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Changes brought to the Workers’ Rights Act 2019 by the Finance (Miscellaneous Provisions) Act 2021

By Burty Francois and Khemila Narraidoo

Remuneration and leave related to COVID-19 vaccination or RT-PCR test (Section 51A)

  1. Section 51A has been introduced in the Workers’ Rights Act 2019 to regulate the position of a worker working at a ‘specified institution’ who is not vaccinated against the COVID-19. According to the COVID-19 (restriction of access to specified institutions, places and premises) Regulations 2021, a worker who has not been vaccinated nor has obtained a negative RT- PCR test dating back to no more than seven days as from the date that the RT- PCR test was taken, cannot have access to his/her workplace, provided that the workplace forms part of the list of ‘specified institution, place or premises’. For medical and educational institutions, the regulation has already taken effect.  For airport, port, prison services and care homes, the restriction will take effect on the 21 August 2021 in Mauritius and on the 13 September 2021 for the Island of Rodrigues.
  2. The COVID-19 (restriction of access to specified institutions, places and premises) Regulations 2021 does not, however, specify whether refusing access to employees on the ground that they are not vaccinated or that they do not have a valid negative RT- PCR test would entail that these employees shall be placed either on paid leave or unpaid leave. We, however, note that the Government is now empowered by this section to make any regulation in this matter with respect to the payment of remuneration or granting of leave. The regulation on the salary and leave policy is eagerly anticipated.

End of year bonus (Section 54)

  1. The law previously provided for the payment of the end of year bonus, equivalent to one twelfth of the earnings of an employee for that year only when the contract of employment has been terminated for any reason or when the employee has resigned after having completed at least 8 months of the 12 months period of the year in question. The law has now been amended to cater for the end of a determinate duration contract (which would not fall under dismissal or resignation) inasmuch as that employee will be entitled to an end of year bonus on a prorated basis. It should be noted that, for the purposes of this section, an employee is defined as earning less than MUR100,000 on a monthly basis.

Protection against termination of agreement - Section 64

  1. In relation to the conduct of disciplinary committees, the previous delay to terminate the contract of employment was “within seven days” of the completion of the disciplinary committee and has now been amended to read “not later than seven days”. In practice, for the purposes of computation of the seven days, we should not consider the day on which the disciplinary committee ended.   
  2. The Workers’ Rights Act 2019 used to provide for a delay of 30 days for the disciplinary committee to be completed as from the first oral hearing unless the parties agree to extend this delay. The Finance (Miscellaneous Provisions) Act 2021 has now amended this section to provide that both parties can still extend the delay of 30 days provided that the disciplinary committee is completed within 60 days from its first oral hearing.

Suspension – (Section 66)

  1. With the advent of the Finance (Miscellaneous Provisions) Act 2021, where a worker is suspended, pending the outcome of disciplinary proceedings, the worker shall now be paid only his/her basic salary for the period of the suspension instead of his/her “full pay”.

Reduction of workforce (Section 72)

Section 72 of the Workers’ Rights Act 2019 provided that an employer shall not terminate the employment of its workers, during such period as may be prescribed, unless either the worker falls under the exceptions provided for under Section 72A or the employer had applied for financial assistance. This has now been amended inasmuch as the employer need not seek financial assistance prior to making its application to the Redundancy Board. The notice to the Redundancy Board should contain details which justifies the reduction of the number of workers such as the company being over-indebted and not economically viable. The employer can also reduce the number of workers if such restructuring may enable the company to better manage its financial position and avoid financial perils.

  1. In the event that an employer is proceeding with the reduction of workforce under section 72A of the Workers’ Rights Act 2019, the Finance (Miscellaneous Provisions) Act 2021 now provides that the board shall consider the notice of intended reduction submitted by the employer and whether the procedure adopted by the employer is in the best interest of the business. If the redundancy board is of the opinion that it is in the best interests of the business, it shall not order severance allowance to be paid to employees whose contract of employment have been terminated.
  • The prescribed period has been extended by the Workers’ Rights (Prescribed Period) (Amendment) Regulations 2021 issued on the 11 June 2021 to the 31 December 2021. 
  • Section 72A provides a special regime for workers employed in air traffic control, air transport services, or any airline and aviation related services, civil aviation and airport, including ground handling and ancillary services, port and other related activities in the ports including loading, unloading, shifting, storage, receipt and delivery, transportation and distribution as specified in section 36 of the Ports Act.