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Part E: Local Development, Labour, Health and Safety - 40. Local Development | 40.1 Local Employment and Training

Local employment and training refers to provisions that encourage or require mining license holders to prioritize the hiring, professional development and training of local individuals. Designed to maximize job creation from mining, these provisions may also address the need for transfer of skills and technology, recognizing the limited technical expertise present in some countries and ensuring that knowledge transfer takes place during the life of mining projects.

To fulfil this aim, governments are encouraged to require companies to do some if not all of the following: use local employment for unskilled labour; hire local individuals for skilled positions and managerial positions at increasing levels over time; and train local individuals, including through internship programs, scholarship programs etc. “Local” can be progressively defined as impacted communities, sub-regional, national regional and continental.

While the obligation on local employment and training should be clearly stated in law as obligation, details concerning specific targets, percentages, and schedules can and should be spelled out in more details in regulations and contracts to allow for flexibility in adjusting requirements as local capacity develops. Laws can also require mining license holders to submit local content plans where they commit to certain targets and percentages, which are updated periodically to account for the progressive availability of local skills. Note that monitoring compliance with specific targets and percentages, as well as local content plans requires a good degree of government capacity. Obligations should be specific; reportable and adjustable. In that regard, aspirational or generic/rigid provisions appears difficult to enforce or implement. Targets and schedules should be supplemented with processes that encourage interaction between the community and company and local government to enhance the capacities needed to achieve, or even exceed, the objectives. Finally ensure consistency with relevant national laws (e.g. labour, education) as well as any regional or international laws.

40.1 Example 1:

Article [_]

(1) Citizens of [Country] possessing the necessary qualifications and experience shall be given preference for employment in all phases of operations under a Mineral Right, and in accordance with the national labour laws. Such priority shall progressively apply to citizens of member states of [Sub regional Community] and citizens of member states of the Africa Union in accordance with national and regional labour laws as applicable. The burden of proof shall be on the employer.

(2) A holder of a mining right shall not import unskilled labour for the carrying out of any of its operations undertaken under the mineral right.

(3) A holder of a small-scale mining licence or large-scale mining licence shall carry out a scheme of training and employment of local employees in each phase and level of operations taking into account the requirements of safety and the need to maintain acceptable standards of efficiency in the conduct of the operations.

(4) The training programme shall provide appropriate instruction and training to ensure the advancement of employees of [Country citizenship] in the skilled technical, supervisory, administrative and managerial categories.

(5) A holder of a small-scale mining licence or large-scale mining licence shall submit an annual written report to the [Regulating Authority] describing the number of personnel employed, their nationality, their positions and the status of training programmes for citizens of [Country].

(6) Failure by a holder of a mining right to comply with the provisions of subsection (3), (4) or (5) shall be regarded as a material breach and if such person is the holder of a small-scale mining licence or large-scale mining licence, the licence may be suspended or cancelled.

Annotation

Drawn from Sierra Leone’s mining law (2009), this provision is noteworthy because it stipulates the best practice that all unskilled labour positions must be given to nationals (i.e. such positions cannot be filled by expatriates).There are also reporting requirements to monitor compliance with these requirements and heavy penalties in case of non – performance of obligations. It is also noteworthy that the provision refers to the application of national labour laws, which underlines the obligation of foreign investors to respect national law.

However, it would be useful to clarify the criteria of a non-compliance to reach to a “material breach” (level, frequency, etc.) and escalated specific penalties for different level of non-compliance (from suspension to cancellation).

40.1 Example 2:

Article [_]

(1) Holders of mining titles or permits are to abide by all local labour laws. Said holders and their suppliers and sub-contractors are to give priority, where there are equal qualifications and without any distinction as to sex, to managerial staff [who are Citizens of the Country] who have the required skills to effectively manage mining operations.

(2) Businesses shall submit a plan for training local managerial staff, so as to gradually replace expatriate staff, to [the regulatory authority].

(3) Businesses shall be obliged to comply with increasing quotas for local employment according to various levels of responsibility. A decree by [the regulatory authority] shall establish the classifications for positions and the required quotas for local employment, according to the life cycle of the mine.

(4) [The regulatory authority] is to receive an annual report from businesses on the status of the implementation of the requirements relating to the training, employment and promotion of local staff, and the annual report shall be published in national newspapers, together with the training plan referred to above, in paragraph (2).

(5) Employment contracts for foreign workers in the mining sector are to be approved by [the regulatory authority], under the conditions specified in a joint order from the [regulatory authorities].

Annotation

Drawn from Burkina Faso mining law (2015), this provision is noteworthy at several levels: First, the local employment requirement applies not only to the mining company but also to its sub-contractors. Second, the provision refers to the obligation of foreign investors to respect labour law and to gender issue. Third, it requires the submission by the licensee of local employee training plan, and refers to a decree that will provide details on positions and progressive quotas for each life cycle of the mine. This allow to set out obligations specific to each mine.

Finally, there is an annual reporting requirement on implementation of license local employment and training plan. This is essential to ensure good government monitoring of companies’ obligations. But this obligation is not coupled with annual meeting requirement. Annual meetings requirements give opportunities to discuss and design responses to success and failure.

An additional requirement on publication of the report would contribute to maintain the social license to operate vis-à-vis local communities.