The much-awaited new labour legislations are already fuelling debates. Unions have for long denounced the unfair provisions of the current Employment Relations Act and the Employment Rights Act. The purpose of the new laws is to make good the shortcomings of the past, consolidate industrial relations and better protect the rights of workers. But do these two bills meet the expectations of the main stakeholders in the labour market?
More than ten years after its introduction, the Employment Rights Act 2008 will be replaced by the Workers’ Rights Bill, while the Employment Relations Act will be amended through a new bill, the Employment Relations (Amendment) Bill. Finally, the Portable Gratuity Fund will become a reality. A technical committee will work out the terms and conditions for its implementation and submit its recommendations by the end of this month. In addition, government wants the National Remuneration Board (NRB) to publish its report on wages every five years.
But what are the main changes the new legislations will bring? The amendments to the Employment Relations Act aim to strengthen labour relations between workers, unions and employers through a better mechanism for collective bargaining, social dialogue and conflict resolution. Other highlights include the lowering of the recognition threshold for a union from 30% to 20%, that is, a new union will be recognised if it has 20% of the number of employees in the enterprise or sector while the current threshold is 30%; the establishment of a National Tripartite Council and giving more power in the court to reinstate an unfairly dismissed employee if his or her rights had been violated, among others.
The Workers’ Rights Act, on the other hand, will repeal the current Employment Rights Act, in order to be a modern and comprehensive law to address the much-criticised shortcomings of the current one. This law will further protect workers by broadening the definition of discrimination. In addition, it will protect workers against precarious employment. Fixed-term contracts will be reviewed whereas a person who performs an atypical work, such as an online platform worker, will have the status of a formal worker. The employee may also have any agreement vetted by a legal or trade union representative of his choice or a representative of the Ministry of Labour.
The new law aims to promote family relations by offering flexibility in terms of both schedules and working arrangements. Leave will be reviewed, with the introduction of other types of leave. In addition, the employer may be held liable, depending on the circumstances, for any act of violence suffered by an employee at the workplace. Note that Business Mauritius is organising a familiarisation program on labour laws on July 31st. The fee is Rs 17,000 per participant.
Portable Gratuity Fund
In the past, if someone changed jobs several times, it was the last employer who had to pay him the ‘lump sum’ upon retirement. As a result, the previous lengths of service were not taken into account. Moreover, studies have shown that only 10% of employees work with a single employer and 90% of those who retire only benefit from the length of service at their last job. Hence, the Portable Retirement Gratuity Fund will allow the worker to benefit from a gratuity calculated on his full length of service. There will be a technical committee that will work out the terms of the Fund.
The new legislation introduces the concept of ‘compressed hours’, that is, a high-performing worker who completes his task in less than expected time will be paid for the entire duration of the assignment.
A Ministry of Labour representative may apply for a Protective Order from the court to use the assets of an employer to compensate an employee who has not been paid.
An employee who has worked at least 5 years for the same employer will be entitled to two months vacation leave every 5 years, with one month paid.
In the case where an employee has more than 12 months of service, he will be entitled to six days of paid leave on the occasion of his marriage, three days of paid leave on the occasion of the marriage of his son or daughter, and three days of paid leave in the event of a death in his immediate family.
Ivor Tan Yan : “We must see the implementation of the law”
Ivor Tan Yan, a negotiator of the Federation of Progressive Unions and chairman of ‘100% Citoyens’, tells us that it is too early to say whether the new employment legislations are perfect, as long as we do not see the implementation and the results. Nevertheless, he is of the opinion that there are several positive points in these laws. He stresses that it is essential for all workers to know and understand the provisions of these laws and how they benefit from them. “These laws rebalance and recognise the rights of workers, especially the elements we lost in 2008 and 2013,” says the negotiator. He recalls how under the old law it was so easy to dismiss a worker, who thus suffered a double punishment: First, the loss of his job, then the loss of his years of service. But today, the Portable Gratuity Fund will correct this injustice. “In addition, the new law will make possible the reinstatement of an unfairly dismissed employee, the law thus restores the rights removed in the past,” he adds. He further reveals how the previous version of the law has caused many dismissals such that the Industrial Court today is overloaded with cases. But Ivor Tan Yan regrets that Business Mauritius is not accepting the elements of the new legislations. “Unions have worked hard and submitted their memoranda right from the beginning, the law has been prepared and presented to Parliament but now at the last minute, Business Mauritius wants to send its memorandum. This is unacceptable,” says Ivor Tan Yan.
Among the positive points of the new laws, he mentions the fact that it will no longer be possible to bypass the law to make permanent work appear temporary, thus eliminating precariousness. He welcomes the Portable Gratuity Retirement Fund, the Special Leaves and the advent of the Protective Order. But does he believe the laws will be successfully implemented? To this question, the negotiator observes that the law gives more powers to the inspectors of the labour office, but he feels the latter must be given the necessary tools and resources to better carry out their duties. He quotes official inspection figures to explain that more inspectors are needed to cover all enterprises.
And the negative points? Ivor Tan Yan regrets discriminatory elements in the law, for example in cases where certain clauses do not apply to workers earning more than Rs 47,000 per month. “Yes, I understand that the nature of the work can bring about a difference but the line of demarcation must be based on the worker’s responsibilities and not on the salary level,” he argues. He reveals that these workers will not benefit from meal allowance, are not eligible for special leaves, and are not covered by the notion of ‘Equal work, equal pay’. And he finds it absurd that the different clauses of these laws will be proclaimed at different dates, without the law specifying which sections. To conclude, he asks Business Mauritius whether it approves the climate of terror that prevails in some companies, where employers make an abuse of disciplinary committees to dismiss workers, without respecting their length of service and most often without any charge.
Pradeep Dursun : “Let’s wait for the technical committee conclusions”
Following the comments of trade unionists, we sought the reaction of Business Mauritius. Pradeep Dursun, the Chief Operating Officer, says that these are very important laws that will have a definite impact on the economy. “Given the scope of these laws, and given that there have been no consultations, we will institute a technical committee to analyse the amendments, and then come with our conclusions, so I cannot comment for the moment,” says Pradeep Dursun.
Reaz Chuttoo : “The government must correct the mistakes of the past”
Reaz Chuttoo, one of the leaders of the ‘Conféderation des Travailleurs du Secteur Privé’, says that it is not only a new law, but rather ‘a verdict’ in favour of workers who have been suffering for 10 years now because of the anti-worker law. “All the good elements of these laws should have been in force since long,” he says. He welcomes the decision to review wages in the private sector every five years, as is the case in the public service. He appreciates the concept of ‘equal pay for equal work’. Concerning the provisions to regulate temporary jobs and the Portable Gratuity Retirement Fund, he says that it is the law of natural justice, because a person cannot be punished twice, as with a dismissal, or a change of employer, the employee not only loses his job but also his years of service. “And levying 12% interest annually on any late compensation payable to workers will make bosses think twice before resorting to delaying tactics to prolong court cases.”
Among the negative points, he regrets that the ‘Meal Allowance’ remains at Rs 70 after 10 years. He also does not agree that an employee works five consecutive nights. But would these laws bring a ‘feel good factor’ among the workers? Reaz Chuttoo says he doubts the law will be voted as it is, as employers are already agitating and trying to put pressure on the government. “At least, there is a government that understands the suffering of workers and has had the courage to come up with such a law, but if it does not pass it, the government will miss a unique chance to correct the mistakes of the past.”
Radhakrishna Sadien : “I welcome the National Tripartite Council”
The Chairman of the Government Services Employees Association, Radhakrishna Sadien congratulates the government for finally taking the initiative to come with these promised amendments before the end of its mandate. “The National Tripartite Council was an ad-hoc occurrence, now it will have a formal legal basis,” says the unionist. But he believes that the recognition of unions with only 20% of the members will see the creation of new unions, and this can weaken existing ones and it is not in the interests of workers. He also points out that under the PRB, no one can challenge a recommendation, the report being always final. Regarding the Portable Gratuity Fund, he says we are still at the stage of discussions and we must see the implications.
After security guards, now the carers
Ivor Tan Yan finds it absurd that the law prescribes a 12-hour working day for a carer (garde malade). In the past, there was outcry regarding 12-hour shift for security guards. “With the ageing of our population, the demand for carers will rise, but do you think this job will attract people if they have to work twelve hours a day?” he queries. He reminds that the job of a carer is a tense profession, and we will expose our seniors to difficulties if we do not review the working conditions of carers.
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