Safety is in the Details!

Bravo, finally the work permit application was successful. The foreign citizen is now legally employed. The employment contract is duly certified and there is a work permit proving it, but… that’s not the end of the story. Contract management comes into scene and at this stage the employer must be aware of the details. Below I present four details the employer must be aware of, as established by Decree no. 37/2016, of 31 August (approves the “Regulations on Employment of Foreign Citizens”):

  1. Changes to Employment Contract: The Regulations on Employment of Foreign Citizens provide that the employment contracts with foreign citizens must compulsorily contain: (i) identification of the employer and the foreign employee, (ii) occupational grade, duties or activities agreed, (iii) place of work, (iv) duration of the contract, which cannot exceed 2 (two) years1, (v) amount, form and timing of wage payments, (vi) date of beginning and end of performance. However, in case of change of any of the above mentioned details, notice to the local province labour department must be given. A copy of the relevant agreement must be attached to the notice2 The Regulations on Employment of Foreign Citizens do not provide a specific period in which the notice must be given. Therefore, from a practical perspective, the sooner, the better.
  2. Professional License: There is also the need to pay attention to some specific activities that demand professional license (e.g.: engineers, nurses, doctors, chartered accountants, etc.). In these cases the employment contract will only be valid if a professional license is provided. Otherwise the contract will be deemed null and void.3 Therefore, special attention to this detail is relevant, since this can have implications for the company in case of litigation.
  3. Termination of Employment Contract: There is also the need to give notice to the province labour department in case of termination of the employment, irrespective of the reasons for termination. This notice must also be given to the province immigration department. The notice must be given within fifteen days from the date of the employment termination.4
  4. Transfer of Foreign Employees:5 Much attention is required in case of transfer of foreign employees. This is as such because the Regulations on Employment of Foreign Citizens limit the employment of foreign citizens to the province where the work permit was issued.6 This means that if, for instance, the work permit was issued by the labour department in Inhambane province, the foreign employee is limited to work solely in Inhambane. 

The Regulations on Employment of Foreign Citizens provide that there can be temporary and definitive transfers. Temporary transfer refers to cases where the foreign employee goes to another province to deal with specific work issues and then returns to his/her original province. Temporary transfer does not cover the whole contract duration. On the other hand, there is definitive transfer when it covers the whole contract duration. In these cases transfer is allowed if the company totally or partially relocates to another province.7 However, definitive transfer is made possible if the company has available quota in the new location. Exception to this rule is given in cases the company has no branch or representation in the province to which the foreign employee is transferred or in case the company activities are of national coverage or in various provinces. Implementation of definitive transfer is subject to prior mutual agreement between the employer and the foreign employee.

The transfer8 notice must be given to the labour department in the province where the work permit was issued. The company must keep copies of the notice in the province to which the foreign employee is transferred. This is as such because in case of a labour inspection the copies can be presented to the labour inspectors as evidence of legal compliance.

The above mentioned are some details that companies need to be aware of when managing foreign employees’ contracts. To comply with each of these details, all needed is a letter (along with relevant documents) giving notice to the labour authorities. Of course, interaction with the labour authorities is always relevant to ensure full compliance from a practical perspective – remember SIMIGRA!9 Nevertheless, attention to these details can make a huge difference between painful fines applied by the labour inspectorate or peace of mind for complying with the law. Choose wisely!

  1. Regulations on Employment of Foreign Citizens, Article 21.
  2. Regulations on Employment of Foreign Citizens, Article 20.
  3. Regulations on Employment of Foreign Citizens, Article 22.
  4. Regulations on Employment of Foreign Citizens, Article 23.
  5. Regulations on Employment of Foreign Citizens, Articles 24 and 25.
  6. Regulations on Employment of Foreign Citizens, Articles 6.1, 10.1 and 17.1
  7. The employer and the foreign employee may stipulate other reasons for definitive transfer in the employment contract.
  8. Along with a copy of the work permit, and the mutual agreement in case of definitive transfers.
  9. Please refer to my article “Work Permit Applications – Dissonance Between Law and Practice“

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