The Finance (Miscellaneous Provisions) Bill 2024 will be formally introduced at the National Assembly this Thursday 18 July 2024. The object of the Bill is to provide for the implementation of the measures announced in the Minister of Finance’s Budget Speech 2024-2025. The Bill will be debated and voted on at the National Assembly in the coming weeks. To receive our summary of the enacted legislation, sign up for our email briefings.
Over the next week, the team at Orison Legal will discuss some of the main proposals that the Bill puts forward and that are most relevant to the business community.
In the first part of this series, we consider the key changes that the Bill proposes to bring in the field of employment law.
(1) The right to disconnect during unsocial hours
The Bill proposes to introduce a worker’s right to disconnect, i.e. to disengage from work and work-related communications (including emails, telephone calls, video calls or other means of sending and receiving messages) during unsocial hours when they are not working. These “unsocial hours” are (i) between 1 p.m. on a Saturday and 6 a.m. on the ensuing Monday, and (ii) between 10 p.m. on a weekday and 6 a.m. on the ensuing day.
However, the worker may be required to work during those unsocial hours due to situations of emergency or where those hours correspond to the working hours in the market country served. In those circumstances, the worker will be entitled to a disturbance allowance in addition to their normal remuneration. The disturbance allowance is equivalent to the worker’s hourly wage for every hour of work performed during the unsocial hours. These provisions would apply irrespective of a worker’s level of salary.
The disturbance allowance is not a new measure. It is already provided for in regulations made by the Minister of Labour in September 2020[1], except that those regulations provide that “unsocial hours” do not include the working hours of a worker in the ICT/BPO sector whose working hours correspond to the working hours in the market country served. However, the Bill as currently drafted suggests that the disturbance allowance will henceforth also be paid to workers in the ICT/BPO sector.
(2) Vacation leave
The Workers’ Rights Act came into force on 24 October 2019. Starting from that date, a worker who remains in continuous employment with the same employer for a period of at least 5 consecutive years is entitled to a vacation leave of not more than 30 days, for every period of 5 consecutive years. This is already provided in the legislation since 2019. As such, a number of workers who have stayed with their employer since then may be eligible to the vacation leave in October 2024. This provision applies to workers earning not more than MUR 600,000 in annual basic salary.
The Bill proposes further provisions regarding vacation leave as follows.
- The vacation leave must be for a minimum period of 6 consecutive days.
- A worker must apply for the vacation leave at least 3 months in advance, except in special circumstances.
- An employer must approve the application for the vacation leave, except if there are reasonable business grounds, i.e. (a) the inability or impracticability to reorganize working arrangements of existing workers, and (b) a detrimental effect on the ability to meet customers’ demand.
Where an employer rejects an application on reasonable business grounds, the worker and the employer may agree on another period when the vacation leave is to be taken. Failing such an agreement, the employer must pay remuneration in lieu of the vacation leave. Such payment is to be made in the month in which the leave was due to start.
(3) Work from home in extreme weather conditions
The Bill proposes to introduce specific conditions for an employer to require a worker to work from home during a period of extreme weather conditions such as cyclonic conditions where a warning class III or IV is issued, an order is issued to remain indoors during a period of heavy or torrential rain or a safety bulletin is issued by the Mauritius Meteorological Services. In those situations, the employer may require the worker to work from home if there is no (i) risk to their life or that of their family, (ii) risk of injury, (iii) risk of their residence being damaged or (iv) electricity or communication breakdown.
Further, while the Workers’ Rights Act currently requires employers to pay an allowance equal to 3 times the hourly wage of a worker when they work from home during these extreme weather conditions, the Bill proposes to reduce that remuneration to twice their hourly wage. This requirement to pay additional remuneration applies in respect of workers earning less than MUR 600,000 in annual basic salary.
(4) Time off in lieu of remuneration for overtime
The Bill proposes to allow a worker to opt for paid time off in lieu of remuneration due for overtime and working on public holidays. For that purpose, the number of hours of time off is computed in accordance with the same rate as for overtime payment (i.e. 1.5 times the number of hours of overtime on a weekday, twice the number of hours worked on a public holiday and three times the number of hours of overtime worked on a public holiday).
The Bill, however, does not clarify whether the employer is required or may refuse to grant the time off in lieu of remuneration. Nor does it provide until when the worker is entitled to take such time off. By contrast, when the legislator provided in 2020 that an employer could grant paid time off to a worker in lieu of remuneration for overtime and public holidays during the COVID-19 period, the legislation clearly provided that (a) where the worker is not granted the paid time off, it would be accumulated up to the date the worker ceases employment or 31 December 2021, and (b) the worker would be paid remuneration in lieu of the time off if they are unable to avail themselves of such time off. In the absence of such statutory provisions, employers might wish to introduce internal policies to inform their staff of the circumstances in which time off in lieu of remuneration for overtime may be granted or refused, whilst ensuring that such policies do not infringe any of the workers’ statutory rights.
(5) Benefits to parents
- Maternity leave to increase from 14 weeks to 16 weeks with full pay (including at least 8 weeks to be taken following confinement).
- Additional 2 weeks’ paid maternity leave to a mother who gives birth to twins, triplets or multiple births, or to a premature baby.
- Paternity leave to increase from 5 continuous working days to 4 consecutive weeks.
- Affording different treatment to workers on maternity or paternity leave, which has the effect of impairing their career development or their opportunity of promotion, will be considered as unlawful discrimination.
- Childcare facilities – In 2023, the legislator introduced the requirement for employers with more than 250 workers to provide free childcare facilities, either on the premises of the workplace or within a distance of one kilometre from the workplace. These facilities apply in respect of children under the age of 3 years. The Bill proposes to remove the requirement for these childcare facilities to be provided on the premises of the workplace or within a distance of one kilometre. It instead proposes to delegate powers to the Minister of Labour to issue regulations to provide for how these facilities are to be provided.
(6) Migrant workers
The Bill proposes to introduce a new legal framework for the employment of migrant workers by “labour contractors”, who recruit and supply those migrant workers to other businesses (the “hirer employers”) for a specific period of time. These migrant workers are non-citizens holding work permits issued by the Ministry of Labour. They do not include non-citizens with the status of resident such as those holding Occupation Permits.
The salient features of this framework are as follows.
- The labour contractors will not be required to hold a private recruitment agency licence pursuant to the Private Recruitment Agencies Act 2023. Instead, they will need to register with the Ministry of Labour.
- The labour contractors will be allowed to supply migrant workers in specific economic sectors and job categories as the Minister may prescribe.
- The contract of employment will be between the migrant worker and the labour contractor (as employer), irrespective of whether or not the migrant worker is supplied to a hirer employer for a given period.
- The labour contractor and hirer employer will be jointly liable for the payment of remuneration and the migrant workers’ conditions of employment, as well as the payment of statutory contributions in respect of the employment of those workers. However, the hirer employer’s liability will be limited to the sum payable by the hirer employer to the labour contractor under their contractual agreement. Nevertheless, the hirer employer cannot set up as defence to a claim from a migrant worker seeking to recover remuneration, the fact that they have already paid to the labour contractor any sum due under their agreement.
- The hirer employer will be liable for any act of violence at work and for any accident, injury or death sustained by the migrant worker out of, or in the course of, their employment.
Further, the Bill proposes to require an employer who intends to terminate the employment of a migrant worker and to repatriate him must, before the date of the repatriation, (i) give at least 20 working days’ written notice to the supervising officer of the Ministry of Labour, (ii) pay the worker any unpaid remuneration and (iii) ensure that the worker has been paid all benefits to which he is entitled to.
[1] The Workers’ Rights (Working from Home) Regulations 2020
