Mozambique’s new labour regulation for foreigners workers

Understanding:

4:52 CAT | 21 Nov 2016

Futher Africa (File photo)

On December 1st 2016, a new regulation providing the mechanisms and procedures to apply to the hiring of Foreign Citizens in Mozambique will come into effect.

This Foreign Hiring Regulation shall apply to the hiring of foreign citizens by national or foreign employers, with the exception of embassies and other diplomatic bodies, which have been excluded from this new regulation.

The private employment agencies can no longer hire foreigners on behalf of other employees (for instance, the transfer of a worker, whether occasional or not); such agencies are only allowed to hire employees for themselves (expressly under the terms of this Foreign Hiring Regulation).
Another innovation, with a great practical impact, is the need to prove that the employee has the academic requisites or professional qualifications for the job and that there are no suitably qualified local employees for that work position.

This evidence shall be presented by providing a certificate of qualifications and/or the certificate of equivalence, when the latter has been issued in a foreign country.

Furthermore, the employer will be obliged to ensure that the foreign employee, after gaining three years of work experience, transfers his knowledge to the local employee in order to engineer the foreign employee’s replacement by the local one and the employment contracts shall refer to the frequency of the foreign employee’s salary payment. This Foreign Hiring Regulation shall apply to all procedures concerning the transfer conditions of any foreign employee (these procedures shall no longer be ruled by the labor law).

Another important provision in this Foreign Hiring Regulation states that the termination of any local employee employment contract will lead to the termination of a corresponding number of foreign employee employment contracts (as a result of the reduction of Mozambican workers).

On the short-term employment contract regime the key amendments are:

• Any short-term employment contract may not exceed a period of 90 days per year (the precedent regulation stated a limit of 30 days renewed);
• Any hiring procedures imply the payment of a tax and;
• The deadline for any approval of hiring procedures (whether affirmative or negative) will be decided within 5 business days (in the precedent regulation such decision was immediately provided).

Under the new quota regime, the present hiring procedures (including the respective communication to the competent authorities) is subject to the arrival date of the foreign worker in the country, while the precedent regulation referred to the effective hiring date.

To determine the “quota”, the employer should present a staff plan including information on the respective start activity date; meaning that any employer just starting up an activity or wishing to start any activity should be registered with the Labor Ministry; otherwise it will not be possible to hire a foreign employee.

At the date on which the process is submitted to the competent authorities, the employer is obliged to present an academic qualifications certificate/the professional qualifications certificate and a certificate of equivalence (if the latter has been issued abroad). This procedure will compel the employer to prove that the foreign employee has the required qualifications for the proposed job, unlike the national employee.

The certificate proving that the employer has no debt to the State is valid for 30 days following its issuance date; after this time limit the certificate will be considered “expired” and therefore will not be accepted for the purpose.

The employer will no longer be responsible for requesting from Social Security National Institute (INSS) the certificate stating that it has no debt to INSS. This is now the responsibility of the Ministry of Labor.

This Foreign Hiring Regulation introduces some changes in what concerns the documents to be provided along with any hiring application, such as, for instance, a copy of the employer business license “alvará”. However, these changes will not have a great practical impact.

Important note: This Regulation shall not apply to the hiring of foreign citizens for the oil and gas and mining sectors. These sectors will continue to be ruled by specific legislation.

By Pedro Gonçalves Paes

• Pedro is a Partner at MC&A Law Office based in Lisbon, Maputo and Angola. He is responsible primarly for the firm’s African practice with a special focus in Corporate Law. Pedro is a graduate at the School of Law of the Catholic University of Lisbon and has a post-graduation degree in Labour Law granted at the Law School of the University of Lisbon. In 2007 obtained a Diploma in European Union Law at the Kings College, University of London