Africa Focus
Nesrine Roudane Partner, Head of Office - Morocco
With the extension of the life expectancy and with the baby-boomer generation reaching the legal retirement age in masses around the world since the mid 2010s, causing a rapid depletion of a valuable portion of the workforce, the need for governments to push back the age limitation on employment has been at the forefront of labour-related action.
As a result, over the past five years, most countries in the Maghreb region (Algeria, Libya, Mauritania, Morocco and Tunisia) have amended their employment laws and regulations with respect to the legal retirement age and the means for employees to work past it.
This article presents an overview of the current legal and regulatory framework governing the matter in each country, as well as a short commentary intended to provide the reader with a comparative understanding of – and appreciation for - the various regimes based on their level of employee-friendliness in terms of the capacity of the employee to impose his will, cumbersomeness in terms of administrative formalities and flexibility in terms of possible duration of employment past the legal retirement age.
In Algeria, the legal retirement age, as defined by article 6 of Law n° 82-12 of 2 July 1983 on Retirement, as amended and completed, is 60. However, since the adoption of Executive Decree n° 20-107 on 30 April 2020, it is possible for any worker to remain employed until he/she reaches 65, at his/her option.
The Algerian approach is, by far, the most employee-friendly and least cumbersome in the region, but is also causes, for the employer, the highest level of uncertainty.”
To exercise this option, the employee must simply address a written request to his/her employer. This written request must be kept by the employer in the administrative file of the employee.
Nonetheless, this choice is not definitive and the employee may still opt to retire before reaching the age of 65, by providing the employer with a six-month prior notice. The employee must retire (or be retired) upon reaching the age of 65.
By leaving the decision exclusively to the employee, by not requiring any administrative approval and by making the option revocable, the Algerian approach to working past the legal retirement age is, by far, the most employee-friendly and the least cumbersome in the region. However, the uncertainty related with the exercise of these rights by a given employee also reaches, for the employer, the highest level.
In Libya, the legal retirement age, as defined by article 13 of Law n° 13 of 14 April 1980 on Social Security, is 65 for men and 60 for women and workers in hazardous or unhealthy occupations, as defined by regulation. Men can also retire at 60 with their consent and that of their employer.
However, since the amendment of Law n° 13 in January 2022, it is possible for healthy workers who have reached the legal retirement age (60 or 65, as applicable) to remain employed until they reach the age of 70.
The Libyan approach is must less employee-friendly than most other regimes in the region and presents one of the highest levels of uncertainty for the employer. To do so, the employee is required to apply and obtain the approval of the employer.”
By allowing work until the age of 70, the Libyan approach is one the most flexible in the region. However, by requiring the approval of the employer, it is much less employee-friendly than most other regimes in the region. Furthermore, for the employer, the level of uncertainty associated with the effective length of employment past the legal retirement age remains among the highest. Still, by not requiring any administration authorization, the procedure is less cumbersome than other jurisdictions.
In Mauritania, the legal retirement age, as defined by article 52 of Law n° 67-039 creating a Social Security Regime, as amended and completed by Law n° 2021-007 of 22 February 2021, is 63. It was previously set at 65 for men and 60 for women.
The Mauritanian approach is the most flexible and the least cumbersome in the region, but it also presents the highest level of uncertainty.”
Although Mauritanian Law does not provide a procedure for a worker to remain employed beyond the legal retirement age, article 51 of the Mauritanian Labour Code (Law n° 2004-017, as amended and completed) expressly states that a party that intends to use retirement as a means to validly terminate an indefinite term employment contract must notify the other party in advance, with the duration of the notice period (15 days, one, two or three months, based on the position of the employee) being set by decree.
As such, it is legally possible for employees to continue working indefinitely beyond the legal retirement age, with the tacit or express approval of their employers.
The Mauritanian approach to working past the legal retirement age is the most flexible and the least cumbersome in the region. It is equally employee and employer- friendly, but it also provides, unless there is a specific agreement in place between the parties, for the highest level of uncertainty as to when the employment relationship will effectively terminate on this basis.
In Morocco, the legal retirement age, as defined by article 526 of Law n° 65-99 forming the Labour Code, as amended and completed, is 60, except for:
miners who have spent at least five years working in mines, for whom it is set at 55;
workers who, at 55 or 60 (as applicable), have not yet contributed to the social security regime in order to draw full retirement benefits, in which case the legal retirement age is postponed until he/she can draw full benefits.
To work past this age, an order (arrêté) from the Ministry of Labour must be sought by the employer acting with the consent of the employee.
The Moroccan approach is less employee-friendly and more cumbersome than most in the region. It is also one of the least flexible.”
It is noteworthy that Moroccan law does not place a limit to the extension of the employment relationship. However, in practice, this extension is not granted for more than two (2) years.
It is also noteworthy that, in Morocco, the employer has the obligation to replace any employee who retires or is retired (Art. 528 of the Labour Code).
By requiring a governmental order to work past the legal retirement age, the Moroccan approach is less employee-friendly and more cumbersome than most regimes in the region. By limiting, in practice, the extension to two (2) years, it is also the least flexible.
In Tunisia, the legal retirement age, as defined by article 24 of Law n° 85-12 of 5 March 1985 on Civil and Military Retirement Regimes, as amended and completed by Law n° 2019-17 of 30 April 2019, is 62, except for “workers who perform arduous and unsanitary tasks”, “agents with demanding functions” and “agents of active managers”, all defined and listed by decree, for whom it is set at 57 (Arts. 27, 28 and 29).
In all cases, it is possible for the employee to continue working beyond that age for one year, two years or three years, at his/her option (Art. 71 bis).
While leaving the decision to the employee, in one of the least flexible ways in the region, the Tunisian approach also provides the most certainty to the employer.”
To exercise this option, the employee must simply address a written request to his/her employer six months prior to reaching the legal retirement age, which request is transmitted to Social Security services.
However, as far as the employee is concerned, this decision is legally considered as “definitive and irrevocable”.
By allowing employees to work past the legal retirement age by only up to three years, the Tunisian approach is one of the least flexible in the region. However, by requiring the employee to set in advance the period during which he/she wishes to work past the legal retirement age, it also provides the most certainty to the employer, while leaving the decision in the hands of the employee, thus remaining more employee-friendly than other jurisdictions.
For further information, please contact Nesrine Roudane.
Published in September 2022
Disclaimer While accurate at the time of publishing, this article does not cover all aspects of the issue and leaves out important considerations (social security contributions, military personnel, taxes, etc.). It is not intended as and does not constitute legal advice in any individual case. Any opinion expressed in this article is that of the author only.
