The Ministry of Human Resources and Social Development clarified that the employer’s resort to terminating the work contract due to the circumstances and situations that come under the description of “force majeure” is only after three basic conditions are met and that the worker’s contract is not terminated because of “force majeure” Except after two basic conditions are fulfilled, in accordance with the explanatory memorandum of Article No. (41) of the executive regulations of the Labor Law regarding the regulation of the contractual relationship between employees and employers, and paragraph (1/63) of violations and penalties.
In detail, the Minister of Human Resources and Social Development, Eng. Ahmed bin Suleiman Al-Rajhi approved the explanatory memorandum for Article (41), the text of which is as follows:
Ministerial Resolution No. (142906) dated 13/8/1441 decided to add Article 41 to the list, and Ministerial Resolution No. (146377) dated 9/7/1441 added paragraph (63/1) to Ministerial Resolution No. (178743) based on Article (3) And forty after two hundred) of the work system, which stipulates that “the minister issues the decisions and regulations necessary to implement the provisions of this system within one hundred and eighty days from the date on which the system comes into force, and the executive regulations shall be published in the official gazette,” and based on Article eleven (bis) of the labor system that It states that “Without prejudice to the provisions of this system and the relevant regulations, the minister may take measures that will ensure the improvement of the labor market performance and the regulation of the movement of labor movement”.
The aforementioned decision was issued including Article (41) with the aim of organizing the contractual relationship between employees and employers in the face of exceptional circumstances and force majeure, mentioned in paragraph (5) of Article (74) of the Labor Law, so that the text of the executive regulations of the system was taken into account. They contain the statutory texts and executive decisions that govern the contractual relationship between the worker and the employer, and they came in line with the events that the Kingdom and the world are going through, and the accompanying preventive measures and precautionary measures to confront any exceptional event that is described as force majeure, as the implementation of the provisions of Article (41) of The executive regulations of the labor system are linked to the continuation of the situation or circumstance that characterizes this, in light of what is established in the principles of Sharia and its rules that the judgment revolves around with its cause, presence and absence.
And since it is decided – based on the general rules in the contracts binding on the two parties – that if the obligation of one of the parties lapses due to the impossibility of its implementation, the obligations corresponding to it have lapsed with him, and since force majeure is every event that a person can neither anticipate nor respond to and since even force majeure is performed Breaking the contract must lead to an absolute and permanent impossibility until the end of the contract, not just the difficulty of implementation.
Therefore, Paragraph (1) of Article (41) of the Executive Regulations of the Labor Law clarified the description of force majeure that if the state took – according to what it saw or on the basis of what was recommended by a competent international organization – measures regarding a situation or circumstance that required reducing working hours or measures Precautionary measures that limit the aggravation of this situation or that circumstance and approved a number of measures that must be taken by the employer or worker during the six months following the procedures that have been taken regarding the circumstance or situation before resorting to the concept of force majeure and considering its realization only after six months have passed and the continuation of The situation or circumstance, in addition to it is proven that the facility was harmed by those circumstances, and these procedures were represented in steps that the worker and the employer must implement and adhere to, namely:
First: What is related to wages:
Since fulfilling the worker’s wage is one of the most important obligations stipulated in the work system as a basic element of the work contract that the two parties must agree with, and since the wage is in exchange for work, and since in the event of an exceptional circumstance or situation that calls for reducing working hours, what He must take into account the two parties to the contract in this case based on what is decided by the principles and rules of Islamic Sharia which stipulate that (neither harm nor harm). Paragraph (1) of Article (41) of the executive regulations of the Labor Law indicated that the wage is reduced – during the period of months The following six measures taken regarding the circumstance, condition, or part of the period – in proportion to the actual daily or weekly working hours, provided that the reduction in the application of this provision should not exceed (40%) of the total actual wage, and that it is only during the following six months For the actions taken regarding the situation or circumstance or some of them, according to what is agreed upon, then the business owner must resume payment of the full wage agreed uponPreviously, before the reduction, the worker has no right to refuse to reduce the wage if it does not exceed the indicated limit.
Second: What is related to annual leave:
Since it is legally established according to Article (109) of the Labor Law that the employer has the right to regulate the time when the worker obtains his annual leave, so that the employer can determine the dates of the annual leave for the worker according to the work conditions and requirements, and since the employer has the right to grant annual leave to all workers Within a single period of time, or by rotation among them, Paragraph (b / a) of Article (41) of the Executive Regulations of the Labor Law stated that the employer may grant the annual leave to the worker – during the six months period following the measures taken regarding the circumstance or situation or some From the period – because of his powers and authority to determine the time of the annual leave, according to what he estimates in light of what is required by the interest of work.
In the application of this provision, it must be taken into account that the wages of this annual leave must be paid in accordance with the provisions of Article (109) of the Labor Law, and the worker shall not refrain from exhausting the balance of his due leave whenever the employer decides to grant him the annual leave, and the leave wage is calculated on the actual wage before the reduction applied according to Exceptional circumstances in implementation of the provisions of Article (41) of the Executive Regulations of the Labor Law.
Third: the exceptional leave:
Since it is legally established under Article (116) of the Labor Law that the worker has the right to request a leave without pay, provided that the employer agrees to this leave, as the worker’s exhaustion of his annual leave does not rob him of the right to obtain a leave without pay, Paragraph (C) has indicated From Article (41) of the executive regulations of the Labor Law, that the employer grants exceptional leave to the worker – during the six-month period following the measures taken regarding the circumstance, condition, or part of the period – whenever the worker requests it.
The application of this provision must take into account what is stipulated in Article (116) of the labor system regarding the consideration of the work contract suspended during the period of the exceptional leave, if it exceeds 20 days, unless the two parties agree to consider the contract not suspended for more than this period.
Accordingly, the provisions of Paragraph (1) of Article (41) of the Executive Regulations of the Labor Law came with regulated procedures that must be followed and taken – all or some of them – by the employer and the worker during the period of six months following the procedures that are taken regarding any situation or circumstance that may arise. Described as force majeure, bearing in mind that every unlawful termination takes place during this period, the aggrieved party may obtain his dues determined under the system, contract, or internal work regulation, provided that these rights are not calculated on the basis of the reduced wage during the circumstance or exceptional case, but on the basis of the wage The last one who charges before the circumstance or exceptional case.
Paragraph (2) of Article (41) of the executive regulations of the Labor Law stated that the application of the provisions of this regulation does not prevent the employer from benefiting from the subsidy provided by the state to support the private sector, regardless of the type of subsidy provided, such as helping him pay the wages of his workers, or exempt From government fees, and the like, from what the state decides as part of the procedures for facing the situation or circumstance.
Hence, he does not resort to terminating the employment contract by the employer, considering that this circumstance or this situation is part of the description of force majeure, unless three basic conditions are fulfilled, namely:
1- The lapse of the period of six months following the procedures taken in relation to a circumstance or situation that entails precautionary or preventive measures that require reducing or suspending working hours for a certain period and the continuation of the circumstance or situation.
2- Exhaustion of the application of measures related to wage reduction, annual leave and exceptional leave, all or some of them, and the obligation to adopt them.
3- It is proved that the employer has not benefited from any aid by the state, regardless of the type of benefit he is using to face this circumstance or this situation.
Paragraph (2) of Article (41) of the executive regulations of the Labor Law stated that the worker should not resort to terminating the work contract by the worker, considering that this circumstance or this situation is included in the description of (force majeure) unless two basic conditions are met:
1- The lapse of the period of six months following the procedures taken in relation to a circumstance or situation that entails precautionary or preventive measures that require reducing or suspending working hours for a certain period and the continuation of the circumstance or situation.
2- Exhaustion of the application of measures related to wage reduction, annual leave and exceptional leave, all or some of them, and the obligation to adopt them.
Paragraph (1/63) of Ministerial Resolution No. (178743) regarding violations and penalties stated that every breach or non-compliance in applying the provisions governing exceptional circumstances, the competent authority has a system to impose a financial penalty for this violation estimated at 10 thousand riyals, and this penalty multiplies according to the number of cases and workers. The Ministry may settle these violations once the violation is corrected and the settlement conditions are fulfilled as determined by the Ministr
Leave a Reply