NGO position regarding current process for contracting foreign workers

Introduction

NGOs are facing increasing difficulties in contracting foreign workers, which is having a negative impact on programmes, with a tendency to get worse.

NGOs have made a significant contribution to the reconstruction and social development of Mozambique. International NGOs continue to play a particularly important role in the mobilization of financial and other resources for the country, building capacity of national and local government and non-governmental organisations, providing technical support, and responding to emergencies.

Expatriate NGO staff have played a key role in this support. They have brought international experience to programmes, supported local capacity development, and filled gaps where local human resources are not available. Within organisations, they have contributed to the capacity-building and professional development of their Mozambican colleagues.

Until recently, contracting of foreign workers has been done through the “quotas” system established by the labour law,[1] which allowed NGOs to contract a limited number of foreign workers through a relatively simple, fast and transparent process. However, in September the Ministry of Labour sent out a circular informing that the quota system no longer applied to NGOs,[2] belatedly implementing a decree passed in 2008.[3] Consequently, all recruitment processes, as well as the renewal of existing work permits, now require a lengthy and bureaucratic process of obtaining various documentation including equivalence certificates for academic qualifications from the Ministry of Education. This has coincided with MINED changing the process for obtaining equivalence certificates, making it significantly more costly and complex. Furthermore, these changes have been put into place with immediate effect, not giving NGOs time to adapt to new procedures. 

This situation places a high administrative burden on NGOs and causes lengthy delays in recruitment processes, with a negative impact on their social programmes which have been agreed with local authorities and are funded by international donors. The new system is not workable for NGOs, is creating serious operational difficulties already for many, and sooner or later will have a negative impact on all national and international NGOs that recruit non-Mozambican staff, limiting their important contribution to the country’s development objectives. Some organisations are even reconsidering the viability of staying in Mozambique, or of implementing certain programmes, which would result in planned activities not being carried out as well as loss of Mozambican jobs.

Issues of concern

1. 1.       Processes are complex, lengthy, costly and unclear

The process for acquiring a work permit involves many steps and institutions, creating severe delays in recruitment processes and at times making them impossible. Particularly problematic is the process of obtaining academic equivalence, requiring certificates and carga horária (hours of study per subject), certified copies of which must be stamped by the Ministry of Education, Ministry of Foreign Affairs and Mozambique Embassy in the country of study before passing through a series of Mozambican institutions and finally submission to the Ministry of Education here. This process is lengthy, costly, and inflexible, not taking into account different education systems which in some countries are not compatible with this process, and with no guarantee that equivalence or a work permit will eventually be granted. Furthermore, the Ministry of Education and other government institutions do not have sufficient capacity to deal with processes (even under the previous quota system), causing delays of several months in processes moving through the system. This will become worse with the introduction of the new requirements for work permits, which will lead to significantly increased workload. The work permit process is costly, incurring direct costs (the Ministry of Labour alone charges a fee of approx. 1300 USD – more than is charged for private companies) plus indirect costs relating to administration and often travel to the country of study. Finally, the work permit process is not clearly understood by all stakeholders, with different interpretation of the legislation between provinces.

1. 2.       There are contradictions between different government policies and laws

• In order to obtain a DIRE, a valid work permit is required; however, a recently introduce criteria for providing equivalence certificates (now needed to obtain a work permit) is a valid DIRE, creating an impossible situation.
• Contrary to government decentralisation strategies, the process for approval of work permits has become highly centralised, with approval required from the Minister of Labour for all cases.
• NGOs working in the health sector have signed a Code of Conduct with the Ministry of Health in which they agree to avoid hiring professionals working within the National Health Service; at the same time, it is now exceptionally difficult to recruit foreign health professionals.

1. 3.       The system does not take into account some realities of the labour market and NGO human resource needs.

The approval of work permits is currently carried out on the basis of an analysis of whether or not there are qualified Mozambican candidates for the post. However, this analysis is based only on academic qualifications, without taking into account professional experience which is of high priority in NGO recruitment processes, both for national and international staff. Furthermore, the analysis does not address constraints regarding the national supply of qualified, available, experienced staff – although the Ministry of Labour claims to include an assessment of the existence of qualified Mozambicans for a post, it is not clear how it takes into account an analysis of the availability of these candidates to work for NGOs, under the conditions they offer, particularly regarding posts based in the provinces or districts. By contrast, it is standard practice for NGOs to hold local recruitment processes for all posts prior to recruiting international staff, enabling them to give preferential treatment to Mozambican candidates suitable for the post. For most posts it is preferable for the NGO to recruit national staff for many reasons (cost, language, sustainability, local knowledge, etc).  Finally, there are no exceptions to the new rules, including Country Directors/Chiefs of Party – positions for which the number of qualified and experienced Mozambican candidates would be small, and which are often required by the donor to be filled by an expatriate.

1. 4.       The current measures will not address the problem faced by the country of illegal workers taking Mozambican jobs.

The current perception that there is an influx of foreigners who are taking national jobs is like to be mainly due to illegal workers in the private for-profit sector. NGOs employ relatively few international staff in comparison to the rapidly expanding private sector. A study found that foreigners hired through quota system bring skills and experience that positively impacts on Mozambican workers and facilitates job creation for nationals.[4] Furthermore, NGOs always attempt to comply with the law, and are to a large degree self-policing in that they rely on donor funds, with a strong emphasis on showing value for money, encouraging them to employ Mozambicans wherever possible due to the higher costs of employing expatriates. The current measures will punish those NGOs that abide by the law, while not addressing the problem of illegal workers.

1. 5.       The way the change process has been managed has been problematic for NGOs.

The change in the application of Decree 55/2008 by the Ministry of Labour was made without any forewarning or consultation with NGOs, which has not allowed them time to adapt to the new requirements and is currently creating serious difficulties for many organisations. Difficulties in renewing work permits for existing staff are particularly disruptive to programmes. Many NGOs have already made significant progress towards nationalising their staff structure, but need more time to continue to build local staff capacity and experience.

Conclusion and recommendations

Our understanding, which we believe to be shared by the Mozambican Government and its development partners, is that the current legal framework around employment of foreign workers aims, rightly, to protect Mozambican citizens, as well as support economic and social development, and to strengthen the national workforce. However, NGOs believe that the current system will not address national concerns about the influx of foreign workers in the country, and will have a significant negative impact on social development programmes in the country, as well as on the general employment of Mozambicans.

NGOs propose that to minimize this negative impact, the Government should:

• Conduct an objective assessment of the current labour context and the impact of foreign workers, particularly in relation to NGOs, with involvement of stakeholders including NGOs;
• Involve NGOs in the process of reviewing and revising the current legal framework and its implementation;
• Temporarily revert to the previous quota system, and clarify and simplify procedures.

We also suggest the following specific recommendations are considered.

• Ministry of Labour

1. Revert temporarily to the application of the quota system for NGOs;
2. Ensure meaningful NGO consultation during the process of revision of current legislation and practice;
3. Incorporate into the work permit evaluation process an assessment of not only academic qualifications, but also professional experience and availability of Mozambican candidates;
4. Establish and comply with time limits for processing applications;
5. Consider simplified processes for obtaining work permits for (a) Country Representatives of NGOs, being a particularly sensitive post; (b) health professionals due to the critical shortages in country, and (c) contract renewals, perhaps creating a limit period of 5 years during which the international staff member should build local counterpart capacity.
6. Provide clear feedback to NGOs in cases of refusal to grant a work permit;
7. Simplify the requirements regarding INSS statements to allow submission of an institutional statement (confirming the NGO is up to date with INSS payments) instead of an individual statement;
8. Create space for NGO participation in the CCT (Conselho Consultivo de Trabalho – Labour Consultative Council), to facilitate dialogue between the Ministry and NGOs;
9. Establish a focal point for NGOs within the Ministry;
10. Disseminate any changes in regulation at provincial and district level, through the Ministry website and through open meetings with the Direcção Provincial do Trabalho and partners (NGOs) to avoid misinterpretation of the Law and procedures

• Ministry of Education

1. Simplify and harmonise the process for obtaining Equivalence certificates, for example through:

• Reducing or removing requirements for obtaining stamps on documents by various institutions in the country of study;
• Consider creation of a list of “approved” academic institutions for which requirements are simplified.

1. Establish and comply with time limits for processing equivalence requests;
2. Provide feedback to NGOs in cases of refusal to grant equivalence;
3. Establish effective mechanisms for communicating any further changes to requirements consistently and prior to changes taking place.
4. Establish a focal point for NGOs within the Conselho Nacional de Exames, Certificação e Equivalências.

• Ministry of Health

1. Review the NGO/MISAU Code of Conduct to ensure that it is consistent with national labour legislation and practice;
2. Clarify criteria for deciding whether or not to recommend approval of work permit, and provide feedback to NGOs in case of refusal.

Appendix: Case studies

Case study A

One European NGO has been working in 2 rural districts for 15 years supporting health and water/sanitation projects including HIV, maternal & child health, and nutrition. Due to the current situation, this organisation is facing severe constraints in delivering its programmes:

• Two existing staff members have not been able to renew their work permits due to new regulations. Past experience has shown that the equivalence process can take over 1 year.
• The new country representative has no work permit and no DIRE (residence permit) due the non-compatibility of immigration and equivalence certificate procedures.

Two of these staff members are bank signatories, and if they have to leave the country the programme will be unable to make financial transactions and will close. This organisation currently mobilises 2 million USD annually for support to the health sector. It has supported rehabilitation and equipment of several health facilities, capacity building of health workers, and support to local NGOs to deliver community health programmes. The organisation currently employs 50 national staff. Due to the current situation the programme risks closure.