Protect Your Career: The Impact of Force Majeure on the Employment Contract Under Labour Law No. 37 of 2015

The Impact of Force Majeure on the Employment Contract Under Labour Law No. 37 of 2015

First Requirement: The Legal Basis for Entitlement to Wages and the Impact of Force Majeure Thereon

Article (40) of Labour Law No. (37) of 2015 provides that if the worker attends the workplace and is ready to perform their work, but is prevented from doing so by reasons beyond their control, the worker shall be deemed to have performed the work and shall be entitled to wages accordingly.

This provision is based on a legal presumption to the effect that the worker’s attendance at the workplace and readiness to perform their duties is regarded, by legal assumption, as equivalent to the actual performance of the work. Accordingly, the worker is entitled to their full wages so long as reasons beyond their control, such as breakdowns, strikes, and similar circumstances, prevent them from carrying out their work. These reasons may be attributable to the employer, or may arise from an external cause, such as a state of war.

This presumption is established once the worker presents themselves for work, regardless of the nature of the worker’s obligation, whether the work consists of daytime or nighttime hours, on a full-time or part-time basis, and regardless of whether the worker is a juvenile or an adult, or whether they are a national or a foreign worker.

This reflects confirmation by the Iraqi legislator of its protection for the weaker party in the contractual relationship, since reasons beyond the worker’s will may prevent them from carrying out the work as required under the contract. In such a case, the worker remains entitled to their full wages so long as they have attended the workplace and were ready to perform their duties.

Examples of causes attributable to the employer in the form of intentional fault include the employer deliberately refraining from assigning any work to the worker out of malice, or closing the enterprise in order to pressure workers in the context of a dispute between them.
Examples of causes attributable to unintentional fault on the part of the employer include the employer’s negligence in maintaining machinery, resulting in its damage and cessation of operation, or the employer’s violation of the mandatory provisions of the Labour Law, which leads to the issuance of a decision or judgment ordering the closure of the enterprise for a period of time as a penalty for such violation.

The phrase “reasons beyond the worker’s control” means any reason, whether related to the employer or to another party, and regardless of its type or nature, provided that it does not arise from the worker’s will or fault.

This includes situations of war, as war, such as the outbreak of a large-scale armed conflict like a war between Iran and the United States, constitutes an external cause in which the worker has no involvement. It may rise to the level of force majeure if it results in an actual disruption to the course of work, the imposition of a curfew, the closure of roads, the suspension of working hours by official decisions, or a serious threat to safety that renders the operation of the enterprise or access to it impossible.

In such a case, if the worker attends the workplace and is ready to perform their work, but is then prevented from doing so by the conditions of war and its direct consequences, the ruling of Article (40) of the Labour Law remains applicable. The worker shall be deemed to have performed the work by legal presumption and shall be entitled to their full wages, because the non-performance did not arise from the worker’s will or fault, but rather from an external cause beyond their control.

In the event that the enterprise ceases operations, whether wholly or partially, the provisions of Article (72) of Labour Law No. 37 of 2015 shall apply.

Second Requirement: The Conditions for a Worker’s Entitlement to Wages When Performance Becomes Impossible

The conditions for the application of Article (40) of the Labour Law are represented in several matters.

The first condition is that the reasons preventing the worker from performing their work must be beyond their control, meaning that they must not be attributable to any cause related to the worker. Otherwise, the worker shall not be entitled to the agreed wages.
The second condition is that the worker must attend the workplace. If the worker is unable to attend the workplace, they shall not be entitled to wages, even if their fellow workers who were present did not perform their work due to external reasons.
The third condition requires that the worker must be ready to perform their work upon attending the workplace. If the worker attends the workplace but is not ready to perform their work for any other reason, they shall not be entitled to the agreed wages.

Third Requirement: The Legal Nature of What the Worker Receives During the Period of Suspension

What the employer pays to the worker pursuant to the text of Article (40) of the Labour Law is regarded as wages, even though the worker does not actually perform work during the period of suspension, so long as the suspension arises from a cause beyond the worker’s control.

Accordingly, the provisions applicable to wages under Labour Law No. 37 of 2015 shall also apply to such payment. This is because the law provides that if the worker attends the workplace and is ready to perform their work, but is prevented from doing so by reasons beyond their control, the worker shall be deemed to have performed the work and shall be entitled to wages accordingly.

This ruling is consistent with the general philosophy of the Labour Law, which aims to protect the worker as the weaker party in the contractual relationship and to ensure the continuity of their means of livelihood, which is represented by wages.

Chapter Three

The Impact of Force Majeure on Working Hours and Overtime Work

First Requirement: Overtime Work and the Amount of Its Compensation

Overtime work, under the provisions of Labour Law No. 37 of 2015, means any work performed during daily or weekly rest periods, or during hours exceeding the daily working hours, or on officially prescribed public holidays and official leave days.

Since overtime work constitutes an exception to the general rule concerning the maximum working hours, the legislator has therefore prescribed wages for overtime work that shall not be less than double the wage if the work is performed at night, or if the work is hazardous, exhausting, or harmful. The increase shall be fifty percent of the ordinary wage if the work is performed during the daytime.

Paragraph (4) of Article (71) obliges the Ministry of Labour and Social Affairs, when granting exceptions, to specify the maximum limit of overtime hours in each case, as well as the amount of overtime compensation, which must include:

An increase of fifty percent of the ordinary wage if the work is performed during the daytime.
An amount of not less than double the wage if the work is performed at night.
An amount of not less than double the wage if the work is hazardous, exhausting, or harmful.
Compensation of the worker with one day of rest during the week if the worker has worked on their weekly rest day.

The overtime hours performed by the worker, like the ordinary working hours that they perform on a regular basis, are subject to the same rules and provisions governing working hours, particularly since what the worker receives in return for performing overtime hours is considered wages and is subject to the legal provisions governing wages.

Therefore, the employer must include the overtime hours performed by the worker in the records designated for that purpose, as the legislator has required the employer to keep a register of wages and overtime hours in which shall be entered:

Details of the worker’s wages.
Deductions made therefrom.
The net wages due to the worker.

This register must be free from any blank spaces, erasures, or insertions, and it shall be subject to the supervision and audit of the labour inspectors in the Ministry.

Second Requirement: Cases of Departure from the Maximum Limit of Working Hours

The principle established in Article (67) of Labour Law No. 37 of 2015 provides that daily working hours shall not exceed eight hours per day or forty-eight hours per week, taking into account the exceptions provided for in this Law, provided that:

The duration of the worker’s stay at the workplace shall not exceed ten hours.
The worker’s actual working hours shall not exceed eight hours per day in work performed in two shifts and in intermittent work.

Article (71), under its first paragraph, permits working hours to exceed what is prescribed in Article (67) in two cases.

The First Case

This is the case of the occurrence of an accident, the likelihood of its occurrence, the necessity of carrying out urgent repairs to machinery or equipment, or in a case of force majeure, such as a state of war, provided that the increase is limited to the extent necessary to avoid the interruption of the ordinary operation of the enterprise.

The Second Case

This is where the conditions of work require that it be carried out continuously in successive shifts, on condition that:

The total weekly working hours do not exceed fifty-six hours.
This does not affect the worker’s right to be granted a rest day as compensation for their weekly rest.

The purpose of restricting the employer to the two aforementioned cases is to prevent the employer from resorting to overtime work without an appropriate justification requiring it, because this may lead to a reduction in opportunities for workers to enjoy rest, which is something the law seeks to avoid.

Accordingly, the first paragraph establishes a general rule allowing the employer to free themselves from the restrictions relating to daily and weekly working time whenever there are unusual work necessities or exceptional circumstances.

If the exception exists, the employer may then refrain from complying with:

The maximum daily working hours.
The maximum duration of the worker’s presence at the workplace.
The commencement of the worker’s weekly rest period.

There is no doubt that this permissibility means that an employer who uses the authorization provided for in the two aforementioned cases does not violate any provision of the law and therefore is not subject to punishment.

The employer is required to grant the worker additional wages for hours worked in excess of the maximum limit. This wage shall be assessed on the basis of the original wage to which the worker was entitled for the additional period, plus:

An increase of fifty percent of the ordinary wage if the work is performed during the daytime.
An amount of not less than double the wage if the work is performed at night.
An amount of not less than double the wage if the work is hazardous, exhausting, or harmful.
In addition, the worker shall be compensated with one rest day during the week if they worked on their weekly rest day.

In the Matter of Evidence

If the worker claims that the employer paid them wages for their overtime hours that were less than the wage agreed upon in the enterprise, then the burden of proving that the employer paid such wage to the worker lies with the employer.

As for proving that the worker actually performed overtime hours, the burden of proof lies with the worker, and the worker must take all necessary measures to confirm that they performed overtime work.

The Federal Court of Cassation, in Decision No. 651/Civil /2017, affirmed the judgment dismissing the worker’s claim for overtime wages, as it was established before the Court that the claimant worker was working from 8:00 a.m. until 3:00 p.m, and that they had no overtime hours beyond the official working hours.

The Labour Court was required to verify whether the defendant company had special records documenting overtime work and official holiday work for its employees who worked outside official working hours. In the event that such records existed, they should have been examined by one or more specialized experts in order to determine:

Whether the claimant was working outside official working hours or not.
Whether their overtime wages, if any, had already been paid as part of their salary.
Or whether such wages were still owed by the company.

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