BY Deepti Bismohun , Natasha Behary Paray , Shrivan Dabee AND Valentine Mayer
Mauritius: landmark changes to key provisions in employment law due to COVID-19
The COVID-19 (Miscellaneous Provisions) Act, 2020 has brought about certain amendments to key aspects of employment legislation in Mauritius in an attempt to alleviate the adverse economic effects of the recent pandemic on employers in targeted sectors. The most substantial amendments are, notably, postponing the enforcement of the provisions relating to the Portable Retirement Gratuity Fund and for certain industries only, providing an accelerated redundancy procedure and regulating the rate of pay for overtime .
Provisions affecting all employees irrespective of remuneration or sector of employment
- Working from Home: Section 17A of the Workers’ Rights Act, 2019 (the “WRA”) has been introduced to formally enable an employer to require any employee, irrespective of his remuneration, to work from home with prior notice of at least 48 hours given to the employee. Additional regulations may be made in respect of working from home.
- Restrictions on termination of employment: An employer who has received financial assistance under the Wage Assistance Scheme, or any other financial assistance that is paid to the employer by the state or an agent of the state, is not entitled to terminate the employment of any employee during any month in respect of which the employer has received such financial assistance. Termination is, however, still possible on grounds of misconduct, provided that the procedures under section 64(2) of the WRA are followed.
- Portable Retirement Gratuity Fund (“PRGF”): The payment of monthly contributions into the PRGF, initially scheduled to 1 January 2020 (and later deferred to 1 April 2020), has been postponed to “such date as may be prescribed”. Further, the requirement to make contributions in respect of past services under has also been postponed to “such date as may be prescribed.” Notwithstanding the foregoing, gratuity on retirement may still be due to an employee.
Provisions affecting employees remunerated at a rate not exceeding MUR600 000 per year
- Flexitime: The provisions, with respect to flexitime under section 22 of the WRA, have been amended to impose on the employer an obligation to give 48 hours prior notice before requesting a worker to work flexitime and to enable a worker to request to work flexitime without limiting such requests to situations where the worker has to care for a child below school age or with an impairment.
- No nightshift allowance for night shifts performed during COVID-19: Employers have been exempted from paying the night shift allowance (15% of the worker’s basic wage) for night shifts performed between 23 March 2020 and for such further period as may be prescribed.
- Deduction of leave: By derogation from the provisions of the WRA previously applicable, the employer is entitled, during a period of 18 months from 1 June 2020, to withhold 15 days’ annual leave, or such number of annual leave as may be prescribed, from the leave entitlements of the worker for the calendar years 2020 and 2021.Such deduction is not possible if the worker has been called by the employer to perform work between 23 March and 1 June 2020. For part time workers, the annual leave that the employer can withhold is pro-rated according to the number of days of work that the part time worker performs compared to a comparable full time worker.
Provisions applicable only to employers in certain sectors
- Sectors listed under Third Schedule to the Employment Relations Act 2008
- Cases pending before Conciliation and Mediation Commission: Any labour dispute referred to the Conciliation and Mediation Commission between 23 March and 1 June 2020 or pending before the Commission as at 23 March 2020 in respect of employers operating in the civil aviation and airport, including ground handling and ancillary services, air traffic control, health, hospital, port sectors will be transferred to the Employment Relations Tribunal for determination within 30 days.
- Provisions on minimum services during strike or lock-out: The procedural agreement between employers operating in the transport, customs, electricity, hotel services, radio and television, refuse disposal, telephone, transport of passengers and goods and water supply sectors and the trade union ought to provide the number of workers, their occupations and departments for a minimum service during any strike or lock-out. Before proceeding to a strike or lock-out, the trade union or employer has to ensure that the minimum service is put into effect.
- Exemptions from provisions applicable in case of takeover or transfer of undertaking: In respect to the sectors listed above, the minister is empowered to exempt employers in those sectors from the application of section 67 of the WRA, that is, a new employer has no obligation to consider a worker to be on continuous employment following a transfer or a takeover of the previous employer’s trade or business. Where such an exemption is allowed, the minister may make provisions for the terms and conditions on which the worker may be offered employment by the new employer upon the transfer of undertaking or takeover of the previous employer’s trade or business.
- Alternative procedure for reduction of workforce: Employers engaged in the sectors listed above may be exempted from the procedure applicable under section 72 of the WRA, and will instead be subject to section 72A of the WRA which now provides, inter alia, that:
- no negotiations need to be held with the trade union or workers’ representative to find alternatives to the said reduction or closure;
- an employer is required to provide 15-days prior notice to the Redundancy Board before the said reduction or closure;
- if reasons for reduction/closure are justified, the Redundancy Board may either order payment of 30 days’ wages as indemnity in lieu of notice, or upon the request of the employer and with the consent of the employee, order that the employee be placed on leave without pay for the period identified by the employer in his notification subject to the condition that resumption of employment will be on new terms and conditions, including pension benefits, as may be offered to the worker before resumption of work. An employee who is placed on such leave without pay is entitled to transition unemployment benefit.
- if reasons for reduction/closure are not justified, the Redundancy Board may order payment of severance allowance at the rate of three-months’ remuneration per year of service.
- Sectors listed under the Ninth Schedule to the WRA
- Provisions have been made under section 24A of the WRA for the payment of overtime in derogation from the formula applicable under section 24 of the WRA for employers involved in the blockmaking, construction, stone crushing and related industries, as well as the manufacturing sector governed by the Factory Employees (Remuneration) Regulations 2019.
For a summary of recent legislative amendments introduced in Mauritius in relation to COVID-19, please click here.
Reviewed by P. Maxime Sauzier SC, an Executive at ENSafrica (Mauritius).
For more information please contact
Senior Associate | Mauritius
+230 5492 7834
Natasha Behary Paray
Associate | Mauritius
+230 5748 0789
Associate | Mauritius
+230 5492 4853
Associate | Mauritius
+230 5981 9253
COVID-19, also known as the Coronavirus, is an infectious disease caused by severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) that was declared a pandemic by the World Health Organization on 11 March 2020. The disease has since been reported in over 190 countries.