Read Carefully: New mechanisms for contracting expatriates in Mozambique

employment-contract

The Official Gazette Decree 37/2016 of 31 August, which approves the Regulation of Mechanisms and Procedures for Contracting Foreign Citizens enters into force 90 days after its publication.

This regulation introduces a few innovations related to previous procedures.

In terms of application, it is clear that this regulation is not applicable for employment of foreign citizens by a Public Administration.

In the context of general terms for employment of foreign citizens, the new regulation unequivocally clarifies that private employment agencies can contract foreign citizens only for their function, and cannot contract for job placement or secondment.

The new regulation also, still in the context of general terms of employment of foreign citizens, incorporates the established in article 33 of the Labor Law, as the two diplomas state that, in exception to the contracting of managing partners and representatives, the foreign employees must have the required academic/professional qualifications, and this contract must occur only in cases that Nationals do not have the qualifications required.

In accordance with this, the regulation of employment of foreign citizens continues to be done through the (i) short-term employment contract regime, (II) quota system and (iii) work permit regime.

As for the short term employment contracts regime, the old regulation established that the employer requested authorization for a maximum of 30 days per authorization and could not exceed a maximum of 90 days a year at once.

In accordance with the new regulation, the short-term employment contract regime is subject to payment of a rate corresponding to 1 minimum wage applicable for the sector of activity that the employer is part of.

As for the quota system, the regulation clarifies that the determination of the quota available is based on the number of National employees contained in the nominal list.

For the quota system it is also a necessary requirement, under the new regulation, the presentation of certificate of ability, accompanied with certificate of equivalence issued by the entity that oversees the area of education compared to the one issued abroad or proof of professional experience.

There is also an increase in the payment rate for the quota system which has passed from three to five minimum wage applicable for the sector of activity that the employer is part of.

The National Institute of Social Security (INSS) clearance certificate which is now valid for 30 days shall be requested by the entity that oversees the area of labor in the province.

As for the work permit regime, the requirements and payment rate remained almost unchanged, and as established  in the quota system, the INSS clearance certificate is valid for 30 days and is requested by the entity that oversees the area of labor in the province.

For the specialized assistance work, the new regulation estates as a requirement the binding opinion of the entity that authorized the commencement of activities of the non-governmental organizations in cases where they intend to contract a foreign citizen as their representative.

This regulation introduces the obligation to present the professional card whenever this is required. However, the employment contract produces all the effects of a valid contract  if the implementation of the contract starts and for the time that the contract is in execution.

The new regulation also introduces the possibility of transfer of foreign employees. This transfer may take place temporarily or permanently. The transfer of foreign employee permanently out of its normal place of residence requires mutual agreement. However, the transfer of foreign employee permanently should be subject to the quota system, which means that the branch or the establishment in the province where the employee is transferred must have quota available. The requirement of availability of quota in the branch or establishment in the province where the employee is transferred is not applicable for companies who do not have representation in the destination or for activities that are nationwide or includes several provinces.

The employer must inform the foreign employees transfer in the area of labor in the province where the foreign employee was contracted, and must have copies of the process at the place where the foreign employee was transferred. To the process of transfer it is mandatory to enclose the work permit of the employee and the addendum of the employment contract.

In the context of penalties, the new regulation establishes new penalties for failure to comply with its rules.

The penalty for failure to comply with the rules to contract foreign citizens has not changed, it is punished with suspension and a fine of five to ten salaries earned by the employee in respect of the infringement. If the employer does not provide the salary of the foreign employee, the amount of the fine is determined by the salary of the same category or activity of the employee in question, according to the existing salary framework of the employer.

Under this regulation, the lack of communication of termination of the employment contract of foreign employee is treated as a general infringement and is punished with the penalty of the paragraph above.

It is also punishable with a fine of 5-10 salaries earned by the employee of which there is infringement the recruitment of Nationals to extend the quota, whenever the referred recruitment does not take place after the contracting of foreign employees.

The new regulation also establishes that the employer that terminates an employment contract with Mozambican employees must also terminate foreign employment contracts in number corresponding to the proportion of the quota from the reduction of the Mozambican employees.

Other innovation of this regulation is the possibility of revocation of work permits. the work permits can be revoked in the following situations:

a) Abuse committed by a foreign employee con substantiated in physical aggression against a national or foreign employee in the work place;

b)  Serious injury against national or foreign employee based on race, skin color or other serious discriminatory attitude prejudicial to the honor, dignity, good name and image, at the work place;

c) Serious breach of the special rights of women employees;

d) Prison sentence for the foreign employee;

The competence to initiate a process of revocation of the work permit is of the General Labour Inspectorate or its Delegation in the Province, which must notify the foreign employee in question  to contest willingly in 8 days. This notification must be signed by the foreign employee as received and, in case of refusal, it is necessary the certification of a minimum of 2 witnesses.

After the deadline to the foreign employee contest, and even if the foreign employee does not contest,  the General Labor Inspectorate must refer the matter to the Minister of Labor, Employment and Social Security, which must give its decision duly justified in a maximum of thirty days. This decision must be informed to the employee, or in case of difficulties to find the employee, must be informed through the employer.

The decision of the Minister might be subject to appeal in 5 days from the decision or  judicial appeal in 10 days from the decision. Both claim and judicial appeal have devolution effects.

Source: KPMG Auditores e Consultores

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