In order to implement this solution, it would be necessary for an employer that has been subject to these charges to appear in the action as the author of the same. To this end, an Action for Simple Negative Assessment could be submitted to the court, whereby the court would be required to order the union to refrain from charging.

As it is known, export revenues are subject to repatriation, which must be done within 90 days from the date of shipment in the case of export of goods and the receipt of the price, or fees in the case of exports of services. According to the FELR, these revenues were subject to conversion of at least 50 percent.

Moreover, the divergence of the application of D108/14 is due to the fact that the dependents of the holder of the work visa continue to be granted residence visas which contradict the provisions of Article 23 (1) of D108/14, which establishes the granting of temporary stay visas to the dependent spouse.

In our article published in the Newsletter no. 108, dated December 2017 (part 1), we addressed the issue of collection of amounts by the unions to employers whose employees are not affiliated. In this article, we intend to reflect on the guarantees given to employees and employers affected by the actions of trade unions in order to contest these practices.

Complaint to the Petitions, Complaints and Claims Committee of the Assembly of the Republic of Mozambique on the charge of fees by trade unions

Under article 79 of the CRM, all citizens have the right to file petitions, complaints and claims to the competent authority to demand the reinstatement of their violated rights or in defense of the general interest.

The right to file petitions, complaints and claims is regulated by Law 26/2014, of 23 September, which regulates and disciplines the right to file petitions, complaints and claims before the competent authority.

Under the terms of the said law, the right to file petitions, complaints or claims may be exercised individually or collectively, and it also covers any legal persons legally incorporated.¹

Intending to denounce the illegality of the charges made by the unions, the individual or interested person may submit a written complaint to the President of the Assembly of the Republic, which will be reviewed by the Committee on Petitions, Complaints and Complaints.

After the examination, the Petitions, Complaints and Claims Committee shall submit an analytical report to the President of the Assembly of the Republic, proposing the treatment to be given to the complaint presented.²

Through a presentation to the Petitions, Complaints and Claims Committee of the Assembly of the Republic of Mozambique, it could be requested that this entity should express its opinion on the legality of the charging of fees by the trade unions for the fulfillment of obligations arising from the law, alleging that such practice is detrimental to employers who are obliged to spend large sums of money so that they can, for example, obtain the opinion from the union in the process of hiring foreign citizens.

Complaint to the OAG

Under article 236 of the CRM, in conjunction with article 4 b) and article 14 a), both of Law 4/2017, of 18 January (Organic Law of the Public Prosecutor's Office), it is incumbent upon the Office of the Attorney General to ensure compliance with the law.

As the OAG is responsible for controlling the legality and compliance with the law, one of the solutions that could be adopted for this particular case is reporting to the OAG, which refers to the illegality of the fees currently charged by unions to employers for the fulfilment of the obligations required by law.

Once the report has been received and the alleged illegality is verified, the OAG must inform the unions of the illegality of the charging of these fees and invite them to refrain from these charges, in accordance with the law.³

If the unions refuse to comply with the communication made to them for the purpose referred to in the previous paragraph, within the required period, the OAG may appeal to the courts to demand compliance by the trade unions.⁴

Request for an authentic interpretation of the norm in article 140 (2) of the Labour Law

Another solution to be considered for reviewing the current scenario would be to appeal to the Assembly of the Republic of Mozambique to present its interpretation of the meaning and scope of the norm contained in Article 140 (2) of the Labour Law, as regards the prerogative by the Law to trade unions and employers' associations to enjoy the right to raise funds. The question arises as to whether, with that provision, the legislature intended to say that trade unions and employers' associations could provide services of an economic nature to employers or whether the provision of those services should be confined to their members alone or to the working class.

In the case of a norm contained in a law, the request for its interpretation must be addressed to the entity that issued it; the ARM.

Appeal to judicial institutions

Appeal to a judicial court is also a solution to be considered for the resolution of the case under review. Thus, it is permissible to bring proceedings against a specific trade union which has charged that fee in a particular case.

In order to implement this solution, it would be necessary for the employer that has been subject to these charges to appear in the action as the author of the same. To this end, an Action for Simple Negative Assessment could be submitted to the court, whereby the court would be required to order the union to refrain from charging fees for the issuance of opinions required from them.

Conclusion

Unlike the countries researched in the comparative law on this subject, we find in Mozambique the absence of a specific law regulating trade union activity, which creates difficulties in determining the trade union's limits in defending the interests and rights of the working class.

The introduction of a law on trade unions, which would be more comprehensive than the current LL with regard to the work of the trade unions, could help clarify the shadow zones on trade union activity.

The law on trade unions could be based on Law No. 23/91 of 31 December, which once regulated trade union activity in Mozambique, covering matters not included in that law and which are not included in the LL, such as a clear indication of services that can be provided by trade unions, fund-raising mechanisms and trade union competencies.

Finally, as part of the current LL review process, the involvement of trade unions in the process of hiring foreign nationals could be withdrawn, with the employer having to prove the pertinence and necessity of hiring, taking into account the availability at national level. The same applies to cases of request of opinion in disciplinary proceedings, termination of employment contracts or dismissal, approval of internal regulations or internal policies, among others, and the only requirement should be a communication to the union, which would exercise its duty of defense of rights and guarantees of employees in the interest and for the benefit of the same.

At this point, we find that the problem of this issue goes beyond the mere dimension of the legality of the charging of fees and alerts us to the need for greater awareness of the legislation and its application as an important step in the construction and consolidation of any Rule of Law.

The article was also published in the SAL & Caldeira Advogados LDA Newsletter No. 37. Access the article. It is reproduced with permission of SAL & Caldeira Advogados LDA.

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¹ Nos 3 and 4 of law no. 26/2014 of 23 September
² bid No. 1 of article 19
³ Article 6(1) of the law no 4/2017 of 18 January - Organic Law of the Public Prosecutor's Office and Statute of Magistrates of the Public Prosecutor's Office.
⁴ Ibid al g) of article 4