Obtaining certificates of deficiency of manpower for investment projects in Cameroon
By Barristers Ferdinand Doh Galabe & Jacob A. Akuo, founding partners at Dayspring Law Firm
Job creation and the promotion of local employment are policy priorities for most governments, including the Government of Cameroon. This is evident in the enactment of several laws and regulations such as the Cameroon Labour Code (1992) and its myriad of implementing texts.
Section 27(2) of the Cameroon Labour Code requires that a contract of employment involving a worker of foreign nationality be endorsed by the government prior to commencement. Once this is done, the foreign worker can proceed to request and obtain a work permit. And even so, the work period should not exceed two (02) years renewable once.
Another important legal instrument relating to the promotion of local employment in Cameroon is the 2014 Decree relating to the conditions for recoursing to highly labour-intensive (HIMO) approaches. Section 5 of the 2014 Decree requires that whenever recourse is made to highly labour-intensive (HIMO) approaches, the use of available local human and material resources be prioritized. In addition, project owners are obliged by law to address compliance reports to the Technical Unit in charge of supervising highly labour-intensive (HIMO) public projects, as well as to the Minister in charge of employment. Section 9 further provides that, during recruitment, priority should be given to the local populations of the geographical area where the public project employing highly labour-intensive (HIMO) approaches is executed. This recruitment should be based on a prior research study by the project owner ascertaining the availability of local manpower.
Besides, you have the recently issued Minister of Employment Order No 127/MINEFOP of April 21, 2021 fixing the conditions for issuance of the certificate of deficiency of national manpower in public and private investment projects in Cameroon (which we will get into a little later).
It should be highlighted that prior to the enactment of this Ministerial Order, Section 1 of Decree n° 93/571/PM of July 15, 1992 fixing the conditions of employment of workers of foreign nationality for certain professions or certain levels of professional qualification provided that, “notwithstanding the provisions of the Labour Code relating to the endorsement of employment contracts for workers of foreign nationality, jobs such as handling workers, unskilled workers, supervisory employees or supervisors may only be entrusted to a foreigner upon presentation of a certificate issued by the labour services certifying the lack of Cameroonian workers in the specialty concerned.”
An instrument was later adopted earmarking the jobs for which foreign workers could not be recruited safe with leave of the Minister of Employment upon presentation of a certificate of lack of a Cameroonian worker in the specialty concerned. Non-compliance with the above provisions is a simple offence under Cameroon criminal law (R 370, Penal Code).
The Decree also contains a provision requiring the Minister of Employment to adopt a legal instrument fixing the list of professions concerned. However, up and until the new April 21, 2021 Ministerial Order, such a list had not been adopted.
Section 2(2) of the 2021 Order provides that, “jobs subject to the requirement of certificate of deficiency of national manpower are those that generally require either a high level of rare expertise or which require a level of qualification and aptitudes not sufficiently in supply in the local labour market, per the list of professions concerned.”
The certificate of deficiency of national manpower is issued to certify the inexistence or the numerical deficit of workers of Cameroonian nationality specialized in a specific branch or sector of activity. The very long list of professions concerned touch on all domains of activity as well as on specific branches or sectors of activity, including building and construction, transport, trade and services, mines, water and energy, information and communication technology, and agriculture, animal husbandry and fishing.
Generally, the application process goes as follows: an application for the issuance of this certificate is deposited with the competent authority and consists of documents in support of the application such as a technical document, mention of the profession concerned, the duration of the deficiency, the beneficiary entity, conditions of technology transfer by the applicant, etc. Following the filing of the application, verifications and investigations on the deficiency of the skill are conducted. These include visits to the premises of the applicant to ascertain the nature of the technical tasks required for the project/work. Where the deficiency is established, the competent authority issues the certificate to that effect. The application is processed, in principle, within one (01) month following filing.
At the end of the period of the deficiency of manpower, the competent services are required to conduct an inquiry to check whether there was actual technology transfer to local workers and whether these are able to substitute the expatriates who benefitted from the certificates of deficiency. Where such is established, the competent authority proceeds to end the deficiency and orders that a Cameroonian be employed in such a position. Otherwise, the competent authority extends the period, provided there is no Cameroonian national with such skills whether within or without the beneficiary company. The Minister has given a one (01) year grace period for companies to comply with the provisions of the April 2021 Order. This period expires effectively on April 21, 2022.
Relating to transfer of technology requirements, Section 4 of Decree No 93/575/PM of July 15, 1993 laying down the conditions for the drafting and endorsement of certain employment contracts (an implementing text to section 27(2) of the Labour Code) requires all employment contracts of foreign workers to be endorsed by the competent state authority prior to commencement of work. In laying down the formalities for the endorsement of the employment contract, section 5(2) (g) (h) and (i) provides for certain documentary requirements for applications for the endorsement of the work contract which need to be underscored. These requirements include: the filing of a copy of the contract, agreement or any other document justifying the occupation of the position by a foreigner; the filing of a plan for the “Cameroonization” of the positions concerned approved by the competent authority; as well as a detailed organization chart of the company, showing all managerial and supervisory positions, with corresponding profiles.
The entry into force of the Ministerial Order implies that one of the supporting documents for the application for the endorsement of the employment contract of foreigners will be the certificate of deficiency. While this regulation (which is prima facie protectionist) will indubitably raise a barrier on the employment of foreign workers in Cameroon, it may in return lead to a boost in local employment through creation of new job opportunities, especially following successive months of economic go-slow due to the spread of the coronavirus. Whether or not long-term and sustainable jobs growth will be born out of this policy will be mere speculation because there are no government studies to support that, and such a policy could be a double-edged sword.
For multinational companies and foreign investors who own businesses in Cameroon, this policy will help them millions in expenses on expatriate staff. In addition, there is a vigorous legal mechanism under Cameroon law to protect intellectual property assets, especially trade secrets, including but not limited to non-disclosure agreements (NDA) and robust confidentiality clauses that can be included in employment contracts, as well as unfair competition laws which may be resorted to in a bid to secure technology transfer transactions.
Role of Dayspring Law Firm
Dayspring Law is one of the leading immigration law firms in Central Africa. We provide comprehensive immigration services to our clients including preparing and legalizing letters of invitations and engagements, visa applications to the various consular offices of Cameroon globally, applying for authorization for visas upon arrival and following up at the borders to ensure the grant of the visas to clients, drafting and reviewing contracts of employment for both local and expatriate staff to ensure strict compliance with the requirements of the Cameroon Labour Code and its texts of application, preparing work permit applications and subsequent follow up, preparing residence permit applications and taking clients physically to the offices for biometric information, following up for police clearance certificates at the office of the public prosecutor for foreigners already in Cameroon, applying for exit visas, a general review of all immigration documents and advice.
Our professional network with various consulates, Ministry in charge of employment, immigration police, the Delegation General of National Security, and other actors enable us to navigate these procedures within record times due to our experience, reputation, credibility and capacity of circumvention of relentless bureaucracy and administrative bottlenecks.
We have previously published on this subject: Immigration Requirements for Foreigners Coming to Cameroon on Business or for Work