This article was originally published in ADCA News, March 2017, and is reproduced with permission.
On March 6, 2017, the diploma that regulates the Exercise of Professional Activity by a Non-resident Foreign Employee was published in the Official Gazette (Presidential Decree no. 43/2017).
To allow a more balanced treatment between national and foreign citizens in the exercise of professional activity.
Decree no. 5/95, April, 7, Decree no. 6/01, January, 19 and any other legislation that contravenes the provisions of the diploma.
(a) all companies to which General Labour Law and complementary legislation are applicable and (b) hiring foreign work force by technical cooperation contract.
- The civil partner is also considered as a member of the household of the non-resident foreign employee (in the previous diploma, only the spouse and minor children defined according to Angolan law were considered)
- Confirmation of physical and mental fitness by an entity designated for such purpose by Ministry of Health of the Republic of Angola is no longer necessary (medical certificate issued by the country in which hiring is carried out is still required)
- Foreign non-residents who have been granted a scholarship or professional training at the expenses of bodies or companies governed by public or private law that operate in Angolan territory may be hired
- Despite Decree no. 5/95, April, 7 is revoked, it is not possible to hire more than 30% of non-resident foreign workforce, and at least 70% must be filled by national workforce
- National workforce means Angolan employees and resident foreign employees
- The framework of the foreign employee must be made in accordance with the job qualifier, in the same terms applicable to national employees
- In the event of dismissal of non-resident foreign employee, the employer must settle all overdue amounts (the diploma also refers to outstanding amounts, not being clear what is intended by the legislator with this reference), to maintain the accommodation conditions established in the employment contract until communication to the Migration and Foreigners Service, as well as to provide ticket passage for the return of the employee to the country of origin
- Terminating the contract or whenever, irrespective of the reason, its termination is anticipated, the employer must inform in writing the cancelation of the registry at the Employment Center of the company’s location area and to the Migration and Foreigners Service
- It is no longer required to obtain prior authorisation from the General Labour Inspectorate for the transfer of the employee to a different area of the company by which the employee was hired
- The remuneration is paid in Kwanzas, and the supplements and other benefits paid directly or indirectly in cash or in kind, cannot exceed 50% of the base salary
- In our opinion, this modification, which has not correspondence in the previous diploma, does not bring news in respect of what was already provided in the General Labor Law, which establishes that (a) the pecuniary part of the salary is paid in Kwanzas, which may be in cash, (b) the non-pecuniary part of the salary, when it exists, may not exceed 50% of the total amount
- Notwithstanding the above, National Bank of Angola will define the amounts to be transfer resulting from the employment contract, which would mean that non-resident foreign employees may not see the remuneration (in full or partially) in the transferred to their country of origin in the corresponding currency
- It will be necessary to wait to understand how the banking institutions will apply or how the application of this provision will be ordered in practical terms.
The employer who hires a non-resident foreign employee without complying with the requirements established in this decree is punished, for each foreign employee in an irregular situation, with the following fines:
- 7 to 10 times the average monthly salary practiced in the company, when the percentage of non-resident foreign employees hired is more than 30% and the national workforce is less than 70%
- 5 to 10 times the average monthly salary practiced in the company, in the following situations:
- When the contract is not executed in triplicate and registered with the Employment Center of the location of the company, under the conditions indicated
- No payment of the fee due for each registration
- The remuneration is not paid in Kwanzas or if the other benefits paid are higher than 50% of the base salary
- If there is unequal remuneration between the non-resident foreign employee and the national employee
- When the principle of equality between national and non-resident foreign employees is not respected, in particular, when the framework is not based in accordance with the job qualifier in the same terms as national employees
- Failure to comply with the obligations of the employer when dismissing a non-resident foreign employee
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