Tamkeen for Legal Aid and Human Rights published a position paper where it highlighted its remarks on Defense Order (6) and the notice that followed number (7). The organization criticized the notice, saying that “the government renounced its economic and social duties, even though they concern inherent rights of its people, the most important of which are their social and economic protection.”

Below, you can find the Position Paper:

Amman- On March 17^th, the Jordanian government activated the Defence Law No. 13 of 1992, which gives it the right to disable existing legislations, in order to implement its procedures to combat the Corona Virus Pandemic (COVID-19). Subsequently, the first Defence Order was issued on March 19^th, followed a series of orders, with 12 orders issued till May 0^th, 2020. The most notable of these orders is Order (2), which imposed an indefinite curfew on the full Kingdom that bans people from leaving their homes even to purchase food. The curfew resulted in the closure of both the public and private sectors, which negatively impacted both employers and workers.

The most controversial of these decisions was Defence Order Number 6, due to focus on the relationship between employers and workers. The order was faced with a wave of backlash that focused on the unclarity of its articles and injustice to workers’ rights.

This was reinforced on May 30, 2020, when the government issued Notice Number (7), which allowed for the wages of workers in the private sector to be deducted for the months of May and June. According to the new instructions, employers, in the most affected sectors by the pandemic, can agree with their workers to reduce their monthly wage by 30% for those who have been working either fully or partially during the months of May and June. As for workers who have not been assigned any work or were not required to work, their wages can be reduced by 50%. Finally, wages for workers employed in the hardest hit sectors could be reduced by up to 60%, conditioned that the wage after the deduction will not be less than 150 JOD. The amendment also allowed employers to reduce the balance of annual leave for the year 2020 by up to 50% for workers not assigned any work, whether in their place of work or remotely, who did not work for consecutive 30 days in the period between the activation of the Defence Law till the date of the issuance of Notice (7).

Moreover, the amendment included a clear and blatant discrimination against Migrant Workers, as they were excluded from the articles concerning the renewal of contracts as well as the prohibition of laying off workers. The amendment stipulated that fixed-term work contracts that ends within the period of 30/4/2020 till the deactivation of Defence Law shall be renewed for Jordanian workers.

It also obliges employers to revoke any prior decision that is contrary to this amendment and reinstate the previous status, exclusively for Jordanian workers. Instead, these contracts shall be automatically renewed as long as the Defence Law is implemented in the Kingdom; unless both parties agreed to renew the contract for a period that exceeds the expiry of the Defence Law.

In this regard, Tamkeen notes that both notice (7) and Defence Order (6) as well as the other reports issued regarding the stoppage of work and the rights of workers were unnecessary and unneeded. The reason behind that is the existence of article (50) in the Labour Law, which stipulates that:

“If the Employer had to suspend the work temporarily for a reason not attributable to him and which he cannot prevent, the Employee shall be entitled to full wage for a period not exceeding the first ten days from the suspension of work within the year and to pay the Employee one half of his wage for the period in excess of same whereby the total of the entire period of suspension of work does not exceed sixty days per year.”

However, the government decided on April 8^th to suspend this article, and instead implement paragraphs (e) and (f) of article (4) of Defence Order (6).

The paragraphs state that:

(e) - The employers of the establishments and institutions authorized to work "part-time" with regard to workers who are not assigned to work, institutions covered by the suspension decision and those that are not authorized to work, have the right to submit a request to the Minister of Labor to allow them to pay at least 50% of the value of the normal wage for these workers, provided that it's below the minimum wage.

F - The conditions and standards according to which employers are allowed to pay no less than 50% of the value of the original wage are determined according to instructions issued by the Minister of Labor for this purpose.”

Thus, Notice (7) was issued by the government, even though the legislations already has a clear and unambiguous text in the Labour Law regarding the stoppage of work. If only, it activated the article from the beginning, then it would not have created the current state of confusion on the legislative, political, social and economic levels. Then, it would have been sufficient for it to issue decisions that supported the employers in applying article (4) of the order. If it had done that, its decisions would have been in line with legislation and laws on the one hand, as well as being accepted and clear by all sectors (workers and employers) without the slightest objection on the other hand. The current situation though means that the government has renounced its duties related to its economic and social protections for both workers and employers; which in turn pitted workers and employers against each other.

In the context of this governmental confusion, Notice (7) was issued on May 31^st, 2020 as an attempt to return to the implementation of Article (5) of the Labour Law in recognition of the error it made when it stopped the economic sectors from working. However, the government and as usual refused to explicitly acknowledge its mistakes; but what is built on falsehoods will only result in more errors. Therefore, the Notice created even more confusion and errors, that include:

1. The Notice included the emphasis that Jordanian workers be provided with all possible means of protection under these circumstances. Thus, the discriminatory tone against other workers was the notice’s first error. While the government might reply that the protection of its citizens is its priority according to the constitution, non-discrimination on the basis of nationality is also a constitutional priority under the international treaties; especially when talking about the rights of workers and the procedures to ensure the safety of their working conditions in light of the current crisis. These procedures are anchored in the relation between workers and employers, but are also related to the treatment of the state of these workers. It should be noted that we are not asking for non-Nationals to be provided with direct aid, even though they need it, but it is the duty of the state to ensure that they are provided with the minimum standards of decent living.
2. The procedures included in the notice do not lead to the conclusions claimed by the government in its introduction, as will be clear in the later points, in relation to the protection of the Jordanian worker. On the contrary, it will lead to the derogation of his rights.
3. Regarding the renewal of fixed-term work contracts till the date in which the Defence Law is deactivated, conditioned that the contract was previously renewed for 3 consecutive times, this indicator falls short of achieving its goal of protecting either the worker or the employer. The notice did not differentiate between the different terms of work contracts, as some of them are fixed for a period ranging between one month to 3 months, where its total would not exceed 9 months and it is renewable for that duration. Per the notice, these contracts will be renewed, while those whose contracts were for a duration of 2, 3 or even 5 years but it expired during the curfew will not be renewed. These workers would consequently lose their jobs even though they worked for the same institution for 5 years, because their contracts were not renewed 3 times. Moreover, the specification of contracts that expired at April 3^rd is meaningless and unjustified, since the curfew started on March 17^th. If the objective of the notice is protecting the worker, then what is the difference between those whose contracts ended on March 17^th or on April 3^rd since both workers lost their jobs and were forced to start looking for a new one in the midst of the curfew?
4. Making employers responsible for paying the wages of workers whose contracts were expired, either by returning them to work or by keeping them as employed but without work due to the crisis or because they are no longer needed has no basis in the law in any way. Such a move will also result in the treasury incurring huge compensation fees, if employers’ resort to the judiciary to demand compensation.

Some might say that fixed-term contacts are sometimes exploited by employers to circumvent the law and deprive the worker from the benefits of an indefinite contract; or of benefits that the entity’s bylaws would give its most experienced employees or those who were employed the longest. However, addressing the matter in this way is far from the spirit of law and justice, as not all cases are the same. It also cannot always be said that renewing the fixed-term contract repeatedly is always done to circumvent the law since each case has its circumstances according to the nature of the work and the entity where the worker is employed. Thus, the standard set by the notice is neither impractical nor objective; and cannot be justified by the futile cause which is the return of the worker by force, as it was more appropriate to look for more fair, legal and objective solutions.

5. The exception of non-Jordanian workers from this extension is also extremely weird, especially since it comes in the midst of the current circumstances, which affect all workers. Therefore, it can be said that the exception is not governed by objective reasons, as much as political propaganda, so that the government might appear through its notice as sponsoring the rights of its citizens.
6. In terms of the text itself, the usage of the term contract renewal would mean renewing it for a similar period as the first contract. This interpretation might create problems, especially if it is applied on long-term contracts in this way. If the employer had a two-year contract with the worker, he would find himself obliged to renew it for another two years if the contract expired during the mentioned curfew period. Therefore, it would have been better to use the word extension and not renewal.
7. Non-Jordanian workers were excluded from the provisions of this notice. It was not explained whether this exception was limited to the notice or also extends to Defence Order 6 in its entirety. For example, if the exception is limited to the notice only, then this means that Defence Order (6) is still in force on non-Jordanian workers. However, if the exception is comprehensive to cover the order and the notice from the date of the notice, then does this mean that the suspension of Article (50) in the Labour Law is now null and void and is applied on them as of June 1^st?
8. As for the provision related to the reduction of wages by 30% for the worker after taking his consent and by his free will and that the reduction includes the salaries of the high management of the institution; this provision was already included in the Defence Order, and there were no changes on it that would require the new text included in the notice.
9. With regard to Article (28) that permits the dismissal of a worker in certain cases, we have the following comments regarding the giving of Jordanian workers the advantage of reporting directly to the Ministry of Labour to complain and verify the truth of the dismissal, and whether it is arbitrary or not:

1. This is a blatant transgression of the jurisdiction
2. The mechanism in which the Ministry of Labour will check and verify the method of dismissal, the rights of both parties and reviewing these decisions was not clarified.
3. The reality on the ground and through the Corona Crisis, the inability of the Ministry's personnel to prosecute violators was proven, as well as their lack of an effective implementation mechanism.
4. Assuming the efficacy and speed of the Ministry’s procedures to investigate cases of arbitrary dismissal, returning the worker and punishing the violator, then it is surprising that non-Jordanians are excluded from this mechanism, especially non-Arabs who already face countless difficulties, even before the crisis, to access justice through the judiciary system. These difficulties increase for non-Jordanian workers, if they do not speak Arabic and might not be able to hire a lawyer anyway due to their difficult financial situation.

The difficulties are further exacerbated on workers residing and working in Qualified Industrial Zones (QIZ), as well as refugee workers in camps, who even though speak Arabic but find it difficult to move around.

10. Regarding the right of the employer to reduce the wage by 50% for those employees who have not been assigned any work or were not required to work, this decision was unclear as it did not clarify what was meant by employees who were assigned work, and what are the criteria that will be used to determine who was assigned work or who was not, especially if these workers had the same position and received the same wage, which might even be set at minimum wage.
11. Finally, in terms of the sectors that were considered the most affected, it was noted that private schools were considered one of them, even though they continued working through the Online Education Strategy. Furthermore, students in these schools were not exempted from the instalments due during the curfew period, nor were these payments reduced. Consequently, there is no justification to consider this sector as most affected. While it may be true that some schools did not receive all of its students’ instalments, but these sums remained in their balance under the responsibility of the students ’parents, who will pay them at a later date. It is thus unjustified that school owners were given the right to reduce the wages of some of its workers by 60%.

In the same time, there were some sectors that were considered most affected, even though they were not since the effects were mostly felt by institutions in the sector and not the sector as a whole. What is the difference between medical clinics, private dental clinics, engineering offices (not included), for example, and lawyers' offices, real estate offices, and accounts (covered)?

Again, we affirm that there was no need to suspend Article (50) of the Labour Law to begin with. If that step was not taken, then we would not have entered this state of confusion that the government pushed us into. Instead, the law would have been implemented and all parties would have been satisfied with a minimum level of protests.

Additionally, the exclusion of non-Jordanian workers from this notice is unjustified, and illegal since it is discriminatory on their labour rights, and in their access to justice; even though it is noted that in its current form, the notice does not even include this right or Jordanian workers.

At the same time, the method implemented by the government to supposedly protect workers economically by forcing employers to keep them employed through the renewal of their expired contracts is against the law and will be subject to compensation later on.

As was abovementioned, it is clear that the government has evaded its duties, even though they concern inherent rights of its people, the most important of which are their social and economic protection.