Monday, January 16, 2017
Wednesday, January 11, 2017
Monday, January 9, 2017
Wednesday, January 4, 2017
Board Members in Public Joint Stock Companies: Amending their Responsibilities and Election Provisions
- S/he holds 10% (ten percent) or more of the shares of the company, company’s parent company, or company’s affiliates or sister companies.
- S/he is a representative of a corporate body holding 10% (ten percent) or more of the shares of the company, company’s parent company, or company’s affiliates or sister companies.
- In the two years preceding candidacy, s/he used to hold an executive position or was an employee in the company, company’s parent company, or company’s affiliates or sister companies, was employed by any party contracting with the company (including independent auditors, key suppliers, and NGOs that received finance representing more than 25% of its annual budget) or used to hold about 20% of the shares of any of the abovementioned parties.
- S/he serves as a member on the board of the company’s parent company, affiliates, or sister companies.
- S/he is a first-degree relative to any of the board members in or key management personnel of the company, company’s parent company, or company’s affiliates or sister companies.
- S/he has a material, economic or financial relationship with the company or any of the company’s sister, affiliate or owned entities.
Monday, January 2, 2017
Monday, December 19, 2016
What is PASI?
The Social Security Law and its amendments promulgated by Sultani Decree 72/91 came into force on July 1, 1992 (the “Social Security Law”). Article 5 of the Social Security Law provides that a public authority shall be formed under the name of Public Authority for Social Insurance (“PASI”) with administrative and financial independence, and is responsible for the implementation of the Social Security Law.
The Social Security Law aims to provide security against old age, disability, death or occupational injury and disease, thereby ensuring a social stability for the insured and their dependents. The Social Security Law only applies to Omani nationals employed in the Sultanate of Oman.
What are the employer’s contribution and obligations?
Under the Social Security Law, the employer is solely responsible for the payment to PASI in respect of each relevant employee, and the payments must be made on the basis of the actual wage drawn by that employee. Currently, the employer is required to contribute a total of 11.5% to PASI (10.5% of the employee’s gross salary, plus an additional 1% for occupational injuries and disease). The employee is required to contribute an amount equal to 7% of its gross salary.
Each company in Oman has online access to the PASI scheme (which sets out the details of each Omani employee and his or her salary). As a standard practice, in January each year, PASI updates the contribution that the employee and employer are required to make based on the standard minimum 3% increment to the gross salary. However, if the employer grants an increment of more than 3%, it is the employer’s obligation to notify PASI of the new salary by updating the employee’s salary details online. Generally, PASI would require the company to amend and notify PASI of the employee’s salary within a period of one month from implementing the revised salary.
Is it compulsory for companies to comply with the rules under Social Security Law? Or can companies provide their own scheme?
Article 16 of the Social Security Law requires the employer to undertake payment of the full social security subscriptions to PASI, and the employer is solely responsible for payment of these subscriptions, and may deduct the employee’s contribution from the secured employee’s salary.
However, if a company has a workers savings fund scheme by which the Omani employees receive more than the PASI entitlement that the employer is required to contribute (i.e., the contribution made by the employer is equivalent to, or more than, the 10.5% of the gross salary to be contributed by the employer), then such scheme is acceptable and the employer is exempted from making PASI contributions on behalf of its employees. However, if it falls below what is defined under the Social Security Law, then it is important to note that the company may be foreseen as breaching the Omani Labour Law and the Social Security Law.
Article 7 of the Social Security Law provides that an employee has one year from the date of leaving to bring any claim regarding PASI. In such case, the concerned employee will have one year from when he or she leaves to raise a grievance against the company.
What happens if the employer defaults?
Article 17 of the Social Security Law provides that the employer who is subject to the law, but does not pay the contribution according to actual wages of the employees, or does not pay the insurance contribution for all or some of his employees, or does not pay the end of service benefits or refuses or delays the payments of the due contribution at the time, then the employer shall be obliged to pay to PASI an additional amount estimated at 13.5% of the contribution which the employer failed to pay, or of the amounts which are due for end of service benefits, unless there are unavoidable reasons, to be evaluated by the Board of Directors of the PASI.
In addition to the penalty imposed under Article 17, PASI also sets out an additional penalty under Article 74 of the Social Security Law, whereby if the employer violates any of the provisions of the Social Security Law, the employer shall be punished with a fine of not less than OMR 100 and not more than OMR 500, and the limits of the punishment will be double in case of repetition of the violation, and the fine multiplies according to the number of the employees with respect to whom the employer commits one or more violations.
Therefore, it is important for a company to comply with PASI rules. If the company has revised the employee’s salary, it is the responsibility of the company to notify PASI of the new salary and undertake to pay the full subscription to PASI accordingly.
Monday, December 12, 2016
General overview of intellectual property in Oman
Intellectual property (“IP”) protection is considered crucial for every business. Businesses now operate in an increasingly competitive marketplace, thus protecting and securing its IP is essential for a business’s future success. By having knowledge about IP, businesses can shield themselves from infringing others’ IP rights and avoid cost and legal action. Moreover, IP provides individuals with a sense of protection and encourages them to engage in more creative ventures.
The World Intellectual Property Organisation (“WIPO”) defines IP as “creations of the mind, such as inventions, designs, literacy and artistic works, names and images used in commerce.”
While it’s argued that the Omani courts may struggle with IP cases, the Omani government has initiated various steps towards IP protection, from the implementation of domestic laws to the participation in conventions and international treaties. The Sultanate of Oman is a member to several international treaties, conventions and protocols including: The Gulf Cooperation Council, The World Trade Organisation, The World Intellectual Property Organisation, the Berne Convention, the Paris Convention, the Madrid Protocol and the Patent Cooperation Treaty.
In addition to the international treaties and conventions listed above, the Sultanate of Oman has enacted several domestic laws protecting IP rights.
The applicable laws in Oman
The Industrial Property Rights Law (“IPRL”) promulgated by Sultani Decree 67/2008 governs the protection and use of patents, trade marks, trade secrets, utility models, industrial drawings, geographical indicators, topography of integrated circuits and protection against unlawful competition in the Sultanate. Ministerial Decision 105/2008 sets out the Executive Regulations for the IPRL.
Law on trade marks
Article 36(1) of the IPRL provides that the exclusive right to a mark is acquired by registration. Article 36(2) sets out circumstances when a mark cannot be validly registered, which includes inter alia:
- if the mark is identical or similar to an extent that creates confusion or is like the translation of a mark or a well-known title in Oman in relation to identical or similar goods or services of another enterprise or if it is known and registered in Oman as regards the goods or services not identical or similar to those for which the registration of the mark is being sought, provided that the use of the mark as regard the goods or services, in the latter case, gives the impression of the presence of a link between these goods or services and the owner of the well-known mark and that such use undermines the interest of the owner of the well-known mark; and
- if the mark is identical with or similar to a mark of another owner already registered or if there is an application that precedes the registration of the concerned mark in respect of the date of deposit or date of priority as regard the same goods or services, or goods or services closely linked therewith or if they are similar to an extent that is misleading and confusing.
- The IPRL provides that civil action for infringement may be initiated within five years from the date the right holder knew or had reason to know of the infringing act. However, there is no time limit to bring a suit in case of infringing use of distinctive signs in bad faith or for unfair competition purposes.
- The IPRL sets out the remedies that the court may offer to a party whose rights have been infringed. Article 75 states that the court shall include an appropriate compensation to the possessor of the right for the infringement of his IP property right. The court may, in case of infringement of a trade mark, pass a judgement on the value of the compensation claimed or one specified by it and, while estimating the compensation value, take into account the profits made by the offender. The compensation shall, in all cases, be sufficient to undo the damage caused to the possessor of the trade mark right on account of the infringement. The Court shall, while fixing the compensation for damage for the infringement of the rights prescribed under this Law, keep in view the value of the commodity or service subjected to infringement measured against the proposed retail price or any other legal measure for the value submitted by the possessor of the right.
- The court may pass a judgement obliging the offender to pay compensation for damages related to the acts of infringement committed on or after the date on which the decision on the acceptance of the registration application, if any, was issued by publication in the Official Gazette or the date on which the registration applicant notified the offender of the contents of the application or one on which the offender came to know of the contents of the application.
- The IPRL provides that the court shall order the destruction of goods involved in infringement except in exceptional circumstances without decreeing any kind of compensation. The court shall order the destruction of substances or equipment the majority which were used in manufacturing the commodities involved in infringement or in exceptional circumstances and their disposal outside the trade channels in a manner that brings the infringement risks to the lowest level without decreeing any kind of compensation.
Deliberate infringement at a commercial level of an industrial property right shall be punishable by imprisonment for a minimum period of three months and a maximum of three years and/or a minimum fine of OMR 2,000 and a maximum of OMR 10,000. The minimum and the maximum penalty shall be doubled in case of repeated infringement.
Monday, December 5, 2016
The law of juvenile employment is one which is developing in Oman, and as such this article will first look at the international conventions which Oman has signed up to, before analysing the available domestic legislation and its enforcement which is significant in ensuring the application of available protections and securing the rule of law.
The International Labour Organisation standard
Although there is no universally agreed definition for the term “exploitative child labour,” under the International Labour Organisation (“ILO”) Convention 138 of 1973, the minimum age of employment or work in any occupation is “not to be less than the age of completion of compulsory schooling and in any case should not be less than the age of 15.” This convention, however, gave the freedom to states with insufficiently developed economies and educational facilities to specify a minimum legal working age of 14. Additionally, Convention 138 specified that national regulations may permit the employment of persons 13 to 15 years of age on light work. Such light work may include work in a family business, on a family farm, after school, and in legitimate apprenticeship opportunities. The government of Oman ratified ILO Convention 138 on July 21, 2005 to ensure the minimum protection of juvenile workers.
The Oman Labour Law promulgated through Royal Decree 11/2003 (the “Labour Law”) supplemented these existing provisions. The Labour Law establishes, by virtue of Article 75, that the minimum age for employment is 15 years, while minors between the ages 15 to 18 years are not permitted to work between the hours of 6 p.m. and 6 a.m. Minors are also prohibited from working overtime or in certain hazardous occupations. The list of jobs that juvenile workers are permitted to do is attached to Ministerial Decision 217/2016, and broadly includes salesman roles. However, there are no specific descriptions of the tasks that can be undertaken by juveniles in these occupations. Further, employers are prohibited from requiring minors to work on official days of rest or official holidays or for more than six hours per day according to Article 76 of the Labour Law. Workplaces that employ minors are required to post certain items for display, including: a copy of the rules regulating the employment of children; an updated log with the names of minors employed in the workplace with their ages and dates of employment; and a work schedule showing work hours, rest periods, and weekly holidays.
As an addition to the Labour Law, Ministerial Decision 217/2016, Article 1 provides that employers must obtain written approval from the person responsible for the juvenile’s care and upbringing. Furthermore, because juveniles compared to adults are developing physically and those children seeking employment might more commonly be from poorer backgrounds, Article 3 importantly provides that at the sole expense of the employer, they must provide a medical check before, during and until six months after the termination of service.
Perhaps in the context of juvenile employment, what is most important is that the occupation undertaken does not hinder the juvenile’s educational development. In this context, within the Labour Law there is no requirement for juveniles to have completed their compulsory education before undertaking employment, nor is there a requirement for the occupation not to affect the child’s attendance at school. Moreover, for juveniles who complete only primary education, there is no apprenticeship regime, whereby they can learn a trade and obtain a certified license through learning on the job (i.e., there is no provision which stipulates that schooling is compulsory).
The worst forms of child labour such as activities which are hazardous, arduous or corrupt morals of children may be an offence under the Penal Code promulgated by Royal Decree 7/1974 (the “Penal Code”) and prosecuted. Forced or compulsory labour by juveniles, or otherwise, is prohibited by Article 12 of Royal Decree 101/1996 promulgating the Basic Statute of the State as amended by Royal Decree 99/2011. Under Article 259 of the Penal Code, anyone who enslaves a person or puts him in quasi-slavery commits a crime that is punishable by a sentence of five to 15 years in prison. Under Article 220 of the Penal Code, the enticement of a minor into an act of prostitution is a crime punishable by not less than five years’ imprisonment.
The Labour Care Directorate of the Ministry of Manpower is responsible for the enforcement of juvenile labour laws. While restrictions on the employment of youth are generally followed, enforcement does not always extend to agriculture, fishing and rural areas where adherence to legislation is irregular. The Labour Law does not apply to workers working for family members on whom they are dependent by virtue of Article 2.2 of the Labour Law. Without further guidance, this might provide a loophole for juvenile exploitation. In practice, most employers will ask prospective employees for a certificate indicating that he or she has completed basic education, although this is not mandated.
Employers who violate the child labour provisions of the Oman Labour Law are subject to a fine of OMR 500 under Article 118 of the Labour Law. A second violation within one year can result in one month of imprisonment in addition to the fine.
Tuesday, November 29, 2016
The commercial contract is not going to plan. Can I terminate this contract for breach? Can I terminate this contract for convenience? Is terminating the contract the best option? These are common questions faced by clients in similar circumstances.
The following article seeks to provide some guidance as to some of the considerations a party should have when thinking of terminating a commercial contract.
In the Sultanate of Oman, the law of contract is governed by the Oman Civil Code promulgated by
Sultani Decree 29/2013 (the “Civil Code”). The Civil Code sets out the elements required to form a
valid contract and the rights of contracting parties as well as the rules governing termination. However, it is limited by Article 1, which states that where an issue is governed by “special” laws, those laws will apply. Special laws in this regard may include, for example, the Law of Commerce, Sultani Decree 55/1990, as amended. Nevertheless, the Civil Code itself also has provisions relating to specific contracts, such as construction contracts.
Although contracts can be brought to an end through rescission, because of misrepresentation and/or
mistake, the main focus of this article will be on bringing a contract to an end through
termination, due to breach of contract or otherwise, and will mention damages only briefly.
Termination, strictly speaking, means that unrealised future obligations owed by the parties fall
away. However, the contract does not cease to exist. That is, the primary obligations of the parties to perform the contract (e.g., to pay fees, or follow the design specified) are replaced with secondary obligations (e.g., to pay damages).
Monday, November 21, 2016
Oman Labour Law
Chapter 3 of the Oman Labour Law issued by Royal Decree 35 of 2003, as amended, (“OLL”) deals with the management of employees. Article 33 of the OLL provides that an employer is required to provide its employees with access to medical facilities in the establishment. Additionally, if the number of employees in one place exceeds one hundred, the employer shall employ a qualified nurse for providing medical aid and shall assign a doctor to visit and treat the employees at a designated place prepared for such purpose. The employer must also provide the employees with the medical treatment free of charge.
If the number of the employees is more than five hundred, the employer shall, in addition to the above, provide the employees with all other means of treatment, including the assistance of specialist doctors or surgical operations or provide the required medicine, free of any charge to employees. However, the employer is not required to pay the costs for dental, ophthalmic and maternity treatment. If the employee is treated in a government hospital or a private clinic, the employer must pay the costs of treatment, medicine and inpatient care, in accordance with the regulations and financial rules applied by the hospitals, subject to the provisions of the laws on social security insurance.
Accordingly, Article 33 of the OLL creates the legal obligation on the part of the employer to bear the expenses of the employee at a government or private hospital, including the expenses of treatment, medicine and stay in the hospital, subject to the laws in respect of social security.
Medical Insurance for Expatriate Employees
An employer is required to provide medical insurance for its expatriate employees. The employer may satisfy this legal obligation in relation to the payment of medical treatment for expatriate employees by providing medical insurance for its employees with a third party insurer, which insurer would pay the government or private hospital directly when the employee receives medical treatment at these health institutions. The employer may also opt for establishing an arrangement with particular designated medical institutions to provide medical services to its employees and the employer would then settle the dues directly with the relevant medical institution.
Medical Insurance for Omani Employees
In the ordinary course, an employer is not obligated to provide medical insurance to an Omani employee, as Omani nationals are entitled to free medical treatment at all government hospitals. Additionally, all Omani employees are covered under social insurance provided by the Public Authority for Social Insurance (“PASI”).
The Social Security Insurance Law, issued by Royal Decree 72 of 1991, as amended, (“SSIL”) provides the social security system applicable to Omani employees on permanent contracts of employment under the age of retirement. The SSIL deals with two types of security:
1. security against old age, disability and death; and
2. security against occupational injuries and diseases.
In instances of occupational injury, under the SSIL, PASI is required to directly provide the Omani employee with medical care. The employer is required to contribute towards the security against occupational injuries and diseases by paying a monthly subscription to PASI at the rate of 1% of the monthly wages of each Omani employee. Only the employer (and not the employee) shall pay such subscription to PASI.
There is no mandatory requirement under the OLL which requires the employer to ensure health coverage for the employee’s dependents (i.e., spouse and children). Article 33 of the OLL only requires the employer to provide all medical facilities to its employees with the exception of the costs relating to dental, ophthalmic, and maternity treatment.
However, if the employer has been sponsoring the employee’s dependents, the employer is not permitted under the OLL to discontinue such benefit. Article 6 of the OLL provides that an employer may establish a scheme by which its employees acquire benefits more generous than those granted by the OLL, or may provide the employee with other benefits, or may enter into agreements with them, the conditions of which are more generous than those provided for in the OLL. Article 6 further provides that if a condition in the OLL contradicts with any of the condition in such schemes or agreements, the condition that is more generous to the employee shall apply. Therefore, the discontinuation of the dependent’s coverage will be construed as ceasing a benefit that has been previously granted to the employee and thus a violation of the OLL.