April 15, 2020
Pursuant to the Defence Law No. (13) of 1992, the Prime Minister of Jordan issued Defence Order No. 6 on April 9, 2020. This new Order presented several rules to govern, among others, the rights and obligations of the parties in employment contracts. Defence Order no. 6 reads as follows:
“First: a- All employees in private sector entities and establishments or any other entity subject to the Labor Law deserve to receive their wages for the period from March 18 to March 31, provided that employees in the sectors excluded from the Council of Ministers' suspension decision don't have the right to ask for additional pay, unless they are assigned to work overtime in accordance with Article (59) of Labor Law No. (8) for the year 1996.
b- For the purposes of applying paragraph (a) above, paragraph (b) of Article (59) of Labor Law No. (8) of 1996 shall be suspended in relation to legal provisions related to work on official holidays only.
Second: …..Third: …..
Fourth: As of April 1, 2020, the wages of employees in private sector establishments and institutions and in any other entity subject to the Labor Law are determined as follows: a- …b-…c-… d-…e- [Private sector entities] …..who are not authorized to work (forced to close during the curfew) , have the right to submit a request to the Minister of Labor to allow them to pay at least 50% of the agreed on wage for their employees, provided that wage to be paid shall not be below the minimum wage; f- The foundations and conditions according to which employers are allowed to pay no less than 50% of the agreed on wage are determined according to instructions to be issued by the Minister of Labor”; h- …”.
Despite the fact that the curfew started on March 20, 2020, the Defence Order no.6 obligated the employers, whose businesses affected by the curfew, to pay the wages of their employees in full up until the end of March 2020. While, as for the period following April 1st, subject to certain conditions, the employers (whose businesses are closed due to the curfew) have the right to apply to the Minister of Labour to allow them to pay not less than 50% of the wages provided that the wage to be paid is not less than the minimum monthly wages which is JOD220.
This clearly means that Defence Order No. 6 has excluded employment contracts from the scope of application of Article 11 of the Defence Law, which reads as follows: “if it impossible to execute any contract or obligation due to compliance with this law or any order, designation and/or instructions issued accordingly, the person associated with this contract shall not be considered to be in breach of contract and the contract shall be deemed suspended to the extent that the implementation of the contract is impossible.
Such suspension shall be deemed as a valid defence in any suit that has been or is instituted against that person or any measures taken against him as a result of his failure to not perform his contractual obligations”. The provision of Article 11 is clear. All contracts affected by the Defence Orders (e.g., the lockdown and curfew) shall be deemed suspended “to the extent that the implementation of the contract is impossible”.
Defence Orders are issued pursuant to the Defence Law and must not conflict with its provisions. Excluding employment contracts from the scope of application of Art. 11, without the legal capacity to do so, might lead to question the legality of the Defence Order No. 6.
Dr. Ibrahem Amosh is the founder and managing partner of Amosh Legal Services & Arbitration, former Minister of Justice in Jordan and a holder of PhD in commercial law from the University of Edinburgh.