Businesses operating in Mozambique and employing individuals there have likely encountered the longstanding Labour Law, Act 23/2007, of 1 August, which has been in operation since 2007. That Act has finally been repealed, and is set to be replaced by the new Labour Law, Act 13/2023, of 25 August, which comes into operation on 21 February 2024
The new Labour Law is a welcome update to Mozambique’s employment law framework and is expressly intended to address the significant socio-economic and technological changes that have occurred in Mozambique and transformed the workplace over the past 16 years. The Act covers new concepts like teleworking, temporary employment service (“TES”) arrangements, private employment agencies, paternal leave, and several others that firmly place Mozambican labour law on a contemporary twenty-first-century footing.
Who is covered, and who isn’t?
The Act will regulate both individual and collective labour relationships which have been defined fairly widely to encompass all subordinate work that is provided to another person or entity for remuneration. Both Mozambican citizens and foreigners are covered by the new Labour Law, 'in all fields of activity', as long as the activity takes place within the borders of Mozambique.
Article 2 expressly provides that the Act will also regulate, 'with the necessary adaptations', associations, non-governmental organisations (“NGOs”), international organisations, the cooperative / aid sector with regard to salaried employees working in that sector, as well as diplomatic and consular missions where these hire local workers. These types of entities are quite prominent in Mozambique and should ensure that they are compliant with the new Labour Law.
However, 'functionaries and agents of the State' (i.e. civil servants) and employees of Mozambican state-owned entities (“SOEs”), even those that have been 'decentralised' or partially privatised, are expressly excluded from the scope of the new Labour Law.
Special Regimes
Certain types of workers will be governed by special sector-specific legislation and these include artists, professional sportsmen and women, domestic workers or those who work in the home, maritime and port workers, fishermen, rural workers, as well as the mining, petroleum and private security industries. All of these industries, as well as any other industry for which special legislation is enacted, will be subject to its own special legislation as well as the new Labour Law.
The same conceptual approach is applied towards certain types of contracts or contractual arrangements (i.e. they will be regulated by special or specific legislation but the new Labour Law will also apply): these include retainer contracts, constructions contracts, intermittent and seasonal work contracts, freelance work, telework, and those who render their services via private employment agencies.
The most important principles to keep in mind when applying the new Labour Law
Article 5 sets out the most fundamental principles that infuse all of Mozambican labour law and that should always be borne in mind whenever interpreting or seeking to apply any provision of the new Act. This is because, if there is a contradiction between any provisions of the Act or with any other statute that regulates labour relations, the interpretation that best conforms, and gives expression, to these guiding principles should always be favoured.
These fundamental principles are 'the right to work' and the right not to be discriminated against, specifically based on colour, race, sex, ethnic origin, place of birth, religion, social position and political option. This is a closed list of grounds and, interestingly, fails to mention other possible considerations for discrimination, such as pregnancy, marital status, sexual orientation or language. The third fundamental principle is the right to have stability of employment and to maintain one’s position at the workplace. This right is obviously favourable towards employees and should be borne in mind whenever an employer contemplates dismissal or the amendment of an employee’s terms and conditions of employment. This right is arguably balanced by the fourth fundamental principle, which is the recognition that there is a need for 'the change of circumstances' at the workplace (such as, for example, where an employer is required to effect redundancies or implement material changes to terms and conditions of employment, in order to remain competitive).
Article 6 expands upon what 'the right to work' means in practice. This is the idea that all citizens (i.e. it does not include foreigners) have the right to work in a job or profession that they have freely chosen, with equality of opportunities and without experiencing discrimination of any kind. Forced labour is, therefore, expressly prohibited, unless it takes place within the framework of penal legislation (i.e. prison labour). Work must be conducted with strict respect to an employee’s rights and fundamental guarantees, and employers must protect the health of their employees and ensure that they work in safe and dignified working conditions.
All of the above fundamental principles are of utmost importance, as the culpable violation of these principles will render the underlying legal act to be null and void, but without prejudice to the civil and criminal liability of the offender.
What else does the new Labour Law say?
Over the coming months, we will publish a series of articles examining various aspects of Mozambique’s new Labour Law. In the next article, we aim to review how the Act will regulate the protection of the personal data of employees, to what extent Mozambican employees can be subjected to medical tests and exams by their employers, the regulation of remote surveillance measures at the workplace, and an employee’s right to the confidentiality of his or her correspondence.
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Read the original publication at ENS
