What are the main aspects of the Moroccan Labour Code that foreign companies, particularly Swiss companies, need to know when drafting employment contracts in order to ensure legal compliance and avoid potential disputes?
First of all, it should be noted that the Moroccan Labour Code does not lay down any particular substantive conditions for the validity of an employment contract.
Consequently, the employer has a certain freedom when drafting the employment contract, provided that it does not conflict with the public policy rules laid down by the Moroccan Labour Code and Moroccan case law (e.g. probationary period, working hours, terms for terminating the employment contract, etc.).
To ensure that the employment relationship is properly organised, it is recommended to provide in particular for the following main contractual clauses:
- probationary period (ensure compliance with the maximum duration laid down by the Moroccan Labour Code);
- position;
- job mobility (allowing the employer to change the employee’s position according to its needs without the prior consent of the said employee);
- remuneration;
- working hours (ensure compliance with the maximum legal working time laid down by the Moroccan Labour Code – 44 hours per week);
- adjustment of working hours (allowing the employer to change the organisation of working hours according to its needs without the employee’s prior consent);
- performance (allowing the employer to require the employee (particularly sales agents) to meet a certain number of objectively defined targets);
- place of work and change of place of work (allowing the employer to change the place of work without the employee’s prior consent);
- geographical mobility (giving the employer the right to require the employee to carry out an assignment anywhere in Moroccan territory without obtaining his or her prior consent);
- secondment (allowing the employer to second an employee to a group entity or to a third-party entity for a specific assignment without obtaining his or her prior consent);
- intra-group mobility (allowing the employer to transfer an employee to another group entity without obtaining his or her prior consent);
- exclusivity clause (preventing an employee from carrying on an activity on his or her own account or on behalf of others);
- non-compete clause (preventing (i) an employee, after the termination of his or her employment contract, from carrying on a competing activity on his or her own account or on behalf of others and (ii) the diversion of the employer’s customers and the poaching of the employer’s employees);
- confidentiality clause (making it possible to require the employer to preserve the confidentiality of the information communicated by the employee during the employment relationship);
- jurisdiction clause (making it possible to submit any dispute arising from the employment contract to a specific court, regardless of the employee’s place of work).
As regards the formal requirements of an employment contract, it should be noted that the employment contract must be drawn up in two (2) copies and must be signed/certified by both parties before the local authorities (Article 15 of the Moroccan Labour Code), failing which the employment contract is null and void. The nullity of the employment contract only entails the nullity of the contractual clauses, meaning that the employer cannot rely on the said contractual clauses – the employment relationship nevertheless remains established.
In addition, an employer wishing to recruit a foreign employee (non-Moroccan national) is required to obtain the prior authorisation of the government authority responsible for labour (Article 516 of the Moroccan Labour Code). This is an essential formality for the validity of an employment contract concluded with a foreign employee.
Finally, in order to ensure the legal compliance and validity of the clauses of the employment contract, it is recommended to keep abreast of developments in case law in the field of labour law.
The post-COVID era has opened the door to new ways of working, notably remote working and part-time work. What exactly does the Moroccan Labour Code say about them? What measures should employers take to ensure that their practices comply with local regulations?
Remote working has emerged as a key practice in the reorganisation of the world of work. Initially adopted out of necessity to respond to health restrictions and ensure business continuity, remote working has become a permanent arrangement in many sectors. This form of work gives employees the possibility of performing their professional tasks from home or from any other location away from the traditional workplace. It should be noted that remote working is not regulated by the Moroccan Labour Code.
In the absence of a legal framework, we are of the opinion that remote working could only be imposed on an employee if this measure is justified by exceptional circumstances (e.g. COVID).
In the absence of exceptional circumstances, remote working should result from a mutual agreement between the employer and the employee, at the time the employment contract is concluded or through an amendment to the employment contract (duration, place where the remote work is carried out).
Where remote working is agreed, the employer must provide the employee with the tools necessary to perform his or her duties remotely.
In addition, the employer is required to ensure (i) compliance with the hygiene rules relating to the place of remote work as set out in Decree No. 2-12-262 of 10 July 2012 and (ii) the extension of occupational accident insurance to cover remote working.
Part-time work has also undergone significant change in the post-COVID context. This form of work is characterised by a reduction in the number of hours worked compared with full-time employment, thus offering greater flexibility to employers and employees.
It should be noted that part-time work is not regulated by the Moroccan Labour Code. Despite the absence of a legal framework, we are of the opinion that part-time work may result from the agreement of the parties to the employment contract.
Nevertheless, the reduction of the normal working time of a full-time employee (including the corresponding reduction in wages) is regulated by the Moroccan Labour Code (Articles 185 and 186), subject to the following conditions:
- substantive conditions
- The reduction must be justified by (i) a temporary economic crisis affecting the company or (ii) involuntary exceptional circumstances;
- The reduction in wages may under no circumstances exceed 50% of the normal wage.
- procedure
- In the event of a reduction in normal working time of less than sixty (60) days (over a continuous or interrupted period), the employer is required, before applying such a measure, to consult the employee delegates and, where applicable, the trade union representatives within the company. The employer may only be exempted from this consultation obligation if the appointment of staff delegates is not mandatory because the company does not have the legally required number of employees or if the company has no trade union representatives;
- In the event of a reduction in normal working time of more than sixty (60) days, the employer may only apply the reduction measure after obtaining the prior agreement of the staff delegates and, where applicable, the company’s trade union representatives. In the absence of such bodies, the employer could only apply this measure after obtaining the written agreement of each employee, insofar as it constitutes a substantial modification of the employment contract.
If no agreement is obtained, the employer is required to obtain the authorisation of the governor of the prefecture or province:
- in all cases, if the employer who is considering reducing normal working time usually employs at least ten (10) employees, it must inform the staff delegates and, where applicable, the trade union representatives within the company at least one week before carrying out the reduction, and at the same time provide them with all information on the measures it intends to take and the effects that may result from them. The employer must also consult the staff delegates and, where applicable, the trade union representatives within the company on any measure likely to prevent the reduction of normal working time or to reduce its negative effects;
- The works council replaces the staff delegates and trade union representatives in companies employing more than 50 employees.
It should be noted that Moroccan case law considers that any wage reduction made without complying with the above procedures could be regarded as unfair dismissal if challenged by the employee.
What advice would you give to Swiss companies wishing to set up in Morocco so that they can comply effectively with the Moroccan Labour Code?
To comply effectively with the Moroccan Labour Code, it is imperative that Swiss companies familiarise themselves with Moroccan legal provisions. The Labour Code governs various aspects of employment relations, such as contracts, working conditions, leave and dismissals.
Engage experts in Moroccan labour law
Firstly, it is strongly recommended to engage lawyers or consultants specialising in Moroccan labour law. These local experts have in-depth knowledge of Moroccan laws and case law. Their expertise helps to avoid costly mistakes and to navigate legal complexities. They can provide advice on best practices for hiring, human resources management and conflict resolution.
Drafting employment contracts
Secondly, employment contracts must be drafted in compliance with the Moroccan Labour Code. Companies must make sure to include all the necessary clauses as listed above (see answer to question 1). A well-structured contract guarantees not only legal compliance but also a clear and transparent employment relationship between employer and employee.
Tax and social security compliance
Thirdly, companies must comply with tax and social security obligations in Morocco. This includes contributions to the National Social Security Fund (CNSS), tax withholding on salaries and other mandatory contributions. It is crucial that payments are made within the required deadlines and that returns are submitted correctly to avoid penalties.
Establish internal HR policies
In addition, it is necessary to establish internal human resources policies that comply with the requirements of the Moroccan Labour Code. These policies should cover aspects such as working hours, health and safety, and disciplinary procedures. This not only ensures compliance with the law, but also creates a structured and fair working environment.
Maintain dialogue with staff delegates and the most representative trade unions within the company
Maintaining good dialogue with trade unions and employee representatives is crucial to avoiding conflicts and fostering harmonious employment relations. Regular consultation with stakeholders can help to resolve problems proactively and strengthen cooperation within the company.
Monitoring legislative and case-law changes
Finally, the legal framework may change, so it is important for companies to stay informed of amendments to the Labour Code and other relevant laws as well as of Moroccan case law.