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The employment relationship
Country specific laws
What laws and regulations govern the employment relationship?
The Labour Law (23/2007) is the main statute governing all aspects of the employment relationship. There is also other derivative legislation on various lateral aspects of the employment relationship (eg, the legal framework on domestic work).
The hiring of foreign employees is also subject to specific legislation, including:
- the General Hiring of Expats Regulation (Decree 55/2008);
- the Regulation on the Hiring of Expats in the Petroleum and Mining Sector (Decree 63/2011); and
- the Immigration Law Regulation (Decree 108/2014).
Who do these cover, including categories of worker?
The Labour Law applies to all categories of worker. In effect, it covers employment relationships between both national and foreign employers and employees in all fields of activity which carry out their activities in Mozambique, provided that there is a relationship of subordination between the employer and employee. The Labour Law excludes from its scope of application public servants and employees operating in local government.
Are there specific rules regarding employee/contractor classification?
Yes. The Labour Law defines an ‘employment contract’ as an “agreement whereby one person, the employee, undertakes to perform his/her work for another person, the employer, under the authority and direction of the employer and in return for remuneration”.
Under Article 1154 of the Civil Code, a ‘services agreement’ is an “agreement whereby one of the parties undertakes to make available the result of his/her intellectual or manual work, with or without pay”. However, the Labour Law also establishes rules regarding contracts for the provision of services that put the service provider in a situation of economic subordination to the employer, which are considered equivalent to employment contracts.
Must an employment contract be in writing?
Yes, except for fixed-term employment contracts where the work to be carried out under the contract will not exceed 90 days.
Are any terms implied into employment contracts?
Under the Labour Law, fixed-term employment contracts may be entered into only for the performance of temporary tasks and for as long as is necessary for this purpose. The law states that a fixed-term employment contract may be executed:
- to replace an employee who is temporarily unable or unavailable to work;
- for tasks intended to address exceptional or abnormal increases in production, as well as seasonal activities;
- for tasks that are not part of the employer’s permanent needs; and
- to carry out works, projects or other defined temporary activities, including civil construction, public works and industrial repairs on a construction contract basis.
Are mandatory arbitration/dispute resolution agreements enforceable?
According to the Labour Law, collective disputes arising from the establishment or revision of collective labour regulation instruments may be resolved through alternative extrajudicial methods (eg, conciliation, mediation or arbitration). If an alternative extrajudicial method is adopted, Law 11/99 and Decree 50/2009 apply. Article 182 of the Labour Law provides that the rules on the extrajudicial resolution of collective labour disputes apply (with the necessary adjustments) to disputes arising from individual labour relationships. However, according to a Constitutional Court decision, the extrajudicial resolution of employment disputes through mediation or arbitration is always voluntary.
How can employers make changes to existing employment agreements?
In general, an employment relationship may be modified by agreement between the parties or, in certain cases specified in the law, by a unilateral decision of the employer. Where an employment contract is modified pursuant to a unilateral decision of the employer, the relevant trade union and labour administration office must be notified in advance. In addition, employers may issue internal regulations to deal with the organisation of work and disciplinary issues. In this regard, the Labour Law imposes mandatory deadlines and information and communication duties on employers.
Is a distinction drawn between local and foreign workers?
According to the Labour Law, foreign citizens performing occupational activities in Mozambique have the right to equal treatment and equal opportunity compared to Mozambican workers.
However, the hiring of foreign employees must be communicated to or authorised by the Ministry of Labour, Employment and Social Security and is subject to strict rules.
In general, employers should avoid hiring foreign employees as far as possible. If they need to hire a foreign employee, the following procedures must be observed.
Under the communications regime, the hiring of foreign employees is not subject to prior authorisation or approval from the ministry, but must be communicated or notified to the ministry. The communications regime applies to:
- quotas – the employer can hire a fixed percentage of foreign employees depending on the total number of national employees in its service in the preceding calendar year, as follows:
- where the company has more than 100 employees, 5% of the total number of employees;
- where the company has between 10 and 100 employees, 8% of the total number of employees; and
- where the company has up to 10 employees, 10% of the total number of employees;
- investment projects – as a rule, a company carrying out a foreign investment project approved by the Mozambican Investment Promotion Centre may be granted the right to employ more expatriate employees than it would be entitled to under the general quota regime; and
- short-term assignments – foreign employees can be employed on short-term assignments, but these generally cannot exceed 30 days per year, with a maximum extension of 90 days.
Work authorisation regime
Where the employer intends to hire additional expatriates beyond those allowed under one of the above options, the authorisation regime applies. The employer must provide evidence that the prospective expatriate employees possess the required academic and professional qualifications, and that there are no (or not enough) Mozambicans with those qualifications.
Specific rules apply to the mining and petroleum sectors.