The Employment Law Review: Angola
The Angolan employment law framework has two different facets: (1) it is very protective of the employee's position, especially considering the constitutional limitations and impositions; and (2) for economic and social reasons, some legal regimes (e.g., employment agreements for a definite or an indefinite term) and legal restrictions were simplified and revoked to promote employment opportunities.
The main legal instrument is the Angolan General Labour Law, approved by Law No. 7/15, of 15 June and rectified by rectification No. 15/15, of 2 October (GLL), which regulates the core regimes to be applied to the employment relationship. Other laws regulating specific regimes (such as temporary agency work, accidents at work, employment contract paradigms, collective negotiations and strikes) may also be applicable.
The labour courts and appeal courts (if the necessary requirements are met) are competent to try labour judicial conflicts. This regime is regulated by several decrees, some of which are long-standing.
The Inspectorate-General of Labour is responsible for the enforcement of law on labour matters through several mechanisms, such as inspections, requests for information and administrative offence proceedings. Other administrative entities may also act for the employer, depending on the matter in question.
Year in review
As during 2020, the past year has been dominated by the covid-19 pandemic and its consequences for industries and services. Contrasting with other countries, the Angolan government tried to balance labour obligations with preventive measures. Restructuring companies and adapting them to new ways of working were a concern while overcoming the difficulties posed by the virus and the efficiency of the vaccination plan.
Court activity has undergone several changes during the past year because of the pandemic, resulting in a reduction in court proceedings. Although it is expected that the courts will resume their ruling of decisions made by companies and employers in the coming years (directly or indirectly concerning new legislation or consequences arising from covid-19), at present, no further comments can be substantiated.
Basics of entering an employment relationship
i Employment relationship
According to the GLL, a written employment contract is required only for specific situations (e.g., employment agreements entered with foreign workers). The parties may amend or change the employment agreement through a written agreement. The terms of employment (other than those that provide for essential conditions for the employee) may be altered, provided they comply with the legal framework.
However, if written, the employment agreement must contain the following elements: full identification of all parties to the contract; professional classification and occupational category of the role; workplace; weekly working time; amount of salary, method and payment period, as well as reference to supplementary or complementary salary allowances or payments in kind, with an indication of the respective amounts or calculation formula; date of commencement of work; place and date of signing the contract; and signature of both parties. A current presidential decree has proposed templates for employment contracts.
Employment agreements for either a fixed term or an indefinite term are permitted under the GLL, but both are subject to maximum durations. In contrast to previous general labour laws, the current GLL does not require an underlying reason for the employment agreement be considered valid.
ii Probationary periods
Although the GLL allows for probation periods, the actual duration depends on the type of contract and employee.
If the employment agreement is for an indefinite period, the probation period will be:
- up to 60 days, in general;
- up to four months if the employee is performing tasks of a high technical complexity that are difficult to evaluate. In this case, a written agreement is required; and
- up to six months if the employee is performing management functions. Again, a written agreement is required.
If the employment agreement is for a fixed or definite term, a written agreement is required, and the parties may foresee a probation period of up to:
- 15 days for non-qualified employees; and
- 30 days for qualified employees.
During the probation period, either party may terminate the employment agreement without giving any notice, paying an indemnity or providing a justification.
iii Establishing a presence
A foreign company must be officially registered to carry out business in Angola and, subsequently, to hire employees. Without prejudice, a foreign company may hire a service provider to carry out a particular service; however, to hire employees through an agency or third party, the foreign company must also be registered. The legislation is not clear about whether a permanent establishment may hire employees, in particular because it may be difficult for the relevant authorities to retain the requisite taxes and social contributions.
However, if a company is hiring employees, it must comply with the labour legislation and minimum requirements (e.g., paying a minimum wage as established by the Angolan state and holding a labour accident insurance policy), and the tax and social contributions regimes. Taxes due and other contributions are retained by the employer, who is responsible for reporting and withholding these amounts.
Even though the GLL allows for non-compete clauses, several requirements must be fulfilled for the clause be considered valid and effective. Pursuant to Article 45 of the GLL:
- the period of validity of a non-compete obligation cannot be more than three years after termination of the employment agreement;
- the non-compete clause must be forecast on the employment agreement or an addendum;
- the employee's activity may cause a real damage to the employer as be considered as unfair competition;
- regarding compensation system, the employee shall be granted with a salary, during the non-compete period. Its amount shall be foreseen on the non-compete clause and had into consideration the significant expenses with the professional formation of the employee that were incurred by the employer.
Regardless of any express provision of a non-compete clause, while working for an employer, the employee is bound by a duty of loyalty not to negotiate with any competitor of the employer or to work in competition with the employer's company.
i Working time
The GLL provides for a maximum working period but this can ultimately depend on the type of working schedules applied to a certain employee. In general, working time cannot exceed 44 hours per week and eight hours per day. Special regimes regarding working time may be in put place if the necessary requirements are met.
As a general rule, night-time work cannot exceed eight hours per day. If an employee works for at least three hours between 8pm and 6am the following day, it is deemed to be night-time work. The GLL provides for reasonable exceptions to these general rules.
According to the GLL, overtime work can only be performed if the legal requirements are met. Overtime work shall arise only from urgent requirements in production or services.
When overtime is permitted, the following maximum limits must be observed:
- two hours per day;
- 40 hours per month; and
- 200 hours per year.
Employees will be paid an enhanced hourly rate for each hour of overtime. This hourly rate depends on the number of overtime hours worked and the type of employer.
There are two types of foreigners to which different regimes are applied: (1) foreigners who hold a temporary or permanent residence permit (designated as resident foreign employees); and (2) foreigners who hold a valid working visa (called non-resident foreign employees) to whom a special regime must be applied.
The term 'non-resident foreign employees' applies to foreign citizens with a technical and scientific professional qualification that is lacking in Angola. Since these employees are hired abroad, they are subject to a special regime as provided by Presidential Decree No. 43/17, of 6 March, and can only perform their activity in Angola for a certain period.
Among other requirements, the aforementioned Decree prescribes that only 30 per cent of a company's employees may be non-resident foreign employees.
The employer must register the employment agreement and pay the respective fee. Furthermore, when submitting the company's annual report/employee's nominal register (known as RENT), the employer must also submit, if applicable, an annex containing a register of foreign employees (in which the following data is required: name, remuneration, admission date, contract duration, authorisation date, country of origin and the entity that issued the visa). The payment of taxes or local benefits varies, depending on the specific situation of the employee.
According to the GLL, companies with more than 50 employees are required to approve internal regulations (to be written in the local language) regarding the following matters:
- technical organisation (rules or standards);
- work performance and discipline;
- delegation of powers and competences;
- tasks or functions to be performed;
- safety, health and hygiene in the workplace;
- indicators of employees' performance of their work;
- remuneration system;
- working hours of the various sectors of the company or work centres;
- control of employees' arrival, departure and movements within the company;
- surveillance and control of production; and
- any other matters not being directly related to the employment relationship.
During the preparation of these regulations, the company is required to consult employees' representative bodies, which have 20 working days in which to respond with their opinions.
Any regulations that concern performance and discipline, remuneration systems, work performance, or safety, health and hygiene in the workplace, must be sent by the employer to the Inspectorate-General of Labour for registration. If the authority detects any irregularity, it must initiate the necessary measures for it to be rectified.
When the regulations are approved, they must be published and displayed in the workplace, in a place that is accessible to employees, for their information. The regulations will not enter into force until 10 working days after publication. They are then legally binding on both employer and employees and, therefore, constitute part of the employment agreement.
Female employees are entitled to maternity leave during and after pregnancy.
Presidential Decree No. 8/11, of 7 January, which regulates the legal regime for family benefits, in particular maternity leave and maternity allowance, is directly applicable (since the GLL is omissive).
The employee is entitled to maternity leave of three months (except in the case of a multiple birth, for which the duration can be extended to four months), which can begin four weeks before the expected delivery date.
The amount of maternity allowance is equal to 100 per cent of the average of the two best monthly salaries during the six months preceding the beginning of maternity leave. Although employers are responsible for the payment of the maternity allowance upon an employee's request, they may request reimbursement of the amount paid to Social Security provided that the requirements set forth in Presidential Decree No. 8/11 are met, including requesting reimbursement within 120 days of the birth. The Decree also provides for some particular rules to be considered.
Pre-maternity leave (i.e., prior to maternity leave, as defined above) may be granted, but only if a pregnant woman is unable to perform any labour activity because of a high-risk pregnancy (which must be confirmed by the national public health authority), and does not affect the duration of maternity leave. Although, in any event, the duration cannot exceed 180 days.
Pre-maternity leave, and the associated allowance, is granted only if the employee (1) is enrolled on the national social security system and has made contributions for six consecutive months or interpolated months in the 12 months prior to no longer being able to carry out work, (2) has made all due payments to social security up to the end of the month prior to no longer being able to work, and (3) where relevant, presents a medical declaration issued by the national public health authority that certifies the existence of a high-risk pregnancy and the estimated amount of time necessary to prevent any risk to the unborn child.
Furthermore, in this situation, the employee must make a direct request to the employer for payment of her pre-maternity allowance. The employer will be reimbursed by Social Security if the legal requirements are met. The pre-maternity allowance is paid monthly by the employer and it amounts to 60 per cent of the monthly maternity allowance (which is calculated as stated above).
An employee may extend the statutory maternity leave by requesting complementary leave for a maximum period of four weeks to monitor the child. The additional period is unpaid and may be taken only if written notice is given to the employer (in which the amount of time to be taken must be indicated) and the employer does not have a kindergarten or nursery.
During the period of pregnancy and up to 15 months after delivery, the employee is entitled to be absent for one day per month, without the loss of pay, for medical monitoring and childcare. This period cannot be accrued with the provision of part-time work, if performed after childbirth. Furthermore, the usual entitlement to annual leave of employees who have childcare responsibilities is increased by one day of leave per child up to 14 years old.
Finally, during pregnancy and up to 12 months after childbirth, the employee is protected against dismissal, except in the event of a disciplinary infraction that endangers the employment relationship and makes it impossible to maintain.
The employment documents must be drafted in the local language and, if not the same, the employee's native language. The purpose of this is to ensure that the employee understands the obligations and conditions, and can therefore be legally bound by them. Notwithstanding the forgoing, the employment documents to be sent or submitted to an administrative authority must be drafted in the local language.
According to the Trade Union Law, approved by Law No. 21-D/92, of 28 August, if employees are elected as union representatives or union delegates, they are entitled to specific rights (such as justified absences (paid or unpaid) and additional protection, in respect of dismissal).
Under the GLL, a company is obliged to consult or inform the union's representative in certain situations (e.g., change of working period, internal regulations, disciplinary measures or redundancy procedures).
Under Angolan law, the employees' representative bodies do not have legal standing, despite being perceived as a company body and their representatives being entitled to the same rights and duties as trade union representatives.
i Requirements for registration
The Angolan Data Protection Agency (APD), officially established only in late 2019, is the competent regulatory authority for the enforcement of the Personal Data Protection Law, which entered into force in 2011.
In general, the Law regulates the processing of personal data, regardless of the nature or means of processing, including the name, age, address, telephone number and email address of the employee, among other information.
The Personal Data Protection Law sets out the following requirements:
- the consent of the data subject (employee) must be obtained by the data controller prior to processing personal data, provided the specific purpose and means of processing is permitted by law;
- prior notification or prior authorisation for the processing of personal data;
- applicable restrictions on the movement and transfer of personal data; and
- the enforcement framework for non-compliance with the regulations contained in the Law.
The employer, if qualified as a data controller or data processor, will be subject to the above provisions and restrictions. Nonetheless, in the private and cooperative sectors, the term 'personal data' may also include information contained in employee files, occupational health files, customer management files, arrival and departure registers, and video surveillance files, if permitted by law.
Regarding all data considered to be personal, the company must ensure adequate technical protection and prevent the display of such information and, in some cases, take measures to prevent any non-authorised people from having access to the data. For instance, only the company doctor is permitted to have access to employees' medical (and, therefore, confidential) data.
ii Cross-border data transfers
Cross-border data transfers may only occur if the destination country has a certain level of security and must first be notified to the APD, being the entity responsible for authorisation. If the destination country does not comply with the required level of security, the transfer may still occur if certain legal requirements are met, including the issuance of an authorisation by the APD and the employee's consent.
iii Sensitive data
The term 'sensitive data' applies to personal data concerning philosophical and political beliefs, union or political party affiliation, religious faith, private life, racial or ethnic origin, health and sexual life, including genetic data. See also Section XII.i in respect of medical data. The Personal Data Protection Law sets out specific requirements for processing sensitive data, including a prior authorisation by the APD and provided the legal requirements are met.
iv Background checks
The legislation is not clear about the possibility of background checks, including credit checks or criminal records, especially considering the principles set out in the Constitution. Nonetheless, it is possible that reference to criminal records may be required for applicants in some professions. Medical examinations may also be required, although the medical data cannot be released to the employer. Only details regarding a person's aptitude for the work to be performed may be provided.
The employer can dismiss an employee only with subjective or objective cause. The employer may terminate the employment agreement with just cause (by following the disciplinary procedure and applying a disciplinary sanction) or on objective grounds for economical, technological or structural reasons (see Section XIV).
A dismissal for a subjective cause can only be considered valid if the disciplinary matter is considered sufficiently serious, or when the reason for the infraction is objectively imputable and can be objectively verified, that it is considered no longer possible to maintain the employment relationship. The GLL sets out the disciplinary offences that may constitute just cause for dismissal. Hence, the employer must prove, as a minimum, the employee's obligations and respective infringement, the severity of the infringement and the employee's intention in committing the infringement.
The procedure to be applied in these circumstances entails a summons to a hearing, a hearing and the decision phase. The procedure may be extended, depending on the category of the employee. However, certain categories of employees are protected against dismissal: employees who are or have served as a union leader; union delegates or members of the body representing employees; women entitled to maternity protection (see Section IX); former combatants; minors (aged 14 years or above); and disabled employees with 20 per cent or more disability.
When dismissing an employee for a subjective cause, the employer is not required to give the employee notice or pay any indemnity. However, if the dismissal is ruled null by the court (because of an infringement of the necessary formalities, such as not sending a competent summons for a hearing, which must contain a description of the facts that constitute the disciplinary offence), the employer must reinstate the employee and pay the salaries due as of the date of dismissal until reinstatement, within certain limits.
If the court rules that the dismissal is unfounded (e.g., the employee's conduct was not sufficiently serious to justify the dismissal or the disciplinary offence did not make it impossible to maintain the employment relationship), the employee can choose between reinstatement or receiving an indemnity, within certain limits. In addition, the employer must pay the base wage due as of the date of dismissal until reinstatement or the res judicata date (if it is prior to being hired), within certain limits.
At any time, the parties may enter into an agreement, of which the terms and conditions are settled case by case.
Angolan law does not foresee any lay-off regime (as a temporary suspension or because of a reduction of work). However, the GLL provides for suspending the employment agreement for reasons relating to the employer's activity or causes not relating to the employee (such as calamities, accidents or other situations of force majeure), for dismissal on objective grounds or collective redundancies.
The suspension of an employment agreement must follow the requirements and procedure laid out in the GLL, including notification to the Inspectorate-General of Labour.
Dismissal for objective grounds or redundancies must be based on the need to discontinue or substantially transform certain jobs for proven economic, technological or structural reasons, involving the reorganisation or internal conversion, reduction or termination of activities. Whatever the reason, the situation must exist prior to the beginning of the dismissal and respective procedure.
Additional requirements must be observed by the employer, such as the number of employees to be dismissed, which are key to the type of dismissal to be carried out. If an employer intends to terminate up to 20 employment agreements, it must initiate a procedure for dismissal on objective grounds. If an employer intends to terminate more than 20 employment agreements, it must resort to a collective redundancy.
Compensation is due to employees affected by both types of dismissal. Calculation of the amounts due take account of the type of company and the number of years the employee has served with the company, within certain limits.
The formal procedure for dismissal on objective grounds entails a notification phase (including to the Inspectorate-General of Labour) and an execution phase (namely, a notice period of 30 days prior to the termination date, which is subject to the GLL's requirements and limitations). Additionally, the Inspectorate-General of Labour may be called on to intervene after receiving the mandatory notification from the employer.
The procedure for collective redundancies is laid down in the GLL, and also entails a notification phase and an execution phase (namely, a notice period of 60 days prior to the termination date, subject to the GLL's requirements and limitations). Again, the Inspectorate-General of Labour may intervene having received the mandatory notification. Furthermore, the employer may schedule meetings with the employees' representative bodies to provide information and data about the situation, and it may submit the conclusions arising from those meetings to the Inspectorate-General of Labour.
Finally, some categories of employees, such as employees' representatives, women under maternity protection, former combatants, minors (aged 14 years or more), and employees with a disability equal to 20 per cent or more may benefit from special protection (e.g., further notifications or binding opinions to be issued by the Inspectorate-General of Labour).
Transfer of business
The GLL regulates the labour regime applicable in the event of a business transfer in the form of employer modification, by making two important distinctions: a change in the legal situation of the employer and a change in the company's ownership.
According to the GLL, a change in the legal situation of the employer may consist of a takeover, merger, transformation, split or any other legal alteration desired by the company. A change in a company's ownership may take the form of a business acquisition, lease cession or any other fact or act that entails a holding transfer of the company, work centre or part thereof, through a business deal between the previous and the current owner. If the business activity of the new employer is the same as the former employer, all employment relationships are transferred directly to the new employer, including any contracts already terminated.
The new employer is responsible for any obligations in respect of employees' rights. However, the extent of those obligations depends on whether a procedure was completed by both employers, such that the previous employer may also be responsible for fulfilling certain obligations. Within 22 working days of the transfer taking place, the employees have the right to terminate their employment agreement with notice.
The new employer is also obliged to maintain the same work conditions established in a collective bargaining instrument or internal practice, without prejudice of the alterations permitted by the law.
The new employer must notify the Inspectorate-General of Labour within 15 working days of the transfer.
The covid-19 pandemic has demonstrated how the GLL is not fully adapted to deal with this type of incident. Many of the solutions introduced have been regulated or addressed by temporary decrees and by recourse to subsidiary regimes. As has been found in several countries, the law needs to be more flexible and be capable of addressing situations as they arise, such as teleworking (from home or another place) and alternative measures for suspending employment as foreseen by the GLL.
1 Daniela Sousa Marques is an associate at Morais Leitão, and Catarina Levy Osório is a founding partner at ALC Advogados and a partner at Morais Leitão.