Issues in the employment laws in Mauritius in 2020 PDF

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Issues in the employment laws in Mauritius in 2020...

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Abstract..........................................................................................................................2 Introduction....................................................................................................................3 Main changes in employment law..................................................................................4 Changes in employment Law due to COVID-19...........................................................4 Issues in the Worker’s Rights Act 2019: Paternity Leave..............................................6 Death grant and status of concubinage...........................................................................7 Issues in the amended Workers’ Rights Act (WRA)......................................................8 1.

Reduced compensation for night shifts...............................................................8

2.

Reduced compensation for overtime on Sundays and public holidays...............8

4.

Mass termination of contracts to reduce the workforce....................................10

5.

Justified termination of workers’ contract.........................................................11

6.

Unjustified termination of workers’ contract....................................................11

7.

Bypassing the Commission for Conciliation and Mediation............................12

8.

No prohibition of less favourable contractual terms in the case of transfers or

undertaking...............................................................................................................12 9.

Criminal law as a façade to weakening workers’ rights....................................13

Conclusion....................................................................................................................14 References and Bibliography.......................................................................................15

Abstract This study attempts to investigate the issues of the labour legislation, the Worker’s Rights Act 2019, and the Employment Rights Act 2008 along with the amendments in 2020 due to COVID-19. The legislation has met with mitigated results, the labour laws of 2008 have replaced the labour legislations of 1971. These legislations came into force right after independence and were operational within a context. However, the evolution of the business sectors and the changes in employment are not reflected in the labour laws thus there is the need for a new legal framework. Trade unions have opposed the laws in terms of loopholes and inadequacies concerning the protection of employees. Also, people at work are not well informed of the legislation because of its complexities and numerous issues that are not looked into. The study will further recommend a new framework to better understand employee rights.

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Introduction According to D Fokkan (2002), the development of the Mauritian Labour law is covered over four periods since the abolition of slavery till today. While the practice dates back for centuries, it is the alterations during the last years that have most substantially changed the scope of Labour law, the nature of the Labour law, and the expectations of employer and employee. With Labour force as a valuable asset, the Labour law- the rights of employees, their remuneration, their leaves including maternity and paternity leave has become the utmost right that they must have in a democratic and sovereign country like Mauritius. The Workers’ Rights Act (WRA) 2019, announced in the Government Gazette on 24 October 2019, has quashed the Employment Rights Act 2008. The Mauritius government agreed to the Workers’ Rights Act 2019 which will improve conditions on hours of work, shift work, vacation leave, and for precarious workers in non-standard work. The WRA is an important legal tool that equips low-income workers with various protections, such as the right to receive union representation, the right to be fairly remunerated, the right to a minimum wage, a defense against exploitative working conditions and arbitrary termination of employment. In an attempt to control the spread of the COVID-19 in Mauritius, the government announced that the amendments to the Workers’ Right Act and Employment Relations Act have been put forward to avoid closure of businesses and keep as many jobs as possible. The Covid-19 (Miscellaneous Provisions) Act 2020 and the Finance (Miscellaneous Provisions) Act 2020 have been passed and they provide major amendments in the employment sphere. However, the trade unionists are claiming that these new amendments are not only violating the rights of workers but have also accelerate the redundancy mechanism for employees in certain sectors.

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Main changes in employment law The Workers’ Rights Act 2019 was legislated to provide a modern and broad legislative framework for the protection of workers and to provide for the matters related to it. The main changes are: 

the threshold monthly salary for workers raised from Rs30,000 to Rs50,000



there are restrictions regarding of contracts of determinate duration;



the provisions and calculation of end of year bonus was amended;



new forms of leave were initiated (such as vacation leave, juror’s leave, leave to participate in an international sport event or leave to attend court);



the provisions for the reduction of workforce were amended with the introduction of the Redundancy Board; and



Portable Retirement Gratuity Fund (“PRGF”) was introduced.

Changes in employment Law due to COVID-19 The COVID-19 (Miscellaneous Provisions) Act, 2020 has put forward certain amendments to key aspects of employment legislation in Mauritius in an attempt to ease the adverse economic effects of the pandemic on employers in targeted sectors. Some permanent measures are: 

working from home provisions have been initiated and employees can now work from home upon 48 hours’ notice from the employer;



employers who employ not less than 15 employees or have annual turnover of at least Rs25 million cannot terminate an agreement on the basis of redundancy unless the request for financial assistance has not been approved; and

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

end of year bonus provisions has been amended;

Some temporary measures are: 

an employer cannot terminate any employment relationship if the employer has benefited from the wage assistance scheme during that month;



paid time off instead of overtime payment for additional hours worked from 16 May 2020 until such further date as may be prescribed for workers, other than watchpersons, employed in manufacturing, blockmaking, construction, stone-crushing and related industries has been introduced; and



night shift allowance has been suppressed as from 16 May 2020 until such further period as may be prescribed.

The various amendments of labour law indefensibly deprive workers of their labour rights. Firstly, the changes weaken lower-income workers’ right to enough compensation, thus worsening their unequal position in relation to their employer. Secondly, they target the collective rights of those working in sectors that were cynically deemed essential to the functioning of the country during the pandemic.

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Issues in the Worker’s Rights Act 2019: Paternity Leave Paternity leave is basically a brief period of leave for the father immediately after childbirth. Its purpose is to allow fathers to assist the mother recover. Paternity leave is either provided as a separate leave measure for fathers or included in the “special leave” provisions to which all employees are entitled. According to section 53 of the WRA, where the spouse of a full-time male employee, who has been in continuous employment for 12 continuous months, gives birth to a child, the male employee shall be entitled to five continuous working days of paternity leave on full pay upon production of a medical certificate to that effect and a written declaration signed by the employee indicating that he and his spouse are living under the same roof. If the worker has been in employment with an employer for less than 12 months, the said leave will be without pay. However, 5 days of paternity leaves is just not enough. Studies suggests that fathers’ leave, men’s take-up of family obligations and child development are related. Fathers who take leave, particularly those taking two weeks or more immediately after childbirth, are more likely to be involved with their young children (Huerta et al., 2013). This is likely to have positive impact for gender equality at home, which is the basis of gender equality at work. In addition, this early involvement enhances the resources of “parental capital” available to children via quality father–child interactions, thus contributing to child development (O’Brien, 2009). Acknowledging the right of men to parenthood, as well as their responsibility to share unpaid care and household duties, will eliminate stereotypical social attitudes, resulting in greater equality for both men and women at work and at home. Many other countries around the world also provide paternity leave. In Denmark, fathers are entitled to 14 days of paid paternity leave to be taken during the 14 weeks following birth, which corresponds to the postnatal portion of maternity leave.

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Recommended law: “The employed mother or the employed father of the child should be entitled to parental leave during a period following the expiry of maternity leave”. Death grant and status of concubinage According to section 55 of the WRA, a worker who has been in continuous employment with the same employer for no less than 12 consecutive months dies, the employer shall pay his spouse the death allowance referred to in the Fourth Schedule following the establishment of a written declaration by him that he lived with the deceased under a common roof at the time of death. “spouse” is defined as the person with whom the worker contracted a civil or religious marriage and with whom the worker was living under a common roof at the time of the worker’s death. However, in Mauritius a concubine is not entitled to make any claim for damages following the death of her partner and vice versa. That interest would have been better served, by integrating the grant to people related to the deceased by adoption or ‘concubinage’. For instance, if a man lived with and supports his concubine, his concubine’s child, the concubine and the concubine’s child would be disqualified from receiving benefits. Based on the Code Civil Mauricien, the Supreme Court still maintains that concubinage does not entail the same rights as a legal marriage. This is evident in the case law: Lingel-Roy & Ors V The State of Mauritius & Anor [2017] SCJ 411; [2019] SCJ 103 The case law regarding the right of concubine, held that a concubine does not have the locus standi (right or ability to bring an action) on behalf of the other partner even though they have been living together for a long time. In the current case, a concubine initiated an action on behalf of her late partner who passed away due to medical negligence. The Court held that a concubine is not entitled to claim damages on behalf of the other partner since concubinage is not protected under Mauritian Law. 6|Page

If concubinage is eventually accepted in Mauritius, the concubine would be in a position to share certain perks that may be equal to marriage.

Issues in the amended Workers’ Rights Act (WRA) The Worker’s Right Act (WRA) is an act that concerns workers earning less than Rs 50,000 a month. This income bracket constitutes more than a third of the country’s workforce, and more generally, all other low-income workers. The amendments comprise an incontestable charge on workers’ rights. Passing unfair working conditions as a principle defeats the raison d’être of this branch of law. In this regard, the projected amendments to the WRA are conflicting. The issues are listed below: 1. Reduced compensation for night shifts Workers that perform night shifts that is, at least 5 consecutive hours of work between 6 PM and 6 AM – are no longer compensated for night shifts at the rate of 15% of their basic daily wage. Night shifts demand compensation beyond general remuneration because of the difficulties the workers face. Such shifts increase the risks of workers to health and safety issues, due to fatigue, and refrain them from family and well-being. The suppression of night allowance appears totally unreasonable, as the nature of the work is not any less dangerous in times of a pandemic. It is unfair to legislate that low-income earners do not require compensation when working at night. Incorporating such a law puts workers in an even weaker position in relation to their employer.

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2. Reduced compensation for overtime on Sundays and public holidays Unfairness is also evident in the provisions that are apply only to workers employed in the construction, manufacturing, block-making and stone-crushing sectors. For them, working overtime on Sundays and public holidays will lead to a reduced compensation from 3 to 2 times the normal rate. Moreover, employers are accorded the right to make the choice between overtime pay or impose that the worker takes time-off instead of remuneration. The motive of overtime pay is crucial to the proper regulation of employment relations and has historically been part of the lower-class struggle. Initiating an increased hourly rate for overtime work is a barrier against degraded working conditions. Meanwhile some employers may still turn to extra-contractual hours, they would need to provide adequate compensation to workers in return. It remains confusing why low-paid workers are entitled to a lower hourly rate compensation for overtime compared to other workers. The fact that these provisions definitely target industries that employ a high proportion of manual labourers, the majority of whom are on minimum wage, does not go amiss. 3. Employer’s right to withhold workers’ annual leave Amended right of employers to withhold between up to 7.5 and 14 days of annual leaves from the entitlements for both essential workers and non- essential workers. It is uncertain if this amendment applies to all salaried workers irrespective of income. As the Act holds, only employees earning under Rs 50,000 monthly can have their paid leave reduced. It conveys that an intact annual paid leave is a privilege provided only to the white-collar class, in contrast to a basic right of all salaried persons. Non-essential workers were only guaranteed 6 of the 20 days of paid leave they are normally entitled to. Paid annual leave is also fundamental of workers’ rights to time off work. This allows them to spend time with their families and for social time. 8|Page

Gradual steps in favour of longer paid leaves were the achievement of a long difficult fight by workers, in consequence this regression is such an insult to the fundamental right to time off from work. For essential workers, they are now authorized to 13.5 days of annual leave. The withdraw of their right to 20 days of annual paid leave is a move of betrayal on behalf of the politicians by revoking their acquired right to paid leave. 4. Mass termination of contracts to reduce the workforce The violation of lower-paid workers’ right to unionize is all more distressing given that it is set in the context of mass termination of workers’ contracts and is pertinent to those sectors that are essential to the functioning of the country; air traffic control, civil aviation and airport, customs, hotel services, electricity, health, hospitals, ports, radio and television, telephone, transport of passengers and goods, and water supply. The sectors are crucial to the functioning of the country. The importance of these sectors is also accordant with the interpretation of the Employment Relations Act which classifies them under “services requiring a minimum service”. Still, this did not avert our representatives from pulling apart their rights, specifically workers’ collective right to unionize. According to the Act, when companies in these sectors anticipate, in an attempt to reduce costs, mass termination of employment contracts, the Minister can decide (via regulations) to deviate from the entire legal procedures normally applicable. In contrast, before an employer would have to inform and engage in negotiations with trade unions or workers’ representatives to find resorts to the mass termination of workers’ contracts, now in these sectors, employers will skip union negotiations and be redirected to the Redundancy Board. Thus, these amendments rob the workers of the collective power, to negotiate fairer terms of termination. By depriving employers of following normal procedures, workers lose their right to have their interests defended by their trade unions, even though their very livelihood is at risk. 9|Page

In fact, trade unions represent workers collectively and thus have more force than a single worker. Making sure workers have access to trade unions is a way towards fixing the balance of power facing the employer.

5. Justified termination of workers’ contract If the Redundancy Board finds the employers’ decision to dismiss justified, the law grants the employer a new alternative – between the termination of workers’ contract or have workers on unpaid leave until the resumption of employment is decided. Though, firstly the duration during which the worker is on unpaid leave is decided by the employer. This means that workers are forced into unemployment, all while having to remain at the disposal of their “employer” until their services are required again. Secondly, while this unpaid leave option is conditional on the workers’ consent, the likelihood of free, informed and prior consent is highly uncertain given the circumstances. With a lack of trade union support, when an employer chooses for unpaid leave, workers are made to “consent” to either being unemployed without any guarantee of finding another job or being unemployed with the chance of resuming this job. These are hardly proper conditions where workers can meaningfully exercise consent. Thirdly, when workers consent to unpaid leave, they do not know what they might be consenting to. Under this unpaid leave scheme, workers can be made to resume their job on new terms and conditions, including pension benefits, as the employer may, prior to the resumption of work, offer to the worker”. For workers, consenting to unemployment is accompanied by the loss of the right – recognised to all contracting persons – to negotiate new terms and conditions of a contract. In fact, they are made to return from unemployment to working under new conditions, decided solely by their employer.

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6. Unjustified termination of workers’ contract. If the Board finds the employer’s downgrading decision unreasonable, it no longer has the power to, on the request of workers, order the employer to bring them back with compensation to their former employment. Under the derogatory procedure, the workers’ best end result for unjustified termination is compensation according to seniority in the company. Besides losing their jobs, lower-paid workers are also denied rights and options and are ultimately made to go through the company’s economic difficulties. Employers, on the other hand, are not only making sure for imposing unfair working conditions on precarious workers but also, the procedural derogation creates an evident loophole allowing a considerable edge for abuse. 7. Bypassing the Commission for Conciliation and Mediation Moreover, all employ...