The practical effect of the approval of the regulation on leave for day off in Mozambique
Introduction
In the last years it has been frequent the concession of leave for a day off by the Minister that superintends the labor area before, during and/or after the holidays and other commemoratives dates based on the need of providing a good festive environment to the Mozambican citizens and foreign citizens resident in Mozambique. This situation has displeased the employers that have seen the measure has an obstacle for the growth of their enterprises, because it affects negatively their productivity and put in risk the fulfillment of their commercial commitments.
Therefore, the employers have addressed several and severe criticism to the Government because of the leaves for a day off, generating debates in different levels of the Mozambican society.
In this scenery, the Council of Ministers approved in 12 May 2015, through the Decree 7/2015 of 3 of June, the Regulation on leave for day off, which we analyze in following items.
The approval of the Regulation on leave for a day off
The Regulation on leave for a day off (RLDO) has the object to establish the rules and criteria for a concession of the leave for a day off in national level for the municipal cities and villages, as long as the commemoratives dates of non-municipal cities and villages (article 1, RLDO) and it applies to public and private employees, except those employees whose activities may not be interrupted.
The RLDO establishes as national dates of leave for a day off (article 5, RLDO):
a) The date designated for voting in general elections and in elections for provincial assemblies;
b) The date of taking office of the elected President of the Republic;
c) The afternoon of the day that precedes the holiday concerning to the new year, except if it coincides with Sunday.
In relation to the municipal cities and villages, the RLDO establishes as dates of leave for a day off (article 6, RLDO):
a) The date designated for local elections;
b) The date designated for upgrade of a territorial boundary to the category of city or village, but might not exist more than one leave for a day off.
It competes to the Minister that superintends the labor area to concede other leave for a day off (article 5/2, RLDO).
The leave for a day off confers the comprised employees the right to suspend the labor activity, without loss of remuneration, and the non-comprised employees, that have effectively worked in that day, the right of normal daily remuneration plus 100% (article 8, RLDO).
The practical effect of the approval of the Regulation on leave for a day off
From the analysis of the RLDO provisions we do not see any practical effect that may reflect a change of the present scenery of the indiscriminate concession of leave for a day off in Mozambique. The provisions established in the RLDO only confirm what was already happening in Mozambique, because all the dates mentioned in it as leave for a day off were so considered before its approval.
As a matter of fact, we could not expect more from this regulation, because it competes to the Minister that superintends the labor area to concede the leave for a day off, according to the article 97/1 of the Labor Law (Law number 23/2007 of 1 of August).
So, the competence that the Council of Ministers confers to itself to concede the leave for a day off seems to be forced, according to the article 204/1/a) of the Constitution of the Republic. Notwithstanding, even if we could infer that the Council of Ministers has the competence to concede the leave for a day off through this provision, the Council of Ministers could not do it through a decree because already exist a law from the National Assembly that rules this matter. This law is hierarchically superior to the decree and all its provisions that contradict that law have no effect, because the decree of the Council of Ministers cannot revoke or change a law from the National Assembly. Only by the way of decree-law, which implies the legislative authorization from the National Assembly, we could “put the possibility or hypothesis” of the matter of leave for a day off being ruled by the Council of Ministers, considering that the decree-laws are in the same hierarchic position as the laws from the National Assembly.
Therefore, the provision established in the article 5/2 of RLDO has no effect, considering that it competes to Minister that superintends the labor area to concede other leave for a day off, because the Labor Law (which is hierarchically superior to the RLDO) confers to that Minister the competence to concede all the leaves for a day off.
Proposed solutions
To the problem in discussion, we propose that the Council of Ministers proceeds with the opinion poll to the entities directly affected with the indiscriminate concession of the leave for a day of in order to be aware of their sensibilities about the matter and produce a project of law based in them and submit to the National Assembly for purposes of discussion and approval.
The existence of a law from the National Assembly that establish the rules and criteria for concession of leave for a day off, introducing obviously changings to the Labor Law, remove the problem of dubious competence (of the Council of Ministers to concede leave for day off) existent after entrance into force of the RLDO. We would have a new law from the National Assembly changing the provisions of a previous law of the same body, which is technically correct. And, besides the technical matter, we would have a new law that would positively respond to the expectations and interests of the entities directly affected by it, which would also reflects in a positive practical effect.
Conclusion
With the entrance into force of the RLDO is not visible any practical effect because it does not bring anything new. The RLDO confirmed what was already happening in Mozambique, because all the dates mentioned as leave for a day off were so considered before its approval. Therefore, are still to be satisfied the expectations and interests of the employers that see the leave for day off as an element that contribute to the breach of the productivity of their enterprises and to the fulfillment of their commercial commitments.
In the other hand, the Council of Ministers could not concede the leave for day off by decree, because the competence for such concession is conferred, by the Labor Law, to the Minister that superintends the labor area, which implies that the provisions of the RLDO that contradict that law have no effect.
Therefore, we propose that the Council of Ministers proceeds with an opinion poll in order to be aware of the sensibility of the entities directly affected by the indiscriminate concession of leave for a day off and elaborate a project of law that finds their needs and interests and submit it to the National Assembly for discussion and approval.
