Subcontracting
16 June 2009
Read by 2348 persons
Text: Using an external contractor. This recourse must not harm the interests of employees.
Employee's question.
"I work in a construction company. In recent days, information has begun to circulate about the management's intention to use subcontracting companies. Some colleagues even claimed that managers intend to carry out mass layoffs after the company's revenue decline due to market stagnation. We therefore decided to ask managers for information on this subject. Unfortunately, all attempts failed and management still refuses to comment on its information. A manager even threatened employees if they continue to insist on meeting the director. This is why we want to have information on the stipulations of the Labor Code concerning subcontractors. Does the company have the right to use the services of a subcontractor? Is recourse tolerated even if the interests of employees are threatened?"
Employer's opinion
Our company's sector is going through a difficult period due to the current economic situation. Sales have fallen considerably in recent months and revenue is expected to fall at the end of the current financial year. During the last board meeting, managers proposed using subcontractors for the company's new projects. This proposal is explained by the change made to our recruitment policy. Indeed, for the reasons mentioned above, the company will not be able to recruit new employees. The board of directors should decide on this issue at the next meeting. Thus, no decision has been made by the managers. Otherwise, all the information circulating about the intention to lay off employees is completely meaningless. Even if subcontractors are used, all our company's employees will remain in their positions.
The lawyer's advice
The legislator has given companies the possibility of using a subcontractor. The relationship between the user company and the subcontractor is governed by a written contract. Under the latter, a main contractor assigns a subcontractor to carry out a certain work or provide certain services.
However, there are conditions that must be met before this recourse. Thus, the services of a subcontractor are used if it is in favor of the main company and as long as it does not harm the interests of the employees.
The subcontractor, in his capacity as employer, assumes obligations. To this end, he is responsible for respecting all the provisions of the labor code and legislative and regulatory texts (work card, payslip) as well as legislative and regulatory provisions concerning social security, work accidents and occupational diseases.
For its part, the main contractor also has obligations. Thus, in the case where the subcontractor is not registered in the trade register and does not own a business, the main contractor is required to ensure the application of the provisions of the labor code relating to working conditions and wages with regard to the subcontractor's employees. Similarly, in the event of insolvency of the subcontractor not registered in the trade register and not affiliated with the CNSS, the main contractor is required, up to the sums owed to the subcontractor in favor of the employees working for the latter, to honor several commitments. He is thus required to ensure the payment of wages, provided that a notice of failure to pay the wages of the subcontractor's personnel is sent to him, within 60 days following the due date of the wages of the last month or the last fortnight, by the local authority or the labor inspector (Article 91).
Furthermore, the main contractor is also obliged to pay the paid annual leave allowance, dismissal compensation. He is also responsible for paying contributions to the CNSS, paying the TFP (tax on vocational training). If the work is carried out in his establishment or its annexes, he will also be responsible for the repair of work accidents and occupational diseases.
In the event of insolvency of the subcontractor, the injured employees and the CNSS may bring legal action against the main contractor.
Reference: What the law says
What the law says According to Article 89, in all cases, whether the work is carried out or the services are provided in the establishments of the main contractor or their dependencies or whether they are in establishments or dependencies other than his own or whether they are carried out by employees working at home, and in the event of insolvency of the subcontractor not registered in the trade register and not affiliated with the Social Security Fund, the main contractor is required, up to the sums owed to the subcontractor in favor of the employees working for the latter, to honor the following commitments:
-payment of staff salaries subject to the provisions of Article 91;
-paid annual leave allowance;
-dismissal compensation;
-payment of contributions to the CNSS;
-payment of the tax on vocational training.
Furthermore, when the work is carried out or the services are provided in its establishments or their dependencies, it is responsible for the repair of work accidents and occupational diseases.
Abdessamad Drissi, labor inspector
Published on October 25, 2009
Posted online on November 10, 2009
lematin.ma
Employee's question.
"I work in a construction company. In recent days, information has begun to circulate about the management's intention to use subcontracting companies. Some colleagues even claimed that managers intend to carry out mass layoffs after the company's revenue decline due to market stagnation. We therefore decided to ask managers for information on this subject. Unfortunately, all attempts failed and management still refuses to comment on its information. A manager even threatened employees if they continue to insist on meeting the director. This is why we want to have information on the stipulations of the Labor Code concerning subcontractors. Does the company have the right to use the services of a subcontractor? Is recourse tolerated even if the interests of employees are threatened?"
Employer's opinion
Our company's sector is going through a difficult period due to the current economic situation. Sales have fallen considerably in recent months and revenue is expected to fall at the end of the current financial year. During the last board meeting, managers proposed using subcontractors for the company's new projects. This proposal is explained by the change made to our recruitment policy. Indeed, for the reasons mentioned above, the company will not be able to recruit new employees. The board of directors should decide on this issue at the next meeting. Thus, no decision has been made by the managers. Otherwise, all the information circulating about the intention to lay off employees is completely meaningless. Even if subcontractors are used, all our company's employees will remain in their positions.
The lawyer's advice
The legislator has given companies the possibility of using a subcontractor. The relationship between the user company and the subcontractor is governed by a written contract. Under the latter, a main contractor assigns a subcontractor to carry out a certain work or provide certain services.
However, there are conditions that must be met before this recourse. Thus, the services of a subcontractor are used if it is in favor of the main company and as long as it does not harm the interests of the employees.
The subcontractor, in his capacity as employer, assumes obligations. To this end, he is responsible for respecting all the provisions of the labor code and legislative and regulatory texts (work card, payslip) as well as legislative and regulatory provisions concerning social security, work accidents and occupational diseases.
For its part, the main contractor also has obligations. Thus, in the case where the subcontractor is not registered in the trade register and does not own a business, the main contractor is required to ensure the application of the provisions of the labor code relating to working conditions and wages with regard to the subcontractor's employees. Similarly, in the event of insolvency of the subcontractor not registered in the trade register and not affiliated with the CNSS, the main contractor is required, up to the sums owed to the subcontractor in favor of the employees working for the latter, to honor several commitments. He is thus required to ensure the payment of wages, provided that a notice of failure to pay the wages of the subcontractor's personnel is sent to him, within 60 days following the due date of the wages of the last month or the last fortnight, by the local authority or the labor inspector (Article 91).
Furthermore, the main contractor is also obliged to pay the paid annual leave allowance, dismissal compensation. He is also responsible for paying contributions to the CNSS, paying the TFP (tax on vocational training). If the work is carried out in his establishment or its annexes, he will also be responsible for the repair of work accidents and occupational diseases.
In the event of insolvency of the subcontractor, the injured employees and the CNSS may bring legal action against the main contractor.
Reference: What the law says
What the law says According to Article 89, in all cases, whether the work is carried out or the services are provided in the establishments of the main contractor or their dependencies or whether they are in establishments or dependencies other than his own or whether they are carried out by employees working at home, and in the event of insolvency of the subcontractor not registered in the trade register and not affiliated with the Social Security Fund, the main contractor is required, up to the sums owed to the subcontractor in favor of the employees working for the latter, to honor the following commitments:
-payment of staff salaries subject to the provisions of Article 91;
-paid annual leave allowance;
-dismissal compensation;
-payment of contributions to the CNSS;
-payment of the tax on vocational training.
Furthermore, when the work is carried out or the services are provided in its establishments or their dependencies, it is responsible for the repair of work accidents and occupational diseases.
Abdessamad Drissi, labor inspector
Published on October 25, 2009
Posted online on November 10, 2009
lematin.ma
