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Which issues would you most highlight to someone new to your country?
Mozambique has emerged as one of the world's fastest-growing economies, with foreign investors showing interest in its untapped oil and gas reserves. Coal and titanium are growing sources of revenue. Mozambique's ability to attract investment in natural resources projects is expected to increase significantly in the coming years.
From an employment perspective, the local labour authorities are becoming particularly active in enforcing the complex administrative and reporting duties established by national employment laws, and immigration requirements are complex and strict.
What do you consider unique to those doing business in your country?
Companies have the opportunity to work in new fields of business and provide educational training to employees.
Is there any general advice you would give in the employment area?
Companies operating in Mozambique should ensure that they comply with the mandatory rules set out in the Labour Law, particularly in regard to foreign employees.
Emerging issues/hot topics/proposals for reform
Are there any noteworthy proposals for reform in your jurisdiction?
The visa regulations have been reformed.
What are the emerging trends in employment law in your jurisdiction?
New employment regulations now apply to the mining and petroleum sectors.
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.
What are the requirements relating to advertising positions?
All jobs must be advertised in non-discriminatory terms. Ads should set out the basic terms and conditions for recruitment and hiring, including the type of employment contract, the workplace and the work schedule (ie, full time or part time).
What can employers do with regard to background checks and inquiries in relation to the following:
(a) Criminal records?
Under the Labour Law, when appointing an employee or during the course of an employment agreement, employers cannot require the employee to provide information about his or her private life (including his or her criminal record), except where the law or particular nature of the job so demands. If this is the case, the employer must provide the employee with the reasons for this in writing beforehand.
(b) Medical history?
Under the Labour Law, employers may require job applicants or employees to undergo or submit to medical tests or examinations for the purposes of admission or performance of an employment contract in order to confirm the individual’s fitness for work. However, the medical practitioner responsible for the medical tests or examinations cannot provide information to the employer other than that relating to the individual’s fitness or unfitness to work.
Under Article 53 of Law 19/2014, employees cannot be tested for HIV and AIDS and related medical history, unless the employee freely and expressly consents.
(c) Drug screening?
Under the Labour Law, employers may require job applicants or employees to undergo or submit tomedical tests or examinations for the purposes of admission or for the performance of an employment contract in order to confirm the individual’s fitness for work. However, the medical practitioner responsible for the medical tests or examinations cannot provide information to the employer other than that relating to the individual’s fitness or unfitness to work.
Under Article 53 of Law 19/2014, employees cannot be tested for HIV and AIDS and related medical history, unless the employee freely and expressly consents.
(d) Credit checks?
Under the Labour Law, when appointing an employee or during the course of an employment agreement, employers cannot require the employee to provide information about his or her private life – including his or her credit status – except where, by virtue of the law or the job, the particular nature of the job so demands, and provided that the reasons for the requirement are stated in writing beforehand.
(e) Immigration status?
Employers must confirm the nationality and immigration status of all employees.
(f) Social media?
According to the Labour Law, employers must respect employees’ right to privacy – in particular, their right to keep their personal lives private. The right to privacy relates to access to and the dissemination of matters relating to employees’ private lives and implies that employees cannot be discriminated against by the employer based on their private lives (including personal information on social networks).
Other background checks and enquiries must be based on the employer’s need to confirm an employee’s suitability for the job. They are permitted only where the law or particular nature of the job so demands, and provided that the reasons for the checks and enquiries are stated in writing beforehand.
Wages and working time
Is there a national minimum wage and, if so, what is it?
The national minimum wage is set according to the economic sector. The following national minimum wages were defined by the government for 2015:
- Ministerial Diploma 68/2015 (Sector I - Agriculture, Forestry, Hunting and Livestock) – MT3,183;
- Ministerial Diploma 69/2015 (Sector II – Fisheries) – MT3,500 for workers employed in industrial and semi-industrial maritime fisheries and MT3,000 for workers employed in kapenta fisheries;
- Ministerial Diploma 70/2015 (Sector III - Minerals Extractive Industry) – MT5,643.34 for workers employed by large companies, MT4,539.05 for quarry and sandpit workers and MT4,176 for saltpan workers;
- Ministerial Diploma 71/2015 (Sector IV - Transformative Industry) – MT4,815, except for workers employed in the baking industry, whose minimum wage is MT3,790;
- Ministerial Diploma 72/2015 (Sector V - Water, Gas and Electrical Production and Distribution) – MT5,402 for workers employed by large companies and MT4,851 for workers employed by small and medium-sized companies;
- Ministerial Diploma 73/2015 (Sector VI - Construction) – MT4,483;
- Ministerial Diploma 74/2015 (Sector VII - Non-Financial Services) – MT4,676; and
- Ministerial Diploma 75/2015 (Sector VIII - Financial Services) – MT8,050 for workers employed by banks and insurers and MT7,800 for workers employed in micro-finance, micro-insurance or other finance ancillary or intermediary entities).
Are there restrictions on working hours?
Among other international labour organisation conventions, Mozambique has ratified the Hours of Work (Industry) Convention (1) and the Weekly Rest (Industry) Convention (14). Accordingly, the Labour Law provides that normal working hours cannot exceed eight hours per day and 48 hours per week.
The maximum number of hours that an employee works per day may be increased to nine hours if the employer grants him or her an additional half day’s rest per week.
Hours and overtime
What are the requirements for meal and rest breaks?
Under the Labour Law, employees are entitled to a break of between 30 minutes and two hours per working day, without prejudice to services provided under a shift regime.
How should overtime be calculated?
'Overtime’ is defined as work performed beyond the normal daily working period. However, a distinction is made between overtime rendered during a working day (extra hours) and overtime rendered during mandatory or complementary rest periods or during holidays (exceptional hours). The main difference is that while extra hours are limited to a certain number per week, trimester and year, and must be compensated by payment of an additional 50% per hour up to 8:00pm and an additional 100% after 8:00pm, exceptional hours must be compensated by payment of both an additional 100% per hour and a day’s rest within the following three days.
What exemptions are there from overtime?
All employees are eligible for overtime. An employee may be partially excluded from overtime if he or she falls under the fixed work schedule exemption. This exemption applies only to employees:
- holding managerial, inspection or confidential positions; or
- performing functions that, by their own nature, justify the adoption of the fixed work schedule exemption.
Is there a minimum paid holiday entitlement?
Employees are entitled to paid holiday as follows:
- one day of holiday for each month of effective service during the first year of employment;
- two days of holiday for each full month of effective service during the second year; and
- 30 days of holiday for each full year of effective service from the third year onwards.
What are the rules applicable to final pay and deductions from wages?
Remuneration comprises basic salary and any periodic, direct or indirect payments made in cash or in kind by the employer. Salaries in Mozambique are subject to two legal deductions: income-related personal income tax (IRPS) and social security contributions.
Employers must deduct IRPS from salaries and other work-related remuneration. The withholding amounts are calculated on the basis of the IRPS progressive rates set out in withholding rate tables issued by the government.
The mandatory social security contribution corresponds to 7% of the employee’s net salary, with 4% due and payable by the employer and 3% by the employee. The portion due by the employee is deducted from his or her salary by the employer and then the full 7% is sent to the social security authorities.
What payroll and payment records must be maintained?
Employers must keep records of the payroll list or the relevant payslips. Tax and social security payment forms must also be kept on file.
Discrimination, harassment & family leave
What is the position in relation to:
The minimum working age is 15 years. The Labour Law provides that an employer may enter into an employment relationship with a 15-year-old employee, provided that authorisation is obtained from his or her legal guardian. However, according to the Labour Law, the Mozambican Council of Ministers can issue a specific regulation establishing the nature and conditions of work that may be performed, in exceptional circumstances, by minors between 12 and 15 years of age. To date, no such regulation has been issued by the council.
Mozambican law sets out the general principle of equality of rights between employees regardless of their race, and therefore prohibits discrimination based on race.
Employers must promote the adoption of appropriate measures that give employees with disabilities or chronic illnesses the same rights and duties as other employees with respect to access to employment, vocational training and promotion, as well as suitable working conditions to enable them to perform socially useful activities, taking into account the specific circumstances of their impaired working capacity.
Mozambican law sets out the general principle of equality of rights between employees regardless of their gender, and therefore prohibits discrimination based on gender. However, according to the Labour Law, female employees benefit from the following additional protections:
- Employers cannot require female employees to perform work that is harmful to their health or their reproductive function.
- Employees who carry out acts that undermine the dignity of a female employee will be subject to disciplinary proceedings.
- Employers cannot dismiss, punish or otherwise prejudice a female employee for reasons of alleged discrimination or exclusion.
- Female employees may take up to 30 days’ leave per year in order to care for their children in the case of accident or illness and will not lose any rights, except in regard to remuneration.
(e) Sexual orientation?
Mozambican law sets out the general principle of equality of rights between employees regardless of sexual orientation and therefore prohibits discrimination based on sexual orientation.
Mozambican law sets out the general principle of equality of rights between employees regardless of religion and therefore prohibits discrimination based on religion.
Mozambican law sets out the general principle of equality of rights between employees regardless of medical conditions and therefore prohibits discrimination based on medical conditions.
However, according to the Labour Law, measures that benefit certain disadvantaged groups (ie, by reason of reduced capacity to work, disability or chronic illness) in order to guarantee their equal rights under the Labour Law are not considered discriminatory.
Under the Labour Law and Law 19/2014, employers:
- must set up education and awareness programmes on HIV/AIDS;
- cannot conduct HIV tests in the workplace (except when requested by the employee); and
- cannot discriminate against HIV-positive employees in the workplace.
Family and medical leave
What is the position in relation to family and medical leave?
Regarding medical leave, in accordance with the Labour Law, employers must grant sick leave for an uninterrupted period of up to 15 days, or five non-continuous days in one quarter, after which they can refer the employee to a health board in order to determine his or her capacity to work. In addition, social security regulations establish that employees are entitled to up to 365 continuous days of sick pay under the social security system in case of a non-occupational illness or an accident. Therefore, any employee who falls ill or suffers an accident unrelated to work can receive sick pay under the social security system and the employer need not pay his or her salary during this absence.
In regard to family leave, under Article 104 of the Labour Law, employees are entitled to leave in order to stay with their own children or other minors under their care who have been hospitalised. However, the employer need not pay the employee’s salary during this absence. Employees are entitled to sick pay during family leave absences under the social security system.
What is the position in relation to harassment?
Under the Labour Law, harassment – including sexual harassment – which interferes with the stability of employment or the career progression of an employee will be treated as a disciplinary offence, whether it is committed within or outside of the workplace. In addition, if harassment is committed by the employer or its agent, the offended employee will be entitled to compensation in an amount of 20 times the minimum wage, without prejudice to any judicial cause of action under the applicable law.
What is the position in relation to whistleblowing?
The law makes no specific provision in regard to whistleblowing.
Privacy in the workplace
Privacy and monitoring
What are employees’ rights with regard to privacy and monitoring?
The Labour Law requires employers to respect the personal rights of employees – in particular, the right to keep their personal lives private. The right to privacy relates to access to and dissemination of matters relating to the private and personal lives of employees (eg, their family lives, personal relationships, sex lives, health and political and religious convictions).
In addition, employers cannot use remote surveillance in the workplace in order to monitor employees’ occupational performance. However, this rule does not cover situations intended to protect persons and property, or when the surveillance is used as an integrated part of the productive process – in which case the employer must inform the employees of the existence and purpose of the surveillance.
Moreover, employees’ personal correspondence through any means of private communication (in particular, letters and emails) cannot be monitored. However, employers may establish rules and limits on the use of information technology in the company (eg, email and internet access) or completely ban the personal use of such tools.
To what extent can employers regulate off-duty conduct?
Employers may regulate off-duty conduct to the extent that it is detrimental to the employment relationship.
Are there rules protecting social media passwords in the employment context and/or on employer monitoring of employee social media accounts?
No rules specifically address the protection of employees’ social media passwords. Nevertheless, the general principles under which employees’ rights are established (ie, the right to privacy, dignity and integrity) prohibit employers from intruding into personal social media accounts.
Trade secrets and restrictive covenants
Who owns IP rights created by employees during the course of their employment?
The law provides for a coexisting set of rights over intellectual creations protected by copyright:
- moral rights – the right of paternity and the right to be mentioned on the work; and
- economic rights – the right to market and exploit a work and use it in any way.
In relation to copyright, authors are considered to be the first owners of economic and moral rights in their works, regardless of whether they created them under an employment contract. Notwithstanding this, the economic rights in the work will be deemed transferred to the employer to the extent that this is justified by the normal activities of the employer at the time of creation of the work. In other words, if a work does not relate to the employer’s activity (eg, a musical work is created by an oil company employee), the economic rights of the work will not be considered transferred to the employer. However, employers and employees may enter into an agreement whereby the economic rights of all the works created by the employee during the employment relationship will be owned by the employer.
However, copyright belongs to the employer only to the extent that it does not comprise moral rights, as these will remain with the relevant authors (ie, employees).
What types of restrictive covenants are recognised and enforceable?
The Labour Law includes no rules on restrictive covenants – in particular, non-compete agreements. As the Constitution sets out that each citizen has the right to choose his or her job freely, restrictive covenants are unenforceable.
Are there any special rules on non-competes for particular classes of employee?
Discipline and grievance procedures
Are there specific laws on the procedures employers must follow with regard to discipline and grievance procedures?
Disciplinary procedures are subject to the mandatory provisions set out in the Labour Law. No specific legal provisions regarding grievance procedures exist. These may be established through collective bargaining agreements.
Unions and layoffs
Is your country (or a particular area) known to be heavily unionised?
Under the Constitution, employees can organise and belong to organisations which seek to defend and promote their professional and labour-related rights without being discriminated against or otherwise requiring the authorisation of any entity.
The incorporation, organisation, function, termination and activities of trade union organisations are mainly governed by the Constitution, the Labour Law and the law on associations approved by Law 8/91.
Trade unions have significant powers in Mozambique. In addition, Mozambique experienced an economic and investment boost which gave rise increased demands with regard to the protection of workers’ rights. As a result, the presence and powers of union organisations are increasing.
The vast majority of unions are structured at a trade union level by field of activity. There are more than 20 unions in Mozambique, grouped into two main branches:
- the Organisation of Mozambican Workers; and
- the Confederation of Free and Independent Trade Unions.
What are the rules on trade union recognition?
In order to establish a trade union, a group of individuals seeking to create an employee organisation must convene a meeting with the specific purpose of deciding on its creation and approving its articles of association. The founding general meeting must be convened with the maximum possible publicity through all media.
As a rule, the articles of association must contain:
- the name, head office and sector and geographical scope of the organisation, and its purpose and duration, if applicable;
- members’ rights and duties;
- any election and appointment rights;
- the disciplinary regime;
- the composition, method of election and function of its organs, and the length of terms of office;
- rules on financial, budgetary and accounting administration;
- the procedure for amending the articles of association; and
- the procedure for the exhibition, dissolution and liquidation of assets.
Trade unions are granted legal personality on registration of the articles of association with the Ministry of Labour. After submission of the application for registration, and once the applicable requirements has been met, the Ministry of Labour has 45 days to register the organisation in the appropriate book. After registration, the Ministry of Labour will order publication of the articles of association in the Official Gazette.
What are the rules on collective bargaining?
As a rule, only employers and employees – through their respective organisations or associations – may legally negotiate and enter into collective labour regulation instruments.
The parties are subject to the general principles of good faith during the negotiation of labour regulation instruments. In particular, each party must provide the other with all necessary information for the negotiations.
The parties are further subject to confidentiality obligations. Without prejudice, trade unions can disclose information on the progress of negotiations to their members and higher-level union organisations.
The main steps of the collective bargaining procedure are as follows:
- The collective bargaining procedure begins with the submission of a written proposal for the adoption (or revision) of a collective labour regulation instrument prepared by either of the relevant parties.
- The proposal must expressly indicate which matters will be negotiated, and must always consider the company’s economic and financial situation and the reference indicators of the company’s sector of activity.
- A copy of the relevant proposal must be submitted to the Ministry of Labour, alongside any supporting information.
- The party that receives the proposal has 30 days to respond in writing. This period may be extended by agreement between the parties.
- The response must expressly mention the matters which have been accepted and include a counterproposal in respect those which have not been accepted. As a rule, counterproposals must be based on the company’s economic and financial situation and the reference indicators of the company’s sector of activity. A copy of the proposal and the reasoning must be submitted to the Ministry of Labour.
- If the responding party fails to reply within 30 days, either party may seek mediation under the terms established in the Labour Law.
- Direct negotiations will commence within 10 days of receipt of the response, unless a different period has been agreed in writing between the parties. A schedule of the negotiation process and the rules governing the same must be defined and approved. At every negotiation meeting, the parties must agree on and faithfully record any conclusions of relevant matters.
- An executed version of the relevant collective labour regulation instrument must be submitted to the Ministry of Labour within 20 days of its execution, for deposit and verification of legal compliance. The relevant instrument is deemed accepted and becomes effective if the Ministry of Labour issues no written statement to the contrary within 15 days of the deposit.
Are employers required to give notice of termination?
Pursuant to the Labour Law, an employment contract may cease only by:
- mutual agreement;
- termination by the employee, with or without cause; or
- termination with cause by the employer.
Therefore, there is no at-will termination by serving an employee with a notice period.
However, in relation to a fixed-term employment contract, the employer should serve the employee with prior written notice before the contract expires, under penalty of the same being automatically renewed for an equal period or converted into an indefinite employment contract. Prior notice of termination is also required in the context of dismissals for technological, structural or market-related reasons that are essential to the competiveness, economic restructuring or administrative or productive reorganisation of the company (redundancy procedures).
What are the rules that govern redundancy procedures?
Pursuant to the Labour Law, employers may terminate one or more employment contracts, provided that termination is based on technological, structural or market-related reasons and is essential to the competiveness, economic restructuring or administrative or productive reorganisation of the company. These reasons are defined as follows:
- Structural reasons – these relate to the reorganisation or restructuring of production, changes in activity or lack of economic and financial resources which may result in a surplus of jobs.
- Technological reasons – these relate to the introduction of new technology, work processes or methods or the computerisation of services which may make it necessary to downsize staff.
- Market-related reasons – these relate to difficulties in placing goods or services on the market or a decline in the company’s activity.
Are there particular rules for collective redundancies/mass layoffs?
If a dismissal is due to technological, structural or market-related reasons and involves 10 or more employees, it will qualify as a collective dismissal and a more stringent procedure applies.
What protections do employees have on dismissal?
As a rule, employees may bring a case for reinstatement, which includes remuneration between the date of termination and the date of their effective reinstatement, subject to a maximum of six months. Any amount which was previously paid by the employer as compensation for termination will be deducted.
Should the employee so choose, or where circumstances objectively make reinstatement impossible, the employer must provide the following compensation:
- employees under permanent contracts – an amount corresponding to 45 days’ salary per each year of service; and
- employees under fixed-term contracts – the remuneration that the employee would have earned between the date of termination and the date on which his or her contract would have expired.
Jurisdiction and procedure
Which tribunals or courts have jurisdiction to hear complaints?
As a rule, employment complaints must be filed with the competent provincial labour court.
What is the procedure and typical timescale?
As soon as the employee files a claim with the court, he or she and the employer are given notice to attend a conciliation hearing in order to attempt to reach agreement. If no agreement is reached, the judicial phase begins. The timeframe for completion of this procedure will vary depending on the circumstances of the case and the court’s workload. The average timeframe for a first-instance proceedings is two years.
What is the route for appeals?
Appeals may be filed with the Court of Appeals by either the employer or the employee. A further appeal may be filed before the Supreme Court, subject to complex requirements.