Powers of the Labor Judge in Iraq

The law designates the competent authority to apply its provisions in case of disputes between its parties or violations thereof, which are the labor courts in Iraq. The labor judiciary is specialized with a unique formation. According to Article 165 of the ILL, the labor court was originally composed of three members: a judge from the Supreme Judicial Council, a representative of the most representative general union of workers, and a representative of the most representative employers’ union. However, following the issuance of the Federal Court’s decision No. 67/Federal/2021 on 29/9/2021, which declared the unconstitutionality of paragraphs 2 and 3 of this article, the labor court now consists solely of a specialized judge without the membership of the other parties.

These courts consider cases from both criminal and civil perspectives, depending on the court’s authority. The first type involves criminal complaints filed by the Labor or Social Security Department based on a referral from the minister, who has the sole authority to make such referrals under the law. The second type involves lawsuits filed by workers against employers or by employers against workers directly.

Criminal Authority of the Labor Judge

Pursuant to Article 166/First of the effective ILL, the labor court is vested with the authority to adjudicate civil and criminal lawsuits and disputes as stipulated in the ILL, the Retirement and Social Security Law for Workers, and other relevant legislations. The legislator has empowered the labor court to impose criminal penalties, including imprisonment and fines, across various provisions to ensure compliance with the law by employers or their representatives. This approach aligns with comparative laws such as those of France, Egypt, and Algeria.

The law imposes specific legal obligations on employers, and any breach of these obligations constitutes an offense warranting criminal penalties. For instance, Article 24 states: “The employer who violates the provisions of employment shall be punished with imprisonment, a fine, or both.” This provision authorizes the labor judge to impose imprisonment, fines, or both for violations of employment provisions.

Article 52 prescribes penalties for violations of Chapter Six, related to individual contract provisions, stating: “Anyone who violates the provisions of this chapter shall be punished with imprisonment or a fine.” Similarly, Article 64 mandates: “Anyone who violates the provisions related to wages stipulated in this law shall be punished with a fine not less than twice the minimum monthly wage prescribed by law.”

The law also imposes fines for violations of working hours, rest periods, and legally specified holidays, as outlined in Articles 73 and 83 of the effective ILL. Articles 94 and 105 impose fines on employers who violate provisions related to the employment of women and minors, underscoring the importance of protecting the minimum rights of these groups and preventing their exploitation in unsuitable work.

This principle extends to the protection of quarry workers, foreign workers, and labor inspection, with Articles 36, 112, and 130 of the effective ILL mandating imprisonment, fines, or both for violations of these provisions.
It is noteworthy that this approach does not contravene the principle of legal legitimacy, as criminalization and punishment are explicitly stipulated in the law, ensuring that the judge adheres to the principle of legality when applying the provisions of the labor law.

Civil Authority of the Labor Judge

The legislator has conferred upon the labor court judge the same authority as that of a civil court judge, empowering them to adjudicate on matters of nullity, compensation, and termination. The labor law encompasses mandatory provisions, which are legal rules that individuals must adhere to and respect. Any agreement contravening these rules is deemed void due to its connection to public order or the minimum protection mandated by law. Agreements that exceed this minimum protection are permissible if they confer greater benefits to the worker than the minimum prescribed by law, provided they do not violate public order and morals, as stipulated in Article 14/First of the effective ILL.

Should the labor judge identify an agreement between the contractual parties that infringes upon these mandatory provisions, they are authorized to declare it void, notwithstanding the worker’s consent to the waiver, agreement, or settlement. Article 14/Second states: “Second: Any condition in a contract or agreement whereby the worker waives any of the rights granted to them under the provisions of this law is void.”

Article 48/Second/A provides for nullity in the event of termination of the employment contract contrary to the provisions of this law. Article 56 of the same law stipulates the nullity of any waiver of wages due to the worker and prohibits their seizure, thereby protecting the weaker party in the contractual relationship who may be coerced by the employer to relinquish their rights while needing to remain employed and satisfy the employer.

Numerous articles also vest the labor judge with the authority to award civil compensation in cases of work-related injuries and damages. Compensation, in this context, refers to a remedy for civil liability, whether contractual or tortious, aimed at redressing the harm, which may be monetary or in-kind. It is a sum of money or satisfaction of the same nature as the harm, equivalent to the loss suffered by the injured party and the gain they missed. It serves as a means for the judiciary to redress the harm. The labor judge is empowered to award appropriate compensation for the harm suffered by the worker in the event of nullifying the employer’s decision to terminate the employment contract, as stipulated in Articles 47/Second and 48/Second/A.

The worker is also entitled to file a lawsuit seeking civil compensation arising from the breach of labor law provisions before the labor court. Article 83 states: “Anyone who violates the provisions related to working hours and leaves stipulated in this law shall be punished with a fine… and the fine shall be multiplied by the number of workers for whom the violation occurred.” Similarly, Article 94 permits a civil compensation claim to be filed originally before the labor court judge.