On December 29, 2021, Togo adopted a new labor Act (the New Code) repealing and replacing Act N°2006-010 of December 13, 2006 on the labor code in Togo (the Old Code).

The adoption of the New Code comes in a context of globalized economy, flexibility in the labor market, increase of new information and communication technologies and the need to improve social security and dialogue. 

The New Code is more comprehensive than the Old Code and covers new issues such as the regulation of internships, telecommuting or telework, and compulsory health insurance for the formal private sector for the benefit of employees. 

The New Code applies automatically to existing individual contracts. However, its provisions may not be a cause for termination of the employment contract or lead to a reduction in benefits of any kind, whether individual or collective, acquired by employees in service on the date of its publication. With regard specifically to the obligation to subscribe to a health insurance scheme for the benefit of their newly introduced workers, employers have a period of 12 months from the entry into force of the New Code to comply with it. 

This analysis reviews the major innovations of the New Code. These innovations relate to the scope of application, telework, dismissal, sanctions for violations of the applicable rules and dispute resolution.

Extension of the scope of application of the Labor Code to internships

The New Code governs labor relations (both individual and collective) between workers and employers carrying out their professional activities on the territory of the Togolese Republic, as well as relations between these employers and trainees or apprentices placed under their authority.

The main innovation relates to relations between employees and trainees, which are increasingly governed by specific legal regimes in Africa. The New Code establishes two types of internships, namely the internship-study (stage d’études) and the internship of qualification or professional experience (stage de qualifications). The first type aims to validate a diploma or a professional training while the second type aims to provide to the trainee a practical training allowing him to acquire a qualification or a professional experience. The qualification internship, unlike the study internship, is carried out in exchange for a fixed remuneration that cannot be less than 80% of the internship.

Consolidation of the institutional framework

In addition to the role of the Ministry in charge of employment in drafting the rules for the application of the New Code, the labor and social security inspectorate plays a key role in the implementation of labor legislation in Togo. The inspectorate monitors the application of labor regulations, conducts investigations on occupational hazards, provides advice and recommendations to employers and workers and intervenes in case of individual disputes between the two for an amicable settlement.

In addition, the entities performing placement activities are licensed by the State, while the public employment service is provided by the National Employment Agency (ANPE). The placement activity is carried out by any natural or legal person acting as an intermediary to find a job for a job seeker.

Recognition of new types of employment contracts

The fixed-term and open-ended employment contracts, as well as the probationary employment, appearing in the Old Code are included in the New Code. In addition, the following contracts are expressly regulated in the new Code: seasonal contracts, project contracts, part-time contracts and temporary employment contracts. The extension of contractual work offers is an important innovation that address the realities of the labor market, which is increasingly marked by flexibility and innovation.

New obligations for employers

One of the main innovations of the New Code relates to the introduction of compulsory health insurance for employers. Employers are now obliged to take out an insurance contract covering the risks of illness and non-occupational accidents for their employees. The contributions for this health insurance are paid jointly by the employer and the employee in accordance with the regulations.

Also, the system of registration and affiliation obligations to the National Social Security Fund is now expressly provided for.

Social Security is now expressly provided for in the Labor Code. The latter specifies in particular that the employer is responsible for the registration and affiliation of workers with the social protection bodies, under penalty of administrative and penal sanctions provided for by the Social Security Code.

Remote work is established

Telework or remote work is one of the main innovations of the New Code. It is defined as "the performance of work carried out in whole or in part by the worker, in particular by means of information and communication technologies, away from the place where the work should have been carried out".

The New Code specifies that the telework regime is set out in the collective labor agreements and, failing that, in the internal regulations of the company or establishment or in an agreement between the worker and the employer.

In all cases, the New Code specifies that the employer shall provide the teleworker or the teleworker with the necessary material, technical and technological means or, failing that, shall pay him/her a compensatory allowance in case the teleworker or the teleworker uses his/her own equipment or means. In addition, the teleworker has the same rights as the worker who performs his work in the premises of the company or establishment. An accident occurring at the place where telework is carried out during the performance of the teleworker's work is an accident at work within the meaning of the Togolese Social Security Code.

Reorganization of the system of termination of employment contracts and improvement of the system of dismissal for economic reasons

In addition to the introduction of specific provisions relating to the conventional termination of employment contracts on the one hand, and on the other hand, the introduction of specific provisions relating to the termination of trial contracts and project contracts, the New Code reorganizes the provisions previously applicable to dismissal for economic reasons.

Thus, an employer who intends to dismiss for economic reasons is required to take alternative solutions in consultation with the workers' representatives and to seek with them all solutions allowing the maintenance of jobs. Among these solutions, we note the reduction of working hours or activities, the reorganization of work, shift work, part-time work, technical unemployment, training or redeployment of personnel, the granting of unused or anticipated leave, the temporary unemployment of all or part of the personnel, the reduction of bonuses, allowances and benefits of any kind, and, if applicable, salaries. These alternative measures proved their importance during the COVID-19 pandemic and were taken up by many social legislations in Africa.

In addition, the New Code specifies that workers dismissed for economic reasons benefit from a non-taxable support measure, paid by the employer, which may not be less than one month's gross salary in addition to the compensation in lieu of notice and the redundancy allowance. In addition, workers in this situation also benefit from a 24-month priority of re-employment from the date of the termination of their contract. Thus, the duration of the priority of re-employment is largely extended to 24 months, contrary to the 6 months provided for by the Old Code.

Disciplinary sanctions and criminal provisions for violations of the Labor Code

In addition to the criminal sanctions contained in the Old Code, the New Code now provides for disciplinary sanctions for actions considered wrongful by the employee and implemented by the employer. The New Code lists the disciplinary sanctions and sets limits on their application. Thus, the employer is prohibited from imposing financial penalties on the employee, just as he is prohibited from punishing the same wrongdoing twice. Also, the New Code specifies that no wrongdoing by the worker may give rise to disciplinary proceedings after a period of two (02) months from the day the employer became aware of it, except for facts liable to criminal prosecution.

Regarding the criminal sanctions, we note in particular an increase in the penalties provided for. This is the case for the prohibition in principle of employing children under 15 years of age ("young workers" within the meaning of the New Code), which is now punishable by a fine of 500,000 to 2,000,000 XOF and, in the event of a repeat offence, by a fine of 1,000,000 to 5,000,000 XOF. The former Code provided for a fine of 50,000 to 100,000 XOF and in case of recidivism, a fine of 100,000 to 200,000 XOF.

Reorganization of arbitration as a means of dispute settlement

The procedure for settling disputes concerning individual disputes remains relatively the same before the Labor Inspectorate and in the labor courts in both the Old and New Codes.

Collective disputes between a group of employees and an employer or a group of employers are still subject to arbitration if the conciliation procedure before the Labour Inspectorate fails.

While the arbitration procedure is provided for in the Old Code by giving the Minister in charge of labor the power to appoint the members of the arbitral tribunal on the basis of legally identified statutory criteria, the New Code liberalizes this method of dispute settlement by giving the disputing parties the freedom to appoint the sole arbitrator or the arbitration board on the basis of a list drawn up by order of the Minister in charge of labor on the basis of proposals from the employers' and workers' trade unions.

Also, for more efficiency, the arbitration award is now notified to the parties and to the inspector of labor and social regulations by registered letter with acknowledgment of receipt within 48 hours from the date it was rendered. The Old Code only specified that the award was notified to the parties without delay. In any case, it should be noted that such arbitration is set up and conducted under the auspices of the State and does not fall within the framework of the OHADA Uniform Act on Arbitration.

All in all, the New Code comes at the right time in a context marked by the Covid-19 pandemic with numerous disruptive consequences. These consequences do not spare the employment market, work tools and social security. However, the optimal application of the New Code remains conditioned by the advent of the application texts that the Togolese authorities will be called upon to adopt soon.

Synoptic table of main legal changes between 2006 and 2020
 

	2006 Labor Code	2020 Labor Code	Practical outcomes
Scope of application of the Code	Labor contracts Collective agreements	Labor contracts Collective agreements Internship contracts	Protection of intern’s interest and increase of employers duties
Type of labor contracts	Open-ended contracts Fixed term contracts Trial period agreement	Open-ended contracts Fixed term contracts Trial period agreement seasonal contracts, project contracts, part-time contracts and temporary employment contracts	Flexibility in employment market
Health insurance	N/A	compulsory health insurance	Increase of social security
Remote work	N/A	Legal regime of remote work	Flexibility and digitalisation of work market
Dismissal for economic reasons	Legal regime of Dismissal for economic reasons	Legal regime for economic reasons legal alternatives to the dismissal for economic reasons	Safeguarding jobs
Arbitration of collective work disputes	Legal regime of arbitration	Legal regime of arbitration and Right granted to parties to nominate arbitrators		Increase of trust of arbitration users