From the beginning human race have been concerned with their own safety, and that of their families and property, which is why safety is one of the main objectives guiding a state’s relationship with its citizens.
Due to high crime rates, especially in big cities, it is now common for natural or legal persons to avail themselves of security services provided by individuals or institutions licensed to provide such services, in order to protect their person, family and property
In this very brief note we propose to reflect on guarding and security services, taking as our reference the various legal provisions which apply to this matter in Mozambique.
The entry into force of the Regulation of Private Security Companies, approved by Decree No. 9/2007 of 30 April (abbreviated "RESP"), has resulted in various interpretations about the arrangements for contracting private security.
However, to avoid any confusion, there is one key question that that must be answered: What is the scope of the employment contract entered into by natural or legal persons for the guarding or security of their person or property?
To properly answer this question, we need to reflect on three issues:
- Contracts under Law No. 23/2007, of 1 August approving the Labor Law (hereinafter "LT");
- Contracts under Decree No. 40/2008, of 26 November, approving the Regulation of Domestic Work (hereinafter "RTD"); and
- Contracts under RESP
i. Contracts under the Labor Law
Article 18 of LT introduces the notion of the employment contract as an agreement whereby a person, the employee, undertakes to provide labor to another person, the employer, under the employer’s control and direction, for remuneration.
A contract between individuals or between a natural and a legal person is an employment contract if the worker is subject to legal, economic and property subordination to the employer, from which rights and duties for both parties arise.
The worker must be hired to fill a vacancy, have his own role in the employer's organization, be registered as a worker on the company’s named list of staff and enrolled in the social security system where the necessary contribu- tions shall be made.
Therefore, this type of contract covers individ- uals who provide guarding and security servic- es in an institution. The individual can only undertake this work for the entity that hired him, and there can be no profit arising from the sale of these services to third parties, at the risk of misrepresenting the type of contract as discussed below.
ii. Contracts under the Domestic Work Regulation
For guarding and security to be regulated by the RTD, the individual domestic worker must work for a household or similar, or be hired by a non-profit legal person .
According to paragraph 1 of Article 3 of the RTD, domestic work is considered to be any subordinate work, provided on a regular basis, to a household or similar, in the domicile and includes in particular: preparing meals, washing, cleaning, guarding, care of the young, elderly or sick, pet care, yard work, running errands related to the above, and other agreed activities.
Therefore, we believe that guarding and securi- ty either falls within other activities agreed by the household or exists where that service is provided by individuals to a household or similar.
iii. Contracts under RESP
Based on clause c) of paragraph 1 of Article 1 of the RESP, a Private Security Company is a private entity the corporate purpose of which is the provision of protection and private security services.
Under RESP, private security is provided by security companies which may be incorporat- ed in the name of an individual or in the form of a commercial company the purpose of which is the provision of private security services under the law, to the general public and covers: i) safety and security of persons, goods and services; ii) monitoring and control of access, and movement of persons in facilities, buildings and closed or sealed locations.
Private security service providers can use necessary methods to: i) protect people and goods using guards; ii) secure economic, social and cultural objectives using guards, patrols and electronic security systems; iii) carry out security studies; and iv) install and maintain security equipment.
Private security companies require labor, properly selected staff, which ensures the provision of services to customers. The contract between the company and the employee is an employment contract as mentioned in point 1 above. Here we are interested in the contract between the securi- ty service provider and a third party, the client, for the provision of those services.
The contract between a private security company and their client is a service provision contract because the company undertakes to provide the other party, the client, with the results of its intellectual or manual work, for compensation (Article 1154 of the Civil Code).
In the case of a company, private security services are provided to third parties with a view to making a profit, resulting from the amount due for the provision of the respective service. This type of contract is therefore for the execution of tasks that do not solely match the role of the actual, individual guard.
The individual actually carrying out the guard- ing does not have the right to the full value of the remuneration – i.e. the value of the service provided plus profit. The security service provider's employee should not be mistaken for being the third party’s employee because strictly speaking, it is the service provider who has disciplinary powers over the employee.
For these reasons and in conclusion, we draw your attention to the need to always analyze and distinguish between types of contracts for guarding and security services in order not to risk triggering a legal tsunami, and to ensure that everyone understands that it is not true that all security service contracts are regulated by the RESP.