practice area articles
By Gordon Barr, Laya Al Hareeri, Roxanne Vesuvala and Ghazal Hawamdeh
Back to International Employment Law
KEY DEVELOPMENTS FOR 2020
Increased expat fees
The 'expat fee' is payable by employers for their expatriate employees and is collected on the issuance and renewal for work permits. As of January 2020, the fee for 2020 has increased to SAR 8,400 for each expat employee where the number of expats does not exceed the number of Saudi employees, and SAR 9,600 where there are more expat employees than Saudi employees.
Changes to Saudisation
Several Saudisation changes have been made to the labour market, particularly in relation to the Nitaqat program which categorises companies by colour, depending on their fulfilment of Saudisation targets. Saudisation of the dentistry profession has now become a requirement and was implemented in two phases, with the first phase requiring 25% of roles to be filled by Saudi nationals by 26 March 2020, and the second phase requiring 30% of roles to be filled by Saudi nationals by 20 August 2020. The penalties for non-compliance include the suspension of services with the Ministry of Labour and Social Development, such as the issuance of visas and work permits. The next significant change is the elimination of the 'yellow category' from the Nitaqat program, which means that all companies that were in the 'yellow category' will automatically be transferred into the ‘red category' and will be considered non-compliant with Saudisation targets until their rating improves. As a result of these changes, these companies will suffer from further penalties such as being prohibited from renewing the work permits of their expatriate employees.
Rules on the employment of women
Women in employment have continued to be an area of focus for the Government with the issuance of Ministerial Resolution No. (39860), which set out a number of new rules. The key rules are the following:
- defining night shift work by specifying the hours over which it will apply (6 pm to 6 am) and the type of work that can be undertaken (e.g., health or charitable work, the media, etc.);
- making it unlawful to treat women differently to men when it comes to paying for work of equal value;
- requiring women to wear modest attire;
- making employers directly responsible for creating a suitable working environment for women;
- prohibiting privacy between men and women; and
- prohibiting women from working in establishments designated for men only, and vice versa.
One addition for KSA is an amendment to Article 27 of the Executive Regulations of the Labour Law, which introduced a concept of flexible working for Saudi nationals. From July 2020, a new Government program has regulated the flexible employment of Saudi national workers and wages are now calculated on an hourly basis. Employers are required to sign an electronic contract and register the Saudi worker with the General Organisation for Social Insurance. Individuals are allowed to work part-time for up to 95 hours per month for a single employer and will be counted as one-third of a full-time employee in the Nitaqat system for their employer.
KEY DEVELOPMENTS FOR 2019
New Anti-Harassment Law
The Anti-Harassment Law which came into effect on 10 June 2018 and makes it a criminal offence (punishable by a fine and/or imprisonment) for anyone to harass a person by way of a statement, an act or signal of a sexual nature by whatever means, including the use of modern technology.
It is a wide reaching piece of legislation that applies to both the public and private sector, and specifically in the workplace. The law requires employers to develop measures to combat harassment in the workplace by putting in place mechanisms to receive and investigate complaints, and to raise awareness amongst employees of the measures that will be taken to deal with harassment. Employers are also required hold their employees accountable if they breach any provisions of the law.
The severest penalties (imprisonment for up to 5 years and a fine of SAR 300,000) are reserved for harassment in the work environment and in cases where the harasser has direct or indirect authority over the victim. Additionally, the law treats any accomplice to the harassment in the same way as the harasser by subjecting them both to the same penalty.
Tenancy agreement required to issue and renew work permits
The Ministry of Labour and Social Development and the Ministry of Housing jointly announced (pursuant to Ministerial Decision No. 292 dated 16/05/1438H from September 2018) that a tenancy agreement authenticated by the Ministry of Housing will be required for work permit renewals. Authentication will be carried out through the e-platform 'Ejar' by which lease agreements will be registered with the Ministry of Housing. Only contracts prepared in a template provided by Ejar will have legal and administrative effect.
Initial work permit applications will also require a tenancy agreement but the implementation date for this new requirement for first-time applicants has not yet been announced.
The change is likely to impact the overall time necessary to complete the immigration process in Saudi Arabia. It will add to the costs of obtaining employment status and will likely complicate matters for those who share accommodation.
Saudisation in the retail sector
In January 2018, the Ministry of Labour and Social Development (MLSD) announced that 12 sub-activities in the retail sector will be reserved for Saudi nationals as part of its ‘Total Saudisation’ program. This follows the Total Saudisation in the car rental and mobile phone sales and repair sectors that occurred in previous years. However, unlike these sectors, which experienced 100 per cent Saudisation, the MLSD has made it clear that employers are required to ensure that not less than 70 per cent of the affected roles are reserved for Saudi nationals. These new restrictions in the retail sector were implemented in phases from September 2018 to January 2019.
KEY DEVELOPMENTS FOR 2018
Revised Saudisation Policy
Employers will need to reassess their compliance with Saudisation due to the revision of the Nitaqat regime which came into effect on 3 September 2017. The revision has created new employer sizes (such that employers with fewer employees, 6 or more, will be caught), redefined sector activities and changed percentage quotas.
Labour Law Penalties
Employers will be subject to the following fines for violation of employee rights:
- SAR 25,000 (approx. USD 6,666) for registering Saudi national employees with the General Organisation for Social Insurance (“GOSI”) without their approval;
- SAR 20,000 (approx. USD 5,333) for recruiting expats to jobs reserved for Saudi nationals;
- SAR 10,000 (approx. USD 2,666) and closure of the establishment for 1 day where a male expat is employed in a role reserved for Saudi nationals;
- SAR 2,000 (approx. USD 533) for holding an employee’s passport without his/her consents;
- SAR 5,000 (approx. USD 1,333) for employing a worker without a contract, or for failing to provide a copy of the contract or having it written in Arabic; and
- SAR 5,000 (approx. USD 1,333) for not complying with the conditions of a training contract, or for not maintaining employee records, including names, salaries, fines, attendance and medical records, or for withholding in full or part the employee’s salary.
In addition to the above fines, the Ministry may also close the employer’s establishment for up to 5 days.
Mass Termination of Saudi National Employees
The Minister of Labour issued a Resolution on 30 January 2017 which prohibits the “mass termination” of Saudi nationals for any reason that is attributable to the employer (e.g. redundancy), except in cases of bankruptcy or dissolution. Where an employer wishes to make such mass terminations, it is required to give at least 60 days’ notice to the local labour office and submit a feasibility study for its consideration and approval. The Resolution applies to employers with 50 or more employees who propose to dismiss Saudi nationals who comprise at least 1 per cent of the total workforce or 10 Saudi employees within the period of 1 year from the dismissal of the last Saudi national employee.
All employers in the private sector with 50 or more employees must follow the process set out by the Minister of Labour and Social Development (“MLSD”) for “mass termination” of Saudi nationals. Employers failing to comply will be subject to penalties that will mean a withdrawal of the Ministry’s services in relation to the issuance and renewal of visas for expat employees.
KEY DEVELOPMENTS FOR 2017
Saudi nationals given additional protections in the private sector
It is expected that the trend towards increased Saudisation in the private sector will continue into 2017. The Ministry of Labour is due to implement a new version of the Saudisation program called ‘Mawzoom’ with the aim of increasing employment rate, helping Saudis to get high-salaried jobs, increasing the number of female workers in companies and ensuring job stability for Saudis. For all employers, the emphasis will shift from simply counting the numbers of Saudis employed to also considering other factors, such as the average salary paid to Saudi employees, the percentage of women employees, time spent in employment, and the percentage of Saudis employed in the highest salary bracket in the organisation.
The KSA government has also been considering steps to limit the number of work visas granted or renewed for expatriates. In October 2016, the Ministry of Civil Service did not renew 478 visas for expatriates working at King Saud University (who had spent more than 10 years in their position). The Ministry has suggested that it is considering counting expatriate workers aged 60 or above as two workers for the purposes of Saudisation and this proposal could be implemented in 2017.
Finally, as part of Vision 2030 announced in the second half of 2016, the KSA government proposed introducing a green card system for expatriates. There is a possibility that this could be introduced in 2017, but it seems unlikely.
KEY DEVELOPMENTS FOR 2016
Extension of wage protection scheme
In February 2016, the Wage Protection Scheme (“WPS”) was extended to employers with 11 to 100 employees. The WPS system makes it mandatory for employers to transfer salaries into employee’s accounts and ensure that employees are being paid in a timely manner and as agreed upon in their employment contracts. It is being rolled out in Saudi Arabia in phases.
Saudisation in telecommunication industry
Resolution No. 1592 was announced in March 2016 and stated that all work in the activity of the sale and maintenance of mobile phone devices and accessories would be restricted to Saudi nationals. Employers in the mobile phone industry needed to replace 50% of their expatriate employees with Saudi national employees by 6 June 2016. By 3 September 2016, employers in the mobile phone devices and accessories market had to have a 100% Saudi national workforce.
Various legislative changes impacting employment contracts and the disabled
Temporary employment contracts that continue beyond 90 days will become permanent employment contracts (subject to all provisions of the labour law).
There is also a standard form employment contract which contains obligatory clauses to be included in all employment contracts.
Additional changes include the ability to extend probationary periods, the maximum overtime hours which can be worked each year (limited to 720 except where employee agreement has been obtained), provisions relating to sick leave whilst employees are on annual leave, and provisions relating to expatriates and sponsorship.
Employers must not retain the passport of non-Saudi workers without written consent.
Additional protections for disabled persons, including requirements in respect of working conditions, facilitating access and the right to request modifications to enable disabled persons to perform the duties of their role.