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Decree 19/2011 of 6 December was published in the official Portuguese gazette (Diário of the República de Portugal) and approved the Convention on Social Security between the Portuguese Republic and Republic of Mozambique (the “Convention”). This document, which was signed in Lisbon on 30 April 2010, did not come into effect immediately in the Mozambican legal system, because it requires ratification by the Mozambican Parliament.
The Convention is a response by both Governments to keep up with the growing exchange of workers. This growth has given rise to a series of challenges relating to social security benefits – for salaried workers and self-employed workers, including the schemes for voluntary maintenance of contributions – in the event of sickness, maternity, disability, old age and death.
The Convention has not made any fundamental changes to the social security systems of each country. Instead, it maintains the systems in force in each country and limits itself to establishing a series of mechanisms to facilitate, coordinate and integrate both systems. This makes it possible to provide social protection to emigrant workers and their families, under conditions of equality and reciprocity between the two countries.
Five years have now passed since the Convention was signed, and the Assembly of the Republic of Mozambique (the Parliament) has taken the next step to put it into effect in the Mozambican legal system. It did this, on 9 November 2016, by approving the Decision that ratifies Convention on Social Security between Mozambique and Portugal.
The Convention has a number of guiding principles, in particular, the principle of equal treatment, which is set out in article 3. This principle is the basis for a significant reduction in the disparities and barriers that have the potential to prejudice Social Security beneficiaries in certain situations. However, article 7 of the Convention prohibits any improper accumulation of benefits and article 7(1) addresses the situation of various benefits of the same nature being paid for the same period.
As the application of the provisions of the Convention involves two countries, article 8 sets out the general rule to determine the legislation applicable in any given case. Under this article, people covered by the Convention are exclusively subject to the legislation of the Contracting State where they work. This rule applies even if their permanent residence in another State, or if the employer has its main place of business or domicile in this other State.
However, the following rules determine the applicable law in exceptional situations:
Sickness, maternity, paternity and adoption
Article 12 of the Convention provides that, for the purposes of acquiring, maintaining or recovering the right to benefits, if a worker was successively or alternately subject to the legislation of the Contracting States, the insurance periods completed under the legislation of one of the Contracting State are added up, if necessary and as long as they do not overlap, as if they had been completed under that State’s legislation.
Invalidity, old age and death
a) Articles 15 and 16 of the Convention provides that, in the Portuguese Republic, the competent authority must calculate the amount of the benefit under the applicable legislation, directly and exclusively based on the periods completed under this legislation;
b) Under articles 15 and 16 of the Convention, in the Republic of Mozambique, the benefit is calculated based on the total period and by establishing the proportion between the period completed under its own legislation and the total period.
Article 17 of the Convention provides that, for the purposes of acquiring, maintaining or recovering the right to death benefits, if the deceased worker was subject, successively or alternately, to the legislation of the Contracting States, the periods of insurance completed under the legislation of one of the Contracting States are considered by the other Contracting State, if necessary and as long as they do not overlap, as if they had been completed under the latter State’s legislation.
Under article 20 of the Convention, workers who are covered by the Portuguese legislation are entitled to the unemployment benefits provided for in this legislation, under the same conditions as Portuguese nationals.
Benefits for family, disability and dependence expenses
Article 21 of the Convention provides that workers who are covered by the Portuguese legislation are entitled, in relation to family members who are resident in the Republic of Mozambique, to the benefits provided for in this legislation as if they were resident in Portugal, provided they meet the requirements for these benefits to be granted.
Benefits for accidents at work and occupational diseases
Article 23 of the Convention provides that Mozambican workers who are covered by the Portuguese legislation are entitled to the benefits for accidents at work and occupational diseases provided for in this legislation, under the same conditions as Portuguese nationals.
The entry into force of this Convention brings multiple benefits, as it allows communicability between the social security systems of both countries. It also based on the various principles aimed at establishing and maintaining a single Social Security contribution career, regardless of whether the worker definitively leaves the country where he or she works and returns to his or her country of origin.
1 See article 9 of the Convention.
2 See article 10 of the Convention.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
By Amina Abdala and Télio MurrureSource: Further Africa / TTA Advogados