: 10.56472/25835238/IRJEMS-V4I9P115
SMITH Maryse. "The Transfer of Skills in Light of Labor Law Requirements" International Research Journal of Economics and Management Studies, Vol. 4, No. 9, pp. 132-142, 2025. Crossref. http://doi.org/10.56472/25835238/IRJEMS-V4I9P115
Labor law (LL) is fundamentally focused on certain requirements, including employee competence. As this competence is, in principle, part of the employee's assets, it should be transferable. However, LL standards largely constitute a barrier to this ambition. Our article explores the ins and outs of this situation in the context of Benin and Togo and revolves around the main question of whether the requirements of labor law are conducive to the transfer of interpersonal skills (TIS). It seeks to determine the importance given to TIS in LL in light of the relevant requirements, while highlighting the obstacles posed by LL to TIS and the need for a paradigm shift.
[1] David AFFODJOU, Beninese Labor Law,1stedition, COPEF, 2019.
[2] Dago YABRE, Togolese Labor Law, 1st edition, 2008.
[3] Elza PESKINE and Cyrill WOLMARK, Labor Law 2024, Dalloz,17thedition, 2023.
[4] Jean PELISSIER, Gilles AUZERO, and Emmanuel DOCKES, Labor Law,25thedition, Dalloz 2010.
[5] ILO, The Transferability of Skills, 298thsession of the Governing Body, Geneva, March 2007.
[6] ILO,112thsession of the ILC 2024, Labor Administration in a Changing World of Work.
[7] Eric LOUBET, Trust and Employment Contracts, Master's Thesis, Panthéon-Assas Paris 2 University, 2009.
[8] Togolese Labor Code of June 2021
[9] Josette YUNG HING, The Legal Aspects of Professional Qualification, CNRS edition, 1986.
[10] Abdelwahab AIT RAZOUK, HRM and skills transfer: impact on performance, Presentation at the AGRH conference, September 2005.
[11] Michèle LATEURTRE-ZINOUN, Can experience and knowledge be transferred?,
[12] Communication No. 122, trainer training workshop, 2010.
[13] Igor VOLKOK, Knowledge Transfer in Multinational Companies: Effectiveness and Influence of Contextual Factors, Thesis, University of Montreal, 2011.
[14] Opinion of the Economic, Social, and Environmental Council of Morocco: Promoting the transfer of skills in the workplace, Self-referral No. 62/2022
[15] BAUGARD (D.), "Social public order," Archives de philosophie du droit, 2015/1, Volume 58, Dalloz editions.
[16] Gérard CORNU, Legal Vocabulary, Association Henri Capitant.
[17] Stéphane JONGEN, "Employee share ownership, its main forms," University of Liège, 2006.
[18] Xavier HOLLANDTS, Zied GUEDRI, "Employee shareholders and company performance," Revue française de gestion, 2008/3, no. 183, Lavoisier, p. 36
[19] Baudry DE VAUX MARIE, Elise CHLEQ, Elisabeth DESHAYES, Cathérine GROLIERE, Françoise TISSOT, "Patrick GUILLOUX, Individual training leave: genesis and evolution of a right" (1966-1996), Paris, L'Harmattan, 1996
[20] PELISSIER Jean, AUZERO Gilles and DOCKES Emmanuel, Labor Law,25thedition, Dalloz 2010, p. 284.
[21] Françoise FAVENNEC-HERY, "The individual right to training," Dr. soc., 2004.
[22] Chrystelle LE CŒUR, The Concept of Company Interest in Labor Law, Presses Universitaires d’Aix-Marseille, No. 05/2015.
[23] Robert DIEZ and Louise SARTON, Transferring Skills: How to Avoid Losing Strategic Skills, Editions Eyrolles, 2012
[24] Antoine JEAMMAUD, Martine LE FRIANT and Arnaud LYON-CAEN, "The sequencing of labor relations," Dalloz, 1998
[25] Jean-Marie PERETTI, Human Resource Management,23rdedition, Vuibert, 2020.
[26] Huchet MARC-OLIVIER, "The training penalty clause," Revue juridique de l'Ouest, 2000. Dirk BAUGARD, "Social Public Order," Archives de philosophie du droit, Volume 58, Dalloz, 2015.
[27] Marie CARTIER and Stéphane BEAUD, "From job insecurity to work insecurity. The new wage condition," La Découverte, 2008.
[28] Opinion of the Economic, Social, and Environmental Council of Morocco, Self-referral No. 62/2022: Promoting skills transfer in the workplace, p. 9. Available at www.cese.ma.
[29] LE BOTERF (G.), Building individual and collective skills, Editions Eyrolles, 2010, cited by Robert DIEZ and Laurence SARTON, Transferring skills: how to avoid losing strategic skills, Editions Eyrolles, 2012, p.47. 4 ZARIFIAN (P.), Objectif compétence (Skills Objective), Editions Liaisons, 1999; Le Modèle de la compétence, trajectoire historique, enjeux actuels et propositions (The Skills Model: Historical Trajectory, Current Issues, and Proposals), Editions Liaisons, 2004.
[30] Firstly, an attitude of taking initiative and responsibility in situations for which the individual is responsible; secondly, practical knowledge that reflects an understanding of these situations and draws on experience and knowledge acquired during training; finally, the existence, development, consolidation, and mobilization of networks of actors who contribute directly to the management of situations or provide support.
[31] International Labor Organization General Conference: R195 - Recommendation (No. 195) on human resources development, 2004.
[32] IKujiro Nonaka and Hirotaka Takeuchi, The Knowledge-Creating Company, Oxford University Press, 1995. 8 Tacit skills, unlike explicit skills, are generally linked to the company or organization. They are integrated into individuals in the form of practical know-how, modes of action, and personal intuitions.
[33] Explicit skills are formalizable skills (knowledge, know-how) that can be transcribed in books, defined through procedures, operating methods, manufacturing ranges, explained in maintenance notices, safety manuals, manufacturing standards, and integrated into software.
[34] Pulse of the Profession, "Capturing the Value of Project Management Through Knowledge Transfer," March 2015, Project Management Institute.
[35] ILO, Transferability of Skills, 298(e)session, March 2007, p.1.
[36] Opinion of the Economic, Social and Environmental Council: promoting skills transfer in the workplace, Selfreferral No. 62/2022.
[37] The retirement of the most experienced workers, combined with longer periods of study, could create temporary shortages of skilled labor.
[38] Nowadays, maintaining and developing skills are key factors in the economic success of businesses.
[39] There is a kind of competition for positions between the most experienced employees and new hires. As a result, older employees are not necessarily motivated to transfer their experience to younger employees.
[40] VOLKOV (I), Knowledge transfer in multinational companies: effectiveness and influence of contextual factors, Thesis, University of Montreal, 2011.
[41] ILO, The transferability of skills, 298thsession, March 2007, p.1.
[42] The most recent review of these instruments can be found in: ILO, Human Resource Development: Vocational Guidance and Training, Paid Educational Leave, ILC.78/III(4B), 1991 (1991 Survey). Recommendation No. 150, which was the subject of the 1991 Survey, has now been replaced by Recommendation (No. 195) on Human Resources Development, 2004.
[43] This 1975 convention, which came into force on July 19, 1977, concerns the role of vocational guidance and training in human resources development. Information consulted on 04/30/2024 at 9:13 a.m. on www.normlex.ilo.org.
[44] This recommendation was adopted on June 17, 2004, at the92ndsession of the ILC, and concerns lifelong education and training in the context of human resources development. Information consulted on 04/30/2024 at 9:18 a.m. on www.normlex.ilo.org.
[45] Recommendation (No. 208) on Quality Apprenticeships, 2023. See also, Andrew Stewart et al., The Regulation Of Internships: A Comparative Study, ILO Working Paper No. 240, 2018.
[46] ILO, Report of the112thSession of the ILC: Labor Administration in a Changing World of Work, February 2024. 23 This convention was adopted in 1978 and entered into force on October 11, 1980. It concerns labor administration: role, functions, and organization.
[47] PESKINE (E.) and WOLMARK (C.), Labor Law 2024, Dalloz 2023, p. 67.
[48] See Article 52(2) of Law No. 2021-012 of June 18, 2021, on the Labor Code in Togo.
[49] The Interprofessional Collective Agreement of Togo currently in force dates from December 20, 2011, and was signed between the National Employers' Council and six (06) trade union confederations, namely the National Confederation of Workers of Togo (CNTT), the Trade Union Confederation of Workers of Togo (CSTT), the General Confederation of Executives of Togo (CGCT), the National Union of Independent Trade Unions of Togo (UNSIT), the General Union of Free Trade Unions (UGSL), and the Group of Autonomous Trade Unions (GSA). 27 The collective agreement is a hybrid act in that it is first concluded as a contract between two parties, one representing the interests of employees and the other representing those of employers. It then takes on a normative effect. Like a legal or regulatory standard, it governs the situation of persons who did not take part in its drafting. In other words, it applies to all employees of employers who have signed it, either directly or indirectly through the employers' organization of which they are members. The agreement also applies to employees who are not members of the employee union(s) that signed the agreement. See Elsa PESKINE and Cyril WOLFMARK, Droit du travail 2024, op. cit., p. 66.
[50] PESKINE (E.) and WOLMARK (C.), Labor Law 2024, Dalloz 2023, op. cit., p. 66.
[51] The employment relationship is a legal concept widely used to describe the relationship between a person known as an "employee," often also referred to as a "worker," and an "employer" for whom the "employee" performs work under defined conditions in exchange for remuneration.
[52] Affectio societatis is a Latin expression that refers to the intention that should motivate partners to collaborate on an equal footing. It implies not only a spirit of collaboration, but also the right of each partner to exercise control over the actions of those responsible for administering the company.
[53] PERETTI (J-M), Human Resource Management,23rdedition, Vuibert, 2020, p.74.
[54] DIEZ (R.) and SARTON (L.), Transferring Skills: How to Avoid Losing Strategic Skills, Editions Eyrolles, 2012, p.81.
[55] JEAMMAUD (A.), LE FRIANT (M.) and LYON-CAEN (A.), The scheduling of labor relations, Dalloz, 1998, p. 359.
[56] LE CŒUR (C.), The concept of company interests in labor law, Presses Universitaires d’Aix-Marseille, no. 05/2015.
[57] On this issue, see KCHIRID (A.) and TEMNATI (R.), Management des entreprises, Ellipses, "Hors collection," 2021, p. 174.
[58] Liège Labor Court, October 10, 1973, R.D.S., 1974, No. 277.
[59] Brussels Labor Court, November 23, 1976, Journal des Tribunaux du Travail 1977, No. 162.
[60] Brussels Labor Court, December 6, 1976, Journal des Tribunaux du Travail 1978, no. 111.
[61] Brussels Labor Court, 4thChamber, December 10, 1980, Journal des Tribunaux du Travail 1982, No. 190. 40 On this issue, see KCHIRID (A.) and TEMNATI (R.), Management des entreprises, Ellipses, "Hors collection," 2021, p. 174.
[62] PESKINE (E.) and WOLMARK (C.), Labor Law 2024, Dalloz,17thedition, 2023, p. 209.
[63] Bull. civ. V, no. 278; GADT, no. 50.
[64] The essential elements of an employment contract are remuneration, qualifications, place of work, and working hours.
[65] They consist of remuneration for the qualification, the place of work, and working hours.
[66] Soc. November 14, 2007, no. 06-43.762.
[67] Prior to this ruling, when a significant change in the employment relationship occurred, the fact that the employee performed their work under the new conditions without protest allowed the judge to conclude that the employee had consented to the change. Since the Raquin ruling, the employee's acceptance can no longer be inferred from their continued work. The employee either expressly accepts the change or does not accept it.
[68] PEREZ (C.) et al., "Modes d'ajustement par le travail en temps de crise : des relations professionnelles sous tension" (Ways of adjusting through work in times of crisis: professional relations under strain), La Revue de l'Ires, 2015/1 (No. 84), p. 81; PORTAP (J.), "Le droit du travail en changement" (Labor law in flux), Essay on interpretations, Work and Employment, 2019/2 (No. 158). 115.
[69] Cass. soc., September 21, 2017, no. 15-29.238. 49 Cass. soc., October 22, 2014, no. 13-20.306.
[70] BOSSU (B), Les indispensables du droit du travail (The essentials of labor law), Ellipses, 2017, p. 75. 51 GUYONVARCH (M.), "The trivialization of dismissal in professional careers. Destabilization or recomposition of identities at work?", Terrains & travaux, vol. 14, no. 1, 2008, p. 149.
[71] Soc. January 31, 1979, Bull. civ., V, 306, D. 1979.
[72] Soc. March 9, 1999, Dr. Soc. 1999. 527, obs. A. Mazeaud; D. 1999., no. 365. Obs. Ch. Radé; RJS 4/99, no. 505.
[73] Soc. July 5, 2005, Bull. civ. V, no. 232; RJS 2005, no. 971.
[74] The relationship between the employee and the temporary employment agency is an employment contract. The relationship between the employee and the user company is a contract for services, and the relationship between the temporary employment agency and the user company is a contract for the provision of services.
[75] SUPIOT (A.), op. cit., p. 172.
[76] Cass. soc., September 21, 2016, No. 15-20.789.
[77] See the provisions of Article L6315-1 of the Labor Code.
[78] Cass. Soc. May 3, 2018, no. 16-26796
[79] MORVAN (P.), Labor Law: Collective Labor Relations,9thed. p. 219.
[80] Civ. 2, Dec. 18, 1996: Bull.ci., II, no. 306.
[81] PELISSIER (J.), AUZERO (G.) and DOCKES (E.), Labor Law,25thedition, Dalloz 2010, p. 284. 67 See Article R. 6322-10 of the French Labor Code. Ibid., p. 290. Ibid.
[82] PELISSIER (J.), AUZERO (G.) and DOCKES (E.), Labor Law, op. cit., p. 285.
[83] Soc. May 10, 2001: Bull.civ. V, no. 159, Dr. soc. 2001. 888, obs. A. Mazeaud (an employee who undertakes training with a company that is a competitor of their employer is in breach of this obligation of loyalty). 72 See Article L. 6331-9 of the Labor Code.
[84] CORNU (G.), Legal Vocabulary, Association Henri Capitant.
[85] JONGEN (S.), "Employee share ownership, its main forms," University of Liège, 2006, p. 230. Ibid.
[86] HOLLANDTS (X.), GUEDRI (Z.), "Employee shareholders and company performance," Revue française de gestion, 2008/3, no. 183, Lavoisier, p. 36.
[87] AFFODJOU (D.), Beninese labor law,1stedition, COPEF, 2019, p. 54.
[88] AFFODJOU (D), Le droit du travail béninois (Beninese labor law), op. cit., p. 239.
[89] As the point of contact between the state legal order and the "social order," public order guarantees the realization of society's "idea of law" by imposing discipline in social and legal life. It thus appears at first glance to be an order that limits freedoms, particularly the freedom to create law. It is governed by the provisions of Article 6 of the Civil Code and specified in the context of contracts by the provisions of Article 1102 of the same code.
[90] See, for example, P. Lokiec, Droit du travail, volume 1, PUF, no. 231, p. 217: "Public policy has a unique meaning in labor law, since in the event of a conflict of norms, preference is in principle given not to the highest in the hierarchy of norms, but to the most advantageous for the employee. See E. Peskine and C. Wolmark, Labor Law, Dalloz "Hypercours," 2015, no. 105, p. 65: "Higher-level rules that can be set aside by more favorable lowerlevel rules are referred to as 'social public policy' rules." See also G. Auzero and E. Dockès, Labor Law, Dalloz "Précis," 2015, No. 1319, p. 1408.
[91] Force majeure is a defense that allows a debtor to be exempt from liability when an event prevents them from fulfilling their obligation. Three cumulative criteria are necessary to characterize force majeure: the event must be unforeseeable, irresistible, and beyond the debtor's control.
[92] An example of this is an economic upheaval that causes difficulties for the company and forces it to lay off staff or place them on technical leave, as provided for in Article 66 of the Togo Labor Code.
[93] Simple misconduct may be established for an act or series of acts attributable to the employee that constitute a breach of their professional obligations, particularly those arising from their employment contract or collective bargaining agreements.
[94] Serious misconduct, according to the provisions of Article 77-a of the Togolese Labor Code, is misconduct whose seriousness makes it impossible to keep the employee in the company or establishment, even during the notice period.
[95] Gross misconduct is misconduct committed by the employee with the intention of harming the employer. In this case, the intention to cause harm will be characterized by objective criteria that can be assessed in relation to the purpose of the company.
Skill Transfer, Labor Law Requirements, Workforce Development, Employment Regulations, Employee Training And Development, Legal Compliance In Skills Training, Workplace Rights And Obligations.