and 82; Barwell and Kar, pp. 116–7; and Clark, pp. 3 and 47. Note should, however, be taken of the difference between the U.A.R. and the Sudan, concerning the effect of a collective contract and a collective agreement, in these two countries, respectively. The effect of the former on the individual contract of employment is automatic, whereas the effect of the latter is only by the express or implied consent of the parties.
Vide Cheshire and Fifoot, p. 69: “The Courts... will not seek to measure the comparative value of the defendant’s promise and of the act or promise given by the plaintiff in exchange for it, nor will they denounce an agreement merely because it seems to be unfair... The parties are presumed to be capable of appreciating their own interests and of reaching their own equilibrium.” Barwell and Kar, p. 254, add that “it is now well settled in England that Courts of Law will not inquire as to the adequacy of an employed person’s remuneration, unless the disparity between remuneration and labour be so great as to fall within the doctrine whereby complete want of mutuality vitiates the contract.” It is submitted that this last-mentioned statement of the law is somehow misleading, because if there is a complete want of mutuality, the proper enquiry of the Courts will be into the validity of the contract itself, and not into the adequacy of the consideration completely wanting on the side of the employer. On the other hand, the insanity and not the rashness of the party in question, is what renders the contract void (vide Cheshire and Fifoot, p. 354).
Vide the Wages Tribunals Ordinance of 15 February 1952 (in the Laws of the Sudan, Vol. 8, Title XXII, Sub-Title 7), and the two Orders issued thereunder, on 15 August 1958, one for shop-assistants, and the other for the Arabic clerical workers in commercial houses (Idem). Vide and cf. section 89 of the Bahraini Labour Code, and sections 5, 9, 10 and 11 of Ordinance No. 33 of 1945, in Aden.
Section 11 of the Wages Tribunals Ordinance, supra; and vide Section V of Chapter II, supra; and especially section 35 of the Sudan Ordinance, quoted therein; vide also Samuels, p. 38: “Rates fixed by a Wage Regulation Order are the statutory minimum that may be paid. Terms of service contracts providing for the payment of less rates take effect as if they were replaced by the statutory minimum rates.”
Vide the section, quoted in footnote 71 to Chapter II, supra.
Vide section 13 of the Sudan Ordinance.
“Measures relating to the protection of wages comprise the legal provisions which exist to ensure the elimination of abuses in connection with the medium and manner of payment of wages and to enable the worker freely to dispose of them”: Labour Survey of North Africa, p. 190; vide also E. Herz in I.L.R., Vol. 32, 1936, p. 68. For the worker’s entitlement to remuneration, vide Section I of Chapter I, supra, and especially footnote 10 thereto.
This is deducible from the provisions of section 46 of the U.A.R. Labour Code, which deem payment to a worker to be in full discharge of the employer’s liability, even when the worker has attained the age of fourteen years only.
Section 17 of the Sudan Ordinance expressly provides that “wages shall be paid to the employed person personally or to any person authorized by him in that behalf in writing”; vide also Samuels, pp. 47–8: “There is nothing to prevent an employee asking his employer to pay his wages or part of them to someone else. He may give authority for one particular occasion or for a particular period, or as holding good until he revokes it, provided that the authority is in writing so as to be his written agreement.”
The Minister accordingly, issued his Order No. 141 of 1959, which provides that the employer “shall not be discharged of (his liability to pay) the worker’s wages, unless the worker signs on the wage-register or the wage-list or on the recepit especially prepared therefor, in the establishments which use machines for the preparation of wages.” Vide footnote 24, supra, re employer’s accounting obligations to profit-sharing workers.
Vide Section I of Chapter I, supra, re agency.
Vide footnote 35 to Chapter I, supra, and the related text; and vide Section I, B,ii, of Chapter III, supra, for the delegation by the employer, of his obligations towards the worker.
Vide similar provisions in sections 31, 29(1), 47 of the Iraqi, Qatari and Lebanese Labour Codes, respectively, and section 7 of the Saudi Regulations; vide also the Labour Survey of North Africa, p. 191, for similar provisions in Tunisia, Algeria and Morocco. The Kuwaiti, Jordanian and Libyan Labour Codes do not contain relevant provisions. Section 43 of B I of the French Labour Code also prescribes payment of wages in legal tender (vide El-Areef, p. 301).
Vide Section I of this Chapter, supra, for the remuneration in kind; vide also Zaki, p. 275; and Habeeb, p. 337. Sabbour, p. 172, submits that when wages are not agreed upon, they should always be paid in legal tender. It is submitted that he is wrong, because custom may in accordance with section 682 (in footnote 61, supra), show that the wages are payable in kind, in a certain business (vide section 3 of the Labour Code in Section I of this Chapter, supra). Vide E. Herz in I.L.R., Vol. 32, 1936, p. 74.
Vide Butros and Rajab, p. 123; and Faheem, p. 43. Vide section 29(3) of the Qatari Labour Code, which expressly permits the said payment. Payment in legal tender, other than that of the U.A.R., does not satisfy the section: Vide the Explanatory Note to Law 317 of 1952, whose section 5 is the predecessor of the said section 45 of the Labour Code. However, the Note attributes the reason of the enactment of the section, to the loss the worker incurs in changing his wages into the U.A.R. currency, if he is paid in foreign legal tender. It is submitted that the real reasons are the enablement of the worker to easily benefit from his wages, and the preclusion of the employer from paying in kind, after he agrees with the worker to pay him in money.
Vide Zaki, p. 275, where he says that “the employer cannot claim reimbursement from the worker... except under the rules of unjust enrichment.”
Vide these sections in Section II of Chapter II, supra.
Vide almost identical provisions, in section 26 of the Bahraini Labour Code; and cf. some similar provisions in section 14 of Ordinance 33 of 1945 in Aden, section 6 of the Payment of Wages Act (IV) of 1936 in India, and section 11 of the English Truck Act of 1831 (for the workmen specified in section 19 thereof, only: vide Batt, p. 129, who says that “it cannot be too often pointed out that the Truck Acts have only a limited application, in particular, that, where the employee is not a workman..., the parties may make any arrangement as to payment of wages, deductions and the like”).
The Payment of Wages Act 1960 in England (8 and 9 Eliz. II Ch. 37), permits such payment by cheque or postal or money order, with a written request from the worker. Section 8 of the Truck Act of 1831, was not as permissive, and its scope in that behalf, was more limited.
Section 4 of the English Truck Act of 1831, entitles the workman to recover any wages, paid otherwise than in the ‘coin of the realm.’ However, it is submitted that such would not be the case in Sudan, because the Sudan Ordinance in this respect, is not as mandatory as is the said Truck Act, and because section 1 of the latter, does not permit the agreement sanctioned by section 16 of the former.
Vide similar provisions in sections 33(2), 31 and 32 of the Iraqi, Kuwaiti and Qatari Labour Codes, respectively; vide the Labour Survey of North Africa, p. 191, for similar provisions in Tunisia, Algeria and Morocco. Saudi Arabia, Jordan, Lebanon and Libya do not have relevant provisions.
Vide El-Fakahani, 1959 Supplement, pp. 67–8; Zaki, p. 275; Rashed and Hashem, p. 37; and Faheem, p. 46. On the other hand, the provisions in the section, may be taken to indicate the legislator’s desire to limit the scope of remuneration in kind. The Explanatory Note to Law 317 of 1952, whose section 9 is the predecessor of section 50 of the Labour Code, states that the section was enacted, in order that the workers “may have their freedom of choice, and that they would not be overburdened,” presumably with debts; Zaki, pp. 274–5, correctly adds that the overburdening of the worker with debts, may oblige him to stay in his employer’s service, more than he wants to. Another reason for the provision in the section, lies in the protection of the worker’s health, from the injurious goods of the employer, as when they are alcoholic goods: vide El-Fakahani, 1959 Supplement, pp. 67–8; and Faheem p. 46. But this reason is not so much related to the protection of wages, as it is related to the protection of the worker’s health.
Vide El-Areef, p. 384; Badawi, K.M., pp. 95–6; Butros and Rajab, p. 123; Habeeb, p. 338; Faheem, p. 46; and Naguib and Bakr, p. 80.
Butros and Rajab, p. 124; and Faheem, p. 46, are of the same view.
This section deems any contract illegal, if it contains any stipulation, concerning the manner and place of spending the wages wide Wilson v. Cookson (1863), 13 C.B.(N.S.) 496, where it was held that it was an offence under the Act, for the employer to supply goods to the workman from his shop, and to deduct the cost thereof, from the latter’s wages; and Athersmith v. Drury (1857), 7 W.R. 14, where it was held that it was an offence under the Act, for the employer to give a note on a certain shop, even though he had no interest in the shop.
Vide Cooper, p. 112, who says that, “by placing a fictitious value upon the services rendered or the goods supplied an unscrupulous employer had a ready means of reducing his labour costs.”
Vide Batt, p. 128, who says: “If a workman, having been paid his wages, then spends them, or part of them, in his employer’s shop, there is no offence under the Acts.”
Section 18 provides that “no claims by an employer against an employed person for or on account of advances made or goods supplied by the employer during the period of the contract of service shall be enforceable in any Court after the expiration of such contract.” Section 5 of the English Truck Act 1887, precludes such claim by the employer, whether during or after the expiry of the contract.
Vide similar provisions, in section 904 of the Iraqi Civil Code.
Vide the Explanatory Note to Law 41 of 1944 (whose section 12(1) is the first predecessor of the said section 47), which states that the provision was enacted, “in order that the workers may not be deprived of their rest-day, if they were obliged to go and get their wages in any other than a working day,” and “in order that the employer may not resort to payment in a place where the workers may be tempted to spend a part of their wages unprofitably.” Sections 32, 29(3) and 47, of the Iraqi, Qatari and Lebanese Labour Codes, respectively, and section 7 of the Saudi Regulations, also prescribe the payment of wages on a working day, and at the place of work. Section 465 of the Majallah prescribes payment in the place of work.
Cf. the somewhat similar provisions, in sections 32, 29(2) and 47 of the Iraqi, Qatari and Lebanese Labour Codes, respectively, and section 7 of the Saudi Regulations; Sections 25(1) and 25(1) of the Jordanian and Libyan Labour Codes, respectively, only prescribe that wages should be paid, within seven days after which they become due. Section 476 of the Majallah leaves the periodicity of the payment of wages to the contracting parties. Vide also Article 12 of the I.L.O. Protection of Wages Convention, No. 95 of 1949, and paragraph 4 of the Protection of Wages Recommendation No. 85 of 1949. For the reason behind the enactment of these provisions, vide E. Herz, in I.L.R., Vol. 32, 1936, who says: “While it is important that definite dates should be fixed for the payment of wages, so that the worker shall not suffer from irregular payment, the protection this is intended to afford may become illusory if the dates so fixed are too far apart.” Vide Section 10 of the U.A.R. Labour Code which provides that, “unless otherwise expressly provided a year shall for the purpose of this Code consist of 365 days and a month shall consist of 30 days.”
Naguib and Bakr, p. 78, are of the same opinion.
Vide section 221 of the Labour Code; and vide Sabbour, pp. 172–3, who is of the same opinion. On the other hand, Cairo Court of Appeal in the appeal on dispute No. 67 of 1959 (in El-Hawwari, p. 88), decided that non-payment of wages in the place of the work, is no infringement of section 47 of the Labour Code, if the payment thereof is otherwise prohibited by law. The place in question was the airport, wherein the Exchange Control Regulations preclude the entry of the local currency.
Sabbour, p. 173, is of the same opinion; and so is Habeeb, p. 346.
Vide the section, quoted in Section V of Chapter II, supra.
Vide Cairo Court of Arbitration in dispute No. 231 of 1953 (in El-Fakahani, Book I, Vol. I, p. 360); vide also Sabbour, p. 173; and Habeeb, pp. 345–6.
Butros and Rajab, p. 117, explain this provision by the prevalent custom of the worker’s payment of his major living expenses, once per month. They correctly add that the monthly payment of wages to a worker engaged on daily pay, if he consents as is prescribed by section 47(c), does not make him a monthly-paid worker; or in other words, it does not entitle him to the greater statutory benefits of the latter.
Section 87(a) of the Bahraini Labour Code expressly provides that payment should be made on a working day, and so do sections 17(3) of Ordinance 33 of 1945, in Aden, and 5(4) of the Payment of Wages Act (IV) of 1936, in India. It is submitted that ‘justice, equity and good conscience,’ renders such a provision applicable in Sudan, on the ground of public policy.
Section 27(a) of the Bahraini Labour Code provides that payment should be made in a recognized pay centre, in the employment area. Neither Aden nor India has a relevant provision.
Barwell and Kar, pp. 230–1, who quote as authorities, the two Indian cases of Beg Mohammed V. Kavasji (1900) 2 Bomb.L.R. 514; and Seshagiri Row v. Nawab Askur Jung (1907) 30 Mad. 438.
The personal payment, prescribed by section 17 of the Sudan Ordinance (vide the section quoted in footnote 80 to this Chapter, supra), does not, it is submitted, preclude such payment to a bank, for such payment can also be personal payment.
Vide the section quoted in Section V of Chapter II, supra.
Vide section 690, quoted in part (C) of the present Section in this Chapter, supra.
Vide the same provisions, in sections 15(4) of the Libyan Code, and 7 of the Saudi Regulations. Cf. the somewhat similar provisions, in sections 99 and 30, of the Iraqi and Qatari Labour Codes, respectively. Section 25(1) of the Jordanian Labour Code, prescribes payment within one week after the termination of service, in either case. Vide Article 12 of the I.L.O. Protection of Wages Convention, No. 95 of 1949.
Butros and Rajab, p. 119.
Naguib and Bakr, p. 79.
Vide the two sections, quoted in Section II, A, of Chapter VI, infra. On the other hand, Butros and Rajab, p. 119, submit that the employer should not benefit from the week’s respite, if the worker serves a notice of termination of the contract, in accordance with section 72 of the Labour Code (vide Chapter VI, infra). It is submitted that they are wrong, because the section does not make any distinction, between the manners of termination. Faheem, p. 45, submits that the employer should pay the wages, even before the expiry of the week’s respite, if the usual pay-day in the establishment falls during the said week. It is submitted that he and the other authors he mentions, are wrong, because no such restriction as they try to impose, can be read in the section. The futility of the submission is clear, from the probability that the said pay-day may fall, only one or two days after the worker leaves the service.
Vide the section, quoted in part C of the present Section in this Chapter, supra.
Vide Butros and Rajab, p. 119.
Vide footnote 202 to Chapter I, supra, and the related text.
Cf. section 29 (K & R) of Book I of the French Labour Code (vide I.L.R., Vol. 79, 1959, pp. 639–40); and the Belgian Act of 7 August 1922 (vide I.L.R., Vol. 32, 1936, p. 226).
This customary period should not, by virtue of the limitation provision in section 698 of the Civil Code, exceed one year from the termination of the contract.
Vide footnote 30, supra, and the related text.
Vide almost identical provisions, in section 17(2) of Ordinance 33 of 1945, in Aden; and cf. similar provisions, in section 27(b & c) of the Bahraini Labour Code, and section 5(2) of the Payment of Wages Act (IV) of 1936, in India.
Vide Sellers v. London Counties Newspapers (1951) I A.E.R., 544, where the plaintiff-appellant, who was employed as a canvasser for advertisements in the defendant’s newspapers, was remunerated partly by commission, which was not payable until after the advertisements obtained by him had actually appeared in the newspapers. It was held that he was entitled to the commission, even though the advertisements had not so appeared, until after he left the service of the defendants.
This is also subject to the one year limitation prescribed by the Prescription and Limitation Ordinance of 1928 (in The Laws of the Sudan, Vol. 10, Title XXVI, Sub-Title 4)
Vide identical provisions, in section 28 of the Bahraini Labour Code. In Aden, section 18 of Ordinance 33 of 1945, authorizes the employer to make certain deductions, without authorization in the contract. Section 7 of the Payment of Wages Act (IV) of 1936, in India, forbids any deduction from wages, except the deductions authorized by the Act.
Vide the section quoted in Section I,E, of Chapter III, supra, and footnote 130 thereto; vide also section 70 of the Labour Code, quoted in the said Section.
This submission is based on section 1 of the English Truck Act of 1896. Section 19(l,d) of Ordinance 33 of 1945, in Aden, expressly provides to the same effect.
Vide the section, partly quoted in Section I,C,iii of Chapter III, supra
The same submission, re one sixth of the worker’s wages, for the purposes of section 66, supra, should likewise be applicable for the purposes of section 54; vide Badawi, K.M., p. 181; Butros and Rajab, p. 128; Habeeb, p. 343; Naguib and Bakr, p. 86; and Sabbour, p. 184. Vide also footnote 142 to Chapter III, supra, and the related text, for the express prohibition of deducting by virtue of section 54, when any disciplinary penalty is imposed.
Vide section 361 of the U.A.R. Penal Law; vide also Badawi, K.M., p. 179; Habeeb, p. 342; and Naguib and Bakr, p. 86.
Sabbour, p. 184, is of the same opinion.
Vide the section quoted in Section V of Chapter II, supra.
Vide Badawi, K.M., p. 181; Habeeb, p. 342; and Naguib and Bakr, p. 86, who are of the same opinion.
Vide footnotes 81 and 82 to Chapter III, supra, and the related text, for the worker’s tortious liability, similar to that in the U.A.R., under section 54 of the Labour Code.
Vide section 17 of the Sudan Ordinance, quoted in the present Section of this Chapter, supra.
This submission is based on section 2 of the English Truck Act of 1896.
This provision was taken from section 51 of Book I of the French Labour Code (vide Zaki, p. 278). Vide similar provisions, in sections 32 and 25(2, b) of the Kuwaiti and Libyan Labour Codes, respectively, and in Order No. 21 of 1959, which was issued by virtue of section 129(10) of the Iraqi Labour Code. Section 33(c) of the Qatari Labour Code prohibits interest on loans, but allows deduction up to thirty five per cent of the wages. Section 9 of the Saudi Regulations limits deduction to ten per cent, but does not mention anything about interest, presumably because the Moslem Shari’a Law applied in Saudi Arabia, prohibits interest. Section 25 (3, a) of the Jordanian Labour Code authorises the deduction of loans, without limitation. Section 144(3) of the Tunisian Labour Code limits the deduction for loans, only to the loans for the purchase by the worker of tools and equipment. Section 145 thereof limits the deduction to ten per cent of the wages, but there is no prohibition of the charging of interest. Vide Article 17(2) of the I.L.O. Social Policy (Non-Metropolitan Territories) Convention No. 82 of 1947.
Butros and Rajab, pp. 125–6; Habeeb, p. 341; Faheem, p. 46; and Naguib and Bakr, p. 80, are of the same opinion.
Zaki, pp. 278–9; and Habeeb, p. 341.
Cf. section 24 of the English Truck Act of 1831, which permits loans for certain limited purposes.
Vide section 18 of the Sudan Ordinance, quoted in footnote 99, supra, re the non-enforcibility in Court, of any claim on advances, after the expiration of the contract. Vide provisions similar to those in section 19 of the Sudan Ordinance, in section 29 of the Bahraini Labour Code (which, however, expressly authorizes the charging of interest on loans from the monetary scheme mentioned in section 21 thereof); and cf. the provisions in section 18(f & i) of Ordinance 33 of 1945, in Aden, and section 7 of the Payment of Wages Act (IV) of 1936, in India.
Vide the section quoted in the present Section of this Chapter, supra.
It is interesting to note from the provisions of section 27 of the Sudan Ordinance (quoted in Section II of Chapter VII, infra), re approved Provident Funds or similar schemes, that the employer cannot deduct the worker’s subscription to such scheme, unless the worker has accepted entry into the scheme, which does not seem to be absolutely obligatory.
Vide section 172, which authorizes the employer to deduct the worker’s subscription to a trade union, at the written request of the trade union, without further authorization from the worker. Vide section 108, which prohibits any deduction for the worker’s protection from the dangers at work.
Vide section 56 of Law No. 92 of 1959, re Social Security, which authorizes the deduction of five per cent of the worker’s wages, as a subscription for pension; and vide sections 61 and 63 of Law No. 14 of 1939, re Income Tax, which authorize the deduction of the worker’s tax.
Sections 30 of the Bahraini Labour Code, and 18(2,b) of Ordinance 33 of 1945, in Aden, provide to the same effect; and so does section 25(2,d) of the Libyan Labour Code.
One Egyptian pound is supposed to be equal to ten Syrian pounds, and each of these pounds is divided into a hundred piastres. One Egyptian pound is supposed to be equal to one sterling pound or ten Dutch guilders.
That is Chapter II of Book II of the Labour Code, on the Individual Contract of Employment. The sum referred to in section 72, is the payment in lieu of the notice of termination of the contract of employment, by either party (vide Chapter VI, Section II, A,2, infra); and the sums referred to in the other mentioned sections, are all one, viz. the termination gratuity, payable on the termination of the contract (vide Chapter VII, infra).
Vide the Explanatory Note to Law 317 of 1952, whose section 11 is the predecessor of section 52 of the Labour Code, which says that the section was enacted, in order that “the means of living will be secured (for the worker), and the work will not be disturbed.” Vide and cf. the provisions, in sections 33, 33(b), 25(4), 25(2,c) and 146 & 147, of the Kuwaiti, Qatari, Jordanian Libyan and Tunisian Labour Code, respectively; vide also sections 61 and 62 of Book I of the French Labour Code (vide I.S.D.L., Vol. 1, 1925, p. 114).
Habeeb, p. 339; Faheem, p. 49; and Naguib and Bakr, p. 81, are of the same opinion, though without reasoning; Butros and Rajab, p. 131, maintain the contrary opinion, also without reasoning.
Section 15 of Law 41 of 1944, the first predecessor of section 52 of the Labour Code, contained such qualification. Section 11 of Law 317 of 1952, its second predecessor, dropped the qualification. Butros and Rajab, p. 132, still advocate the qualification, and il-logically submit that the legislator did not mean to forego the protection behind the qualification, even though he dropped it.
This means the exclusion of the Loan deductions, and the Compensatory and Disciplinary deductions, respectively, discussed in (iii) and (i) of Section III, E, of this Chapter, and the exclusion of the other deductions mentioned in (iv), therein.
Nor is there any in Bahrain or Aden.
The Laws of the Sudan, Vol. 10, Title XXVI, Sub-Title 1, Cf. this Sudanese provision, with section 1 of the English Wages Attachment Abolition Act of 1870 (35 and 34 Vict. 30), which provides that, “after the passing of this Act, no order for the attachment of the wages of any servant, labourer or workman shall be made by the judge of any Court of Record or inferior Court.”
Vide for instance, section 10 of the English Employers and Workmen Act of 1875 (38 & 39 Vict. c. 90), which starts the definition of a workman, with the words: “any person who, being a labourer, ... engaged in manual Labour.” The express exclusion of a domestic servant from this definition, explains the express inclusion of domestic servants, in the said section 201(1,f) of the Sudan Ordinance, for the word labourer did not satisfy the Sudanese legislator’s intention of bestowing protection also on the domestic servants. Thus the legal connotation of the word labourer in Sudan, should be the same as that of the word workman in England, defined as aforementioned.
Vide the section quoted in Section III of Chapter I, supra; vide therein also, the mention that the definitions in Sudan and in the U.A.R., do not make a distinction between a workman and an employee.
Vide Russel v. Austin Fryers (1909), 25 T.L.R., 414; and Re Mirams (1891) I Q.B. 594.
Vide Penman v. Fife Coal Co. (1936) A.C. 45; vide also Batt, p. 130; and Samuels, p. 48.
Vide King v. Michael Faraday and Partners, Ltd. (1939) 2 K.B. 753.
Vide and cf. the similar provisions, in sections 34(1), 7 and 48, of the Iraqi, Qatari and Lebanese Labour Codes, respectively.
Contrary to section 8 of the Labour Code, this section gives priority only to wages, and does not mention any other sums to which the worker may be entitled, like the payment in lieu of the notice of termination of the contract, and the termination gratuity.
El-Areef, p. 304, is of the same opinion.
Cf. this with the provisions in section 82 of the Labour Code, re distribution of the termination gratuity, which is not a wage (vide Section III of Chapter VII, infra).
The Laws of the Sudan, Vol 4, Title XII, Sub-Title 5.
One Sudanese pound is equal to about one pound sterling or ten Dutch guilders.
As such exclusion is not juridically justifiable, the writer, while serving as a Legal Counsel to the Sudan Government, recommended in 1960, the amendment of the said section 33, so as to expressly provide for the distribution of wages, in accordance with the Shari’a Law. Vide Section III of Chapter VII, infra, for what is stated about the distribution of the termination gratuity. Vide section 36 of the Bahraini Labour Code, which expressly prescribes that the distribution of the wages and all other payments due to the worker, presumably including the termination gratuity, should be in accordance with the Shari’a Law. Vide also Article 11(2) of the Contracts of Employment (Indigenous workers) Convention, No. 64, of 1939.
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Hashem, H.R. (1964). Wages. In: Arab Contract of Employment. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-6306-6_5
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DOI: https://doi.org/10.1007/978-94-017-6306-6_5
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