With the recent discovery of natural resources in Mozambique, several efforts have been made by the Mozambican legislator to regulate labor relations in the national mining and oil sector, taking into account the specificities of the sector and the need to comply with international practices, as well as the supervision of the flow of national and foreign companies and labor operating in this sector.
Law No. 23/2007, of 1 August, approving the Mozambican Labor Law (LL), establishes in its article 3 (1) c) that mining labor relations are governed by special legislation. This is one of the characteristics of Labor Law, which recognises that certain subordinate labor relations have specificities that justify their specific regulation.
It was in compliance with the aforementioned legal provision that the Council of Ministers, through Decree no. 13/2015 of 3 June, approved the Regulation of Mining Work (RMW). For this purpose, in this article we propose to reflect broadly on the legal regime of mining work in Mozambique, considering its specificities and scope that covers the mining and oil sector.
According to article 2 of the RMW, mining work is the set of subordinate activities provided to national or foreign entities, integrated in the mining activity and petroleum operations in Mozambique, including their subcontractors and respective national and foreign employees.
Article 4 of the RMW establishes the age of 18 as the minimum age for admission to mining work.
In the mining work, the employer shall, in coordination with the company's trade union, adopt measures to provide to those persons between the ages of 18 and 21 who are in their service, aimed at protecting their health, physical and mental integrity, preventing any risk resulting from lack of experience, lack of notion of existing or potential risk. Thus, once the risks are identified, the employer has the obligation to inform the employees, as well as the measures to be taken to prevent such risks.
Due to the nature of the mining activity and the potential risks to health, the mining worker must undergo medical examinations.
Thus, RTM has three types of tests that the employee is required to undergo:
- Hiring health examination, which must be performed prior to hiring the employee
- Annual periodic medical examination, which are carried out on a semester basis for those who carry out activities in the most dangerous places, namely mine pit, loading and unloading sites of the mining product, and this period may be reduced according to the clinical situation of the employee
- Dismissal health examination, carried out upon termination of employment contract
All these examinations are funded by the employer. In the event that the employee does not agree with the results of the dismissal health examination, he/she may appeal to the National Health Board that has jurisdiction of the area of the employee's professional domicile, which will subject the employee to a medical evaluation, which may be done by a public or private hospital unit, duly recognised, chosen by the employee, who in turn shall be required to defray the respective expenses.
The employee must not refuse to undergo the dismissal medical examination and, if this is the case, the fact must be confirmed by the union (of the company or industry) and the employer should not be held responsible for any occupational disease situation that may be discovered after the termination of the employment relationship.
The RMW introduces the figure of the period of notice1. The period of notice consists in the obligation of a certain employee to keep the employer, or the person designated by him/her, informed of the place where he/she is, in order to be able to be called for the immediate start of the extraordinary or exceptional work.
However, unlike the overtime or exceptional work regime provided for in the LL, under the period of notice regime, only employees residing in the immediate vicinity of the place of work may be posted to and can respond to any emergency situation in due time.
The period in which the employee is on period of notice is not counted for the purpose of weekly working time. However, the same will be remunerated under the extraordinary or exceptional work regime, according to the duration of work, or in 50% of the remuneration of extraordinary or exceptional work, in the case where the employee is not called to provide the activity.
Therefore, if during the period in which the employee is on period of notice, if for some reason the employee expresses his/her unavailability to perform his/her activity, his/her absence may be considered unjustified, subject to disciplinary proceedings, since in addition to the obligation to be available, the employee shall be remunerated for that purpose.
With regard to on-shore mining work, the actual working time cannot exceed the daily shift maximum limits and the employer must establish special measures to protect employees and a reorientation plan for the surface in cases where the employee has a physical disability or a health condition to perform underground work.
When carrying out offshore mining work , the period of work in offshore platforms may not exceed 30 consecutive days, and may be extended by a further 7 (seven) days, in case of exceptional need, and the employee must be paid with a normal remuneration plus 100%. The employer must provide medical services as well as collective leisure areas on all offshore platforms.
For offshore work, there are several requirements and conditions imposed on employees, resulting in impediments to those who do not meet such requirements, namely physical fitness, mental, pregnant women, puerperal and lactating women.
The employer must ensure the provision of daily and free meals to all employees at its service, adequate accommodation and collective insurance for work accidents and occupational diseases.
Finally, with this regulation, we believe that various labor situations related to mining and oil activity are guaranteed and protected, considering the risks and specificities that support it.
1 Article 12 do RTM.
SAL & Caldeira Advogados LDA is a member of the DLA Piper Africa Group, an alliance of leading independent law firms working together in association with DLA Piper across Africa.
Originally published in the SAL & Caldeira Newsletter 2017, No 26, March 2017 and reproduced with permission.