Reinforcing Workers Rights in Mauritius

What do you need to know about workers rights in Mauritius?

The stated objective of the newly enacted Workers’ Rights Act 2019 (the “WRA”) is to address the shortcomings of the Employments Rights Act 2008 (the “ERA”) and to bring about a fundamental reform of labour law in Mauritius, with a more modern approach. The WRA updates certain provisions of the ERA whilst on the other hand, providing a swath of reorganisation, namely with respect to, amongst others, new types of working arrangements, such as atypical agreements, special leaves.

This article provides an insight on certain essential provisions introduced by the WRA as well as the amendments to the ERA where relevant.

 

Enlarged definition of Worker

Under the WRA, the definition of “worker” has been enlarged to persons whose basic wage or salary does not exceed Rs 600,000 per annum in lieu of the Rs 360,000 threshold which was applicable under the now repealed ERA.

 

New types of  Work Agreements

In addition to the contract of employment for indeterminate duration which has always been covered by our labour laws, and the other types of agreement which have been introduced over time, namely the deeming agreement, fixed-term agreement and homeworker agreement, the WRA now formally recognises the following agreements to take into account the constant evolution of working arrangements:.  

  1.  “Atypical Agreement” which is basically for those workers who do not fall within the standard definitions of workers under the WRA. This type of agreement applies to homeworkers, online platform workers, worker who may work for one or more employers at the same time and who chooses when, where and how to work.
  1. “Compromise agreement” which is entered into in resolution of a dispute concerning a worker’s termination of employment, short payment or non-payment of wages. The validity of such an agreement is subject to it having been vetted by an advisor who is independent of the employer.

 

Flexitime

A worker is now able to request to work on flexitime where his child is below school age i.e. 4 years or where the child has an impairment. The employer shall within 21 days of the request, inform the worker whether or not such request has been granted.

 

A worker who is in employment with the same employer for 5 consecutive years is now entitled to a paid vacation leave of 30 days and on every subsequent 5 consecutive years. This vacation leave is deemed to constitute attendance at work and is not cumulative.

 

Special Leaves

Certain leaves have now been formalised and have to be granted by the employer, namely:

Marriage: A worker in continuous employment is now entitled to leave upon his marriage as follows:

  1. First civil or religious marriage:  6 working day’s special leave on full pay;
  2. First civil or religious marriage of the worker’s son/daughter: 3 working days’ special leave on full pay; and

Death  of the worker’s spouse, child, father, mother, brother or sister:  The worker is entitled to 3 working days’ special leave on full pay.

Juror’s leave: The worker is entitled to leave with pay during his absence from work pursuant to a summons to attend court as a juror in court proceedings.

Leave to participate in international sports events: A worker who is selected or nominated to represent Mauritius in an international sports event is entitled to leave for the duration of the event or such longer period as may be necessary.

Leave to attend Court: A worker attending court regarding a matter in which he is either a party or a witness has to be granted leave by his employer. If the worker is attending court as the representative of his employer or on his behalf, the leave is with pay.

 

End of year bonus

There is now a new twist to the end of year bonus. If a  worker has remained in employment for only part of the year and his employment is terminated for any reason or he resigns in the course of the year on or after having been in continuous employment for at least 8 months, he has to be given a bonus equivalent to one-twelfth of his earnings for that year and this payment is due not later than his last working day.

 

Liability of employer

The WRA imposes a general obligation on all employers to ensure the security of a worker at work. Consequently, an employer is vicariously liable for violence at work, including, for example, sexual harassment committed by a worker and any third party where the employer knew or should have known of the violence at work and failed to take any action to prevent or stop the violence.

Notice of termination either by the employer or employee must now obligatorily be not less than 30 days, regardless of any contract to the contrary. Otherwise, the WRA offers the option of paying to the other party, the amount of remuneration the worker would have earned had he remained in employment during the period of notice.

 

Disciplinary proceedings

The worker’s right to be heard before his contract of employment is terminated on grounds of misconduct or poor performance has been maintained.

However, it is now mandatory under the WRA to complete the disciplinary hearing within 30 days of the date of the first oral hearing. Notwithstanding, there are certain exceptions to this general rule, namely: –

  1. where the parties agree to extend the delay; or
  2. owing to the illness or death of any parties or witnesses; or
  3. the reconstitution of the disciplinary panel or change in the legal or other representatives of the parties, such hearing cannot be completed during that delay.

Under the WRA, the employer is now bound to provide the worker, upon request, with all information or documents which are relevant to the charge which is being levied against the employee before the holding of the disciplinary hearing. The worker and his representative are now further entitled to a copy of the minutes of the disciplinary hearing upon request.

 

Reduction of workforce

The WRA has introduced a significant change to the procedure for reduction of workforce. Indeed, employer having not less than 15 workers and an annual turnover of at least Rs 25 million, has a duty to notify and negotiate with the company’s trade union or a union having a representational status prior to making workers redundant, the possibilities of avoiding reduction or closing down.

In the event that no agreement is reached, the employer has to submit a written notice together with a statement showing cause for the reduction or closure at least 30 days before the intended reduction or closing down, to the newly introduced redundancy board (the “Board”).

The Board has the power to order an employer to pay severance allowance at a rate of 3 months’ remuneration per year of service where the reasons for reduction of workforce or closing down are unjustified, unless the Board orders reinstatement with the consent of the worker. The Board may also order 30 days’ wages as indemnity in lieu of notice where termination is done following an order of the board.

What are the immediate effects of the WRA on workers in employment?

Employers should ensure that they comply with all the new provisions of the WRA from now on. The steps which are going to have impact immediately on workers in employment are the payment of the end of year bonus on those workers who are resigning or terminating their employment before December.

 

Publication is written by:

Sonia Xavier

Vaneesha Ghunsam