On September 26, 2013, the Minister of Labour and Welfare passed an Order No 125/CAB/MIN/ETPS/MBL/DKL/dag/2013 amending and supplementing this Departmental Order No 028/CAB/MIN/ETPS/DKL/dag/2013 of March 18, 2013 establishing the rate of monthly employer's share to be paid by Employers to ONEM in accordance with article 93 as stipulated in the Constitution of Democratic Republic of the Congo, which allows the Minister to decide by means of an Order.
Under articles 204 and 205 of Law No 15/2002 of October 16, 2002 establishing the Labour Code, a technical and social institution with legal status was created; named "National Employment Agency" (ONEM), its basic task is to promote employment and to achieve the best organization in job market in cooperation with concerned public and private agencies.
As described above, ONEM is a state-run institution, and therefore, is governed by the provisions of Law No 08/009 of July 7, 2008 establishing general provisions applicable to public institutions. Decree No 081/2002 of July 3, 2002 creating ONEM defines the organization and operation thereof. To enable this state-run institution to have stand-alone financial resources, the Minister of Labour and Welfare determined, through Order of March 18, 2013 the rate of monthly employer's share to be paid to ONEM in accordance with this Decree.
In consideration of economic conditions and, for restoring the business climate in DRC, it was concluded that the former rate of employer's share was exorbitant; this was an undoubted hindrance for the employer. Thus, it was necessary to reduce this rate of employer's share in accordance with the resolutions taken at the Meeting of Standing Economic Consultation Framework held in Kinshasa, on July 24 – 29, 2013. The process done by the Minister, through Departmental Order No 125/CAB/MIN/ETPS/MBL/DKL/dag/2013 of September 26, 2013 is the subject of this Alert.
Article 1 of Order mentioned above, sets the rate at 0.2% of monthly remuneration paid by the Employer to workers. This article definitely specifies that this contribution rate should be paid by each public, semipublic and private employer. Also, under the same article, this contribution shall be applied to employers operating in humanitarian service in Democratic Republic of the Congo subject to exemptions granted relevant authorities.
As specifies in Article 2 of the same Order, the employer shall, each month, submit to ONEM, a declaration whereby the contribution will be established, on the second day at the latest ensuing the payment.
This article goes further by stipulating that failure to declare, misrepresentations or incomplete declarations shall result in penalties equal to 50% of the amount of contribution to be paid.
We should note that the employer's share shall be paid within 15 days at the latest ensuing the month in which the remuneration has been paid. Failure to pay in due time shall result in an increase of 50% on the amount of monthly contribution to be paid for each day's delay.
To collect contributions, ONEM Controller sends or submits to ONEM a statement of account containing the full name or corporate name of the employer, the address, ID of the same, the total and details of sums to be paid to the Agency as well as periods to which they relate.
Duly empowered ONEM controllers carry out periodic controls to employers in order to check if declaration of remunerations is accurate and if payment dates of the monthly contribution are complied with.
Contributions not paid on the effective date of Order of September 26, 2013 as well as penalties applicable thereto, shall be computed in accordance with rates as defined in articles 1 and 3, paragraph 2 of this Order.
However, we should underline that the contribution rate may be modified if circumstances and/or economic situation require it.
To conclude, we should note that the non-compliance with the provisions of Order as published in this alert authorizes ONEM to refer the case to relevant courts for its enforcement.