Is there some space for Ethics in the Congolese Labor Law?

~~Asking if there is some space for ethics in the Labor Law of my Country, the Democratic Republic of Congo (DRC), does not mean I am questioning the morality or the ethical character of the Law. It simply is an attempt to analyze how eloquent is the labor law in terms of ethics and how it affects the human resources practices at the workplace here in the context of the DRC. Such an analysis calls for notions of business ethics, and more specifically ethics in the field of Human Resources Management.

Business people are first and foremost human beings and as such have different approaches to making meaningful decisions, most when these concern other humans. The literature describes four ethical approaches that have stood the test of time: The utilitarian approach, probably the most familiar and easiest to understand of all approaches to ethics. It is based on a very important question: "How will one’s actions affect others?" It is a quantification of the impact of people’s actions based on some least common denominator, such as happiness, pleasure, or wealth. The second approach is deontological, also known as duty-based ethics, which differs from the utilitarian approach by the fact that it is based on obligations or principles, not on ends or consequences. The third approach is the virtue theory differs from the other approaches since it is a person-oriented approach, unlike the others which are more action-oriented. According to Rae and Wong (2004, p.89), the foundational moral claims made by the virtue theorist are those about the person doing the action, not the act that he or she performs. The fourth approach is the communitarian one. The communitarian asks the important question "What are the demands (duties) that the community (ies) of which I am a part make on me?" I will use one or another of these approaches all along the present analysis.

What about the Congolese Labor Law? Promulgated on August 09th, 1967, the first Labor code of the Democratic Republic of Congo was amended and completed by that of October 16th, 2002 which currently regulates work relations between employees and employers. Very important innovations have been brought by the new version, including many ethical aspects such as the ban on and immediate action of elimination of the worst forms of child labor, the strengthening of measures against discrimination towards women and people with disabilities, or the implementation of suited structures regarding health and safety at work to assure an optimal protection of employees against nuisances. According to the legislator, this labor code aims to be an instrument for social peace. However, it is not clear enough if the milestones achieved during the last decade in terms of Ethics were taken into account while amending the Labor Law. That’s what urged me to believe that this Law is rather widely outdated with regard to both the economic and social development of the Country and to its conformity with international work standards.

Speaking of laws and regulations, the Congolese labor code serves as a legal frame for relations at the workplace and sets the minimal terms and conditions for employment. It is completed, and not contradicted, by other texts, internal to each organization, which could attribute employees more advantageous working conditions. These texts could include Company Regulations or the so-called “Règlement d’ordre intérieur”, Collective Agreements between labor unions (employers and employees) or Codes of conduct, also known as Codes of ethics; which are supposed to set the employment terms and conditions specific to every organization.

The Congolese Labor Code enumerates the employee rights as follows (translation from the French version): Art. 55: the employer has to supply to the worker the agreed employment, in the agreed conditions, time and place; he is responsible for the execution of the contract of employment for every individual acting on his/her behalf. He has to manage the worker and ensure that the work is being done in suitable conditions, both in terms of safety and health and dignity of the employee. He has to grant to the employee the dignity and the time required for the fulfillment of his/her mission. This time is considered and paid as working time. (…) and Art. 56: The employer supports the charge resulting from the transport of employees from their residence to their workplaces and vice versa. (…)

The following few employee rights should appear in the policy statement of any company: the right to receive a fair pay, the right of safety in the workplace, the right of due process in the workplace and the right to privacy in the workplace.

~~My point in this posting joins Wong and Rae’s point of view (2004, p.256) that the discussion on the subject of employee rights has incredibly evolved, from the “employment at will”, which is the idea that the employer had the right to hire and fire at his discretion to the current emphasis on moral fundamental rights. From a HR perspective, I really like Rowan’s (2000) definition of a right: a moral claim. He explains that ‘moral’ is because it is not necessarily recognized by any conventional system and ‘claim’ because it is a particular type of right, one that is correlative with a duty on the part of the person(s) against whom the right is held. This description of claims implies that they are relational. And this is what employee rights are. Rowan considers that, on this understanding of the moral foundation of employee rights, the following few employee rights should appear in the policy statement of any company: the right to receive a fair pay, the right of safety in the workplace, the right of due process in the workplace and the right to privacy in the workplace. It is also worth mentioning that the notion of employee rights and privacy is broad, encompassing many specific issues. In addition, there is great debate over which rights workers do possess when they enter the workplace and under what conditions these rights may be overridden.

As I already pointed out, I am not trying to say that the DRC labor law is unethical. This could be a biased assertion since the labor Code clearly mentions, in its introductory lines, the inclusion of many ethical aspects among the most important innovations it brought. Yet, I cannot say that the Code is as exhaustive as it should be to guarantee ethical work relations. On the other hand, the internal texts and regulations which are supposed to complete the Labor Code are very often used against employees’ rights based on the principle that “what is not prohibited is hence allowed”, taking advantage of the silence of the Law.

While analyzing the employees’ rights in the Congolese labor law, and comparing them to most common practices, I picked out two types of discrepancies: The first case is that of law items that could provide broad or specific definitions of concept but, are outdated or simply not adapted to the actual context (for example the right to a fair pay in the Congolese Labor Code: art. 86-118 and decree n°08/040 determining the minimum applicable salary (SMIG)). The second case is that of complete omission of concepts that have been proved to be rights or are recognized as international standard practices with the evolution of the labor legislation (for example The right to privacy in the workplace, and also outside the workplace). I have noted, otherwise, that the right of safety in the workplace and the right of due process in the workplace are, undoubtedly, areas of strength of the DRC labor law in terms of employee rights. The labor code, indeed, is very extensive regarding the right of employees to be consulted and informed by employers, especially through empowering labor unions and employees’ representations (art. 259-263); same for the employee rights to safety and security at work (art. 159-176). In practice, however, there are countless examples or violations (or simple omissions) of these employee rights.

The aforementioned contradictions are the reason that led me to think that, talking of ethics and employees right, there still is a space for improvements in the DRC labor code in order to guarantee more ethical work relations and, as a result, a more ethical work environment. Very often, corporations concede rights to employees only because these are legal. Therefore it is important for the labor law to be the most exhaustive possible so that employers have no choice than to comply. Moreover, employee rights, in addition to being legal, should be moral for the simple reason that, as asserted by Rowan (2000), first, employees are persons; and second, there is something morally significant about persons, something that makes it wrong to treat them in certain ways.

That is why I would like to suggest what I think could be improvements of the labor code in order for it to be somehow more ethical and, consequently, encourage more ethical practices in the workplace. The first improvement concerns the employee rights to receive a fair pay: I would recommend that compulsory measures be included in the labor code, which take into account the employee’s dignity; including regular reviews of legal texts/decrees. The second recommendation is that the labor code should clarify the concepts of safety at work – notably those of “occupational disease” and “occupational accident” in order to prevent disputes resulting from misinterpretation or misunderstanding at the workplace. Last, and probably the most important improvement, is to include in the Labor Code a section dedicated to privacy with its content being based on theories of ethics in HRM.

Comments

[sharifa]

What do you mean by privacy in the workplace and outside the workplace?

[Serge]

According to Rowan, the right to privacy in the workplace (and also outside the workplace) derives from the basic right to freedom, and at a minimum this entails the right to be left alone, including the right to withhold from employers personal information that is not relevant to the job.