Tag: Employment

Now that the Ministry of Human Resources and Emiratisation has issued the new regulations addressing part-time employment, let us take a closer look at what this means.

 

The new measure is Ministerial Resolution 31 of 2018. It does not address part-time work as such, but rather part-time work for someone other than the employee’s regular employer. Before this new measure was promulgated, the Labour Law accommodated part-time work for an employee working for only a single employer. Nothing in the Labour Law prevented an employee from working, say, 6 hours in lieu of 8 hours a day, as long as the employer agreed.

 

But a problem arose when an employee sought another job outside normal working hours. The laws of the UAE require that a person may be employed only by the party that sponsors the employee’s labour permit. Working for a party other than the sponsor of one’s labour permit presents multiple violations, on the part of each of the two employers and on the part of the employee.

 

The Ministry had procedures for granting approvals on a case-by-case basis for this kind of part-time employment, provided that the employee’s “regular” employer issued a non-objection certificate. But now it appears that the Ministry will issue approvals on a more routine basis.

 

The new Resolution applies to an employee who is hired as a part-time employee, with working hours of less than 8 hours a day and 48 hours a week. (There is scope in the Resolution for a temporary increase up to 60 hours per week when necessary, provided that the Ministry consent to the same based on the employee’s request, and provided that employee be  given at least one day off per week.) The new Resolution applies only to employees at skill level 1 or skill level 2. Skill level 1 employees hold bachelor’s or master’s degrees and are employed in professional positions. Skill level 2 employees hold technical diplomas or certificates and are employed in technical or supervisory positions.

 

When an employer specifically hires an employee on such a part-time basis, the relationship is memorialized by a form of part-time employment contract promulgated by the Ministry. A part-time employee serving under such a contract may work on a part-time basis for a second employer, provided consent for the arrangement is obtained from the Ministry. Each employer remains responsible to pay to the employee the salary agreed in the applicable employment contract. The primary employer remains responsible for the employee’s statutory benefits such as annual leave and end of service gratuity.

 

An employer who hires an employee on this basis as a principal employer must therefore be aware that the employee will be able to seek other part-time employment with the consent only of the Ministry. The employer would not be able to prevent the employee from obtaining part-time employment elsewhere by imposing non-compete or confidentiality provisions. Accordingly, this would not be an appropriate employment relationship for an employee that had access to significant employer or client data or other intellectual property.

 

Although the new Resolution will only apply to a small portion of the workforce in the UAE, the additional flexibility that the Resolution introduces must be welcomed. ■

A new requirement will be introduced shortly that will affect all applications for employment visas. Beginning 4 February 2018, a Good Conduct and Behavior Certificate must be submitted along with the other supporting documents when an employer seeks to sponsor a residence visa for a new employee who is not a UAE national. It appears that the requirement will apply throughout the UAE, including the nation’s many free zones.

 

Like any other foreign document, the prospective employee’s Good Conduct and Behavior Certificate must be notarised in the country of origin and thereafter authenticated up to that country’s Ministry of Foreign Affairs, the UAE Embassy for that country, and finally by the UAE Ministry of Foreign Affairs and International Cooperation. This authentication process often consumes several weeks.

 

In many countries, a Good Conduct and Behavior Certificate may be obtained from the concerned national law enforcement authorities. Here in the UAE, the Ministry of Interior issues such Certificates in respect of UAE nationals and residents, pursuant to a formal and recognised application process. However, many countries do not have central law enforcement authorities. For example, in the United States, a Good Conduct and Behavior Certificate (or a “Police Clearance Certificate”) would be sought from the local municipal police.

 

The Certificate must be issued in the employee’s home country or the country where the employee resided for the five years prior to the application. The Certificate is required only in respect of an employment visa application. It is not required for visas for any of the employee’s dependent family members, nor is it required for other types of visas such as transit and visit visas. Presumably, the new requirement will not apply to visa applications that have already been approved by the authorities. It is not clear whether the new requirement will apply to pending applications that have not been approved. ■

 

A number of recently announced initiatives could introduce potentially significant changes to the rules governing the workforce in the UAE.

 

Earlier this year, the Ministry of Labour promulgated Ministerial Resolutions Nos. 764, 765 and 766 of 2015. According to the reports of Ministry of Labour spokesmen that appeared in the local press, the new resolutions were designed to deter a number of undesirable practices. Chief among these was the practice by recruiters of luring potential employees to the UAE with attractive job offers, only to change the terms of employment when the new recruits arrive.

 

Specifically, Ministerial Resolution No. 764 of 2015 requires that an employee sign an offer letter in advance of being recruited and that the signed offer letter support the application for the employee’s residence visa and labour permit – an application that the employer must submit to the concerned authorities in the UAE. A signed offer letter must also support an application to hire a new employee from the local labour market.

 

The new Resolution not only ensures that the employment contract will be consistent with the original offer letter. It also ensures that the employment contract must be followed in all respects. As regards employers that maintain collateral agreements, the Resolution provides that, “No new clauses may be added to the stated contract unless they are consistent and comply with the Ministry’s legal requirements, do not conflict with other clauses of the standard contract and are approved by the Ministry.”

 

Of course, many employers use international employment contracts and detailed HR policies to supplement the brief standard employment contracts that are required by the Ministry of Labour. Provisions in such collateral documents that are inconsistent with the official registered contract would be unenforceable. It could now be the case that such collateral terms will be unenforceable if they are not approved in advance by the Ministry of Labour.

 

Resolutions Nos. 765 and 766 facilitate the transfer of employees within the UAE. They do this by providing, in Resolution 765, clear criteria as to when the authorities may deem an employment relationship to have ended. Ending an existing employment relationship is a pre-requisite to allowing an employee to seek work with another employer. Of course, most employment relationships end with the routine cancellation of an employee’s labour permit and residence visa, a process that is not disturbed by the new resolutions.

 

Specifically, Resolution No. 765 provides that the employment relationship ends if:

 

• The employer misses payroll for 60 days or otherwise fails to meet its contractual and legal obligations to its employees.

 

• The employer becomes inactive, provided that this is verified by a labour inspection and provided further that the employee reports the same to the Ministry.

 

• The employee files a labour complaint with the Ministry, which is referred to court, which in turn pronounces a final ruling in favor of the employee awarding the employee no less than two months’ salary, or indemnification for arbitrary or early termination, or other benefits denied by the employer, or end of service gratuity.

 

Resolution 766 addresses the conditions under which an employee may transfer from one employer to another. It was previously the rule (with limited exceptions) that an employee would have to complete 12 months of service with an employer before he would be eligible to transfer to another employer. This general provision has now been reduced to six months.

 

Other initiatives also have an impact on the labour market. A Federal Law enacted this year, Federal Decree-Law No. 2 of 2015, is designed to criminalize acts of discrimination and hatred. Although not expressly directed at the workplace, this would apparently criminalize discriminatory hiring practices, if they were based on distinctions of religion, creed, doctrine, sect, caste, race, color or ethnic origin.

 

As a final matter, the requirement for employer provided medical insurance coverage is being introduced in phases in the Emirate of Dubai. Coverage was imposed on employers with more than 1000 employees in 2014, and employers with between 100 and 1000 employees in 2015. All other employers will be subjected to the same requirement by the end of June 2016. ■