Employment Rights Act

Jurisdiction: Mauritius
Citation: Act 33 of 2008
Date: 30 June 2017
Language: English
Type: Legislation
Download: Download PDF (656.3 KB)

Mauritius

Employment Rights Act

Act 33 of 2008

Commenced on 2 February 2009
[This is the version of this document at 30 June 2017.]

Part I – Preliminary

1. Short title

This Act may be cited as the Employment Rights Act.

2. Interpretation

In this Act—"agreement" means a contract of employment or contract of service between an employer and a worker, whether oral, written, implied or express;"basic wage or salary", in relation to a worker, means—(a)where the terms and conditions of employment of the worker are governed by Remuneration Regulations, an arbitral award or an agreement, whether oral or written, express or implied, the basic wage or salary prescribed in the Remuneration Regulations, award or agreement, or where the employer pays a higher wage or salary, the higher wage or salary so paid, but does not include any allowance by any name called, and whether paid in cash or in kind;(b)in any other case, all the emoluments received by the worker, excluding any bonus or overtime;"child" means a person under the age of 16;"collective agreement" has the same meaning as in the Employment Relations Act;"comparable full-time worker" means a full-time worker who—(a)has the same type of employment relationship;(b)is engaged in the same or a similar type of work or occupation; and(c)is employed in the same establishment, enterprise or branch of activity,as a part-time worker;"continuous employment" means the employment of a worker under an agreement or under more than one agreement where the interval between an agreement and the next does not exceed 28 days;"Council" means the Labour Advisory Council established under section 64;"Court" means the Industrial Court established under the Industrial Court Act;"day" means any period of 24 consecutive hours;"employer", subject to section 33—(a)means a person who employs a worker and is responsible for the payment of remuneration to the worker;(b)includes—(i)a job contractor;(ii)a person, other than another shareworker, who shares the profit or gross earnings of a shareworker;"enterprise" includes a trade or business;"fortnight" means any period of 14 consecutive days;"good and sufficient cause" includes—(a)illness or injury certified by a medical practitioner;(b)absence authorised by the employer;(c)absence due to participation in a lawful strike;"goods vehicle" has the same meaning as in the Road Traffic Act;"harassment" means any unwanted conduct, verbal, non-verbal, visual, psychological or physical, based on age, disability, HIV status, domestic circumstances, sex, sexual orientation, race, colour, language, religion, political, trade union or other opinion or belief, national or social origin, association with a minority, birth or other status, that a reasonable person would have foreseen that a worker would be affected negatively in his dignity;"industrial undertaking" includes—(a)mining and quarrying operations or other activities connected with mineral prospecting;(b)the manufacture, production, assembly, installation, repair, maintenance, modification or destruction of materials or properties;(c)ship building operations;(d)the generation, transformation, and supply of electric power or other type of energy;(e)the construction, extension, installation, repair, maintenance, alteration or demolition of buildings, airfields, tramway lines, harbours, dockyards, piers, inland water ways, roads, tunnels, bridges, drainage, water pipes, telegraphic and telephonic installations, electric gas or water works or other construction work including the preparation for or laying the foundation of any such work or structure; and(f)such other undertaking as the Minister may, by regulations, determine;"job contractor" means a person who employs a worker to perform any work or service that the person has contracted to do or provide for another person;"local authority" has the same meaning as in the Local Government Act;"Minister" means the Minister to whom responsibility for the subject of labour and employment relations is assigned;"National Pensions Fund" means the National Pensions Fund established under the National Pensions Act;"National Savings Fund" means the National Savings Fund established under the National Savings Fund Act;"night work" means work which is performed, whether in shifts or otherwise, during a period of not less than 7 consecutive hours between 6 p.m and 6 a.m;"notional hourly rate" means the hourly rate as calculated in section 15;"officer" means an officer designated by the Permanent Secretary;"part-time worker" means a worker whose normal hours of work are less than those of a comparable full-time worker;"pay period" means the period for which remuneration is paid under section 21;"Permanent Secretary" means the Permanent Secretary of the Ministry;"place of work" means a place where work is performed under an agreement;"public holiday" has the same meaning as in the Public Holidays Act;"public officer" has the same meaning as in the Constitution;"remuneration"—(a)means all emoluments, in cash or in kind, earned by a worker under an agreement;(b)includes—(i)any sum paid by an employer to a worker to cover expenses incurred in relation to the special nature of his work;(ii)any money to be paid to a job contractor, for work, by the person employing the job contractor; and(iii)any money due as a share of profits;"Remuneration Regulations" means any regulations made by the Minister under section 93 of the Employment Relations Act and includes any Remuneration Order, made under the repealed Industrial Relations Act, which is still in operation;"retirement age" means, in respect of a worker whose month and year of birth are mentioned in Column 1 of the First Schedule, the date on which the worker attains the age specified in Column 2 of that Schedule;"severance allowance" means an amount calculated in accordance with section 46;"shareworker" means a person who—(a)is remunerated wholly or partly by a share in the profits of the enterprise for which he works, or gross earnings of an enterprise obtained from the work done by him; and(b)is not an owner of the main equipment, premises and materials used in the work he does;"shift work" means work organised in 2 or more shifts in a period of 24 consecutive hours;"shop" means a place where any wholesale or retail trade or business is carried on;"stipulated hours" means the hours of work specified in section 14 (1) (a) and 14 (4) (a) or such lesser number of hours of work as may be specified in an agreement;"threatening behaviour" means any behaviour or declaration of intention to use force on, or to intimidate, a worker;"trade or business" means any occupation, calling, trade, business, profession, industry, service or other commercial activity;"trade union" has the same meaning as in the Employment Relations Act;"Transition Unemployment Benefit" means the unemployment benefit referred to in section 44;"Tribunal" means the Employment Relations Tribunal established under the Employment Relations Act;"week" means any period of 7 consecutive days;"week day" means any day other than a public holiday;"worker", subject to section 33 or 40—(a)means a person who has entered into, or works under, an agreement or a contract of apprenticeship, other than a contract of apprenticeship regulated under the Mauritius Institute of Training and Development Act, whether by way of casual work, manual labour, clerical work or otherwise and however remunerated;(b)includes—(i)a part-time worker;(ii)a former worker where appropriate;(iii)a shareworker;(c)does not include—(i)a job contractor;(ii)except in relation to sections 4, 20, 30, 31 and Parts VIII, VIIIA, IX, X and XI, a person whose basic wage or salary is at a rate in excess of 360,000 rupees per annum;"Workfare Programme" means the Workfare Programme set up under section 41;"young person" means a person, other than a child, who is under the age of 18.[S. 2 amended by s. 3 of Act 6 of 2013 w.e.f. 11 June 2013.]

3. Application of Act

(1)Subject to subsection (2) and to any provisions to the contrary in any other enactment, this Act shall apply to every agreement.

(2)This Act shall not apply to—

(a)a public officer or a local government officer, except for sections 4, 20 (1), 54, 61 (1) (a) and (d) and (4), 62, 63 and 67 (1) (e) (i) in so far as it applies to such public officer or local government officer, (2) and (3) of this Act;

(b)a worker of a statutory body who is governed by the recommendations made by the Pay Research Bureau, except for Parts VIII and XI and sections 4, 20 (1), 46 (1), (2), (3), (4), (5), (5B), (7), (8), (9), (10), (11) and (12), 48, 61, 62, 63 and 67 (1) (e) (i) in so far as it applies to that worker, (2) and (3) of this Act.

[S. 3 amended by s. 12 (a) of Act 14 of 2009 w.e.f. 1 July 2009; s. 13 (a) of Act 27 of 2013 w.e.f. 21 December 2013.]

Part II – Agreements

4. Discrimination in employment and occupation

(1)

(a)No worker shall be treated in a discriminatory manner by his employer in his employment or occupation.

(b)No person shall be treated in a discriminatory manner by a prospective employer in respect of access to employment or occupation.

(2)Any distinction, exclusion or preference in respect of a particular occupation based on the inherent requirements thereof shall not be deemed to be discrimination.

(3)A person does not discriminate against another person by imposing or proposing to impose, on that other person, a condition, requirement or practice that has, or is likely to have, a disadvantaging effect, where the condition, requirement or practice is reasonable in the circumstances.

(4)The matters to be taken into account in determining whether or not a condition, requirement or practice is reasonable in the circumstances include—

(a)the nature and extent of the disadvantage resulting or likely to result, from the imposition or proposed imposition of the condition, requirement or practice;

(b)the feasibility of overcoming or mitigating the disadvantage; and

(c)whether the disadvantage is proportionate to the result sought to be achieved by the person who imposes, or proposes to impose the condition, requirement or practice.

(5)For the purpose of this section—"discrimination" includes affording different treatment to different workers attributable wholly or mainly to their respective descriptions by age, race, colour, caste, creed, sex, sexual orientation, HIV status, religion, political opinion, place of origin, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;"employment" or "occupation" includes access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.

5. Agreements

(1)Subject to subsection (3), no person shall enter into an agreement where remuneration is to be paid at intervals of more than one month.

(2)Any agreement which contains a provision inconsistent with subsection (1) shall, to the extent of the inconsistency, be void.

(3)Subject to subsections (3A) and (3B), where a worker, other than a migrant worker, has been in the continuous employment of an employer under one or more determinate agreements for more than 24 months, in a position which is of a permanent nature, the agreement shall, with effect from the date of the first agreement, be deemed to be of indeterminate duration.

(3A)An employer may enter into an agreement with a worker for a specified period of time—

(a)in respect of a specified piece of work;

(b)in replacement of another worker who is on approved leave or suspended from work;

(c)in respect of work and activity which are of a temporary, seasonal or short-term nature;

(d)for the purposes of providing training to the workforce;

(e)for a specific training contract; or

(f)in accordance with a specific scheme set up by the Government or a statutory corporation.

(3B)An agreement under subsections (3) and (3A) shall be made in writing.

(4)Where a worker—

(a)is required to report at a place of work, or conveyed there by his employer or his employer’s agent; and

(b)is found fit and willing to perform the work for which he was required, or conveyed,

the worker and the employer shall be deemed to have entered into an agreement.

(5)Where a worker is required to perform task work, his employer or his employer’s agent shall, before the work is commenced, inform the worker of the nature of the task he is required to perform and the rate at which he will be remunerated for that work.

[S. 5 amended by s. 4 of Act 6 of 2013 w.e.f. 11 June 2013.]

6. Capacity of workers

Notwithstanding any other enactment, a person who is of the age of 16 or more shall be competent to enter into an agreement and shall, in relation to the agreement and to its enforcement, be deemed to be of full age and capacity.

7. Liability for act or omission of another person

Notwithstanding any other enactment, no worker shall, by virtue of an agreement, be responsible for the act or omission of any other person.

8. Written particulars of work agreement

(1)Every employer shall provide to every worker engaged for more than 30 consecutive working days a written statement of particulars of employment in the form specified in the Second Schedule, or in such form, in French or Creole, as may be prescribed, within 14 days of the completion of 30 consecutive working days’ service.

(2)A copy of the statement of particulars shall be submitted to the Permanent Secretary within 30 days after the worker has completed 30 consecutive working days’ service.

[S. 8 amended by s. 5 of Act 6 of 2013 w.e.f. 11 June 2013.]

9. Continuous employment

(1)The continuous employment of a worker shall not be deemed to have been interrupted—

(a)by the worker’s absence from work—

(i)on any leave taken in accordance with this Act or any other enactment, agreement, collective agreement or award;

(ii)due to suspension from employment;

(iii)by reason of participation in a strike which is lawful under the Employment Relations Act; or

(iv)with the consent of his employer;

(b)on account of the limited number of days worked as specified in the agreement of a part-time worker;

(c)where the worker has been detained pending a police enquiry and he has been released before a period of 60 days from the last day he worked; or

(d)where the worker ceases to be in the employment of one employer and enters the employment of another employer under section 47 (3).

(2)—

[S. 9 amended by s. 6 of Act 6 of 2013 w.e.f. 11 June 2013.]

10. Consideration for full-time employment

(1)Where a vacancy occurs in the full-time workforce of an employer, priority of consideration for the full-time employment shall be given, as far as practicable, to a part-time worker or to a worker on determinate contract of employment in the same category and grade.

(2)Where there are 2 or more workers eligible under subsection (1), the employer shall make an offer to the more suitable worker, having regard to qualifications, merit, experience, performance and seniority.

11. Transfer to part-time work

A full-time worker may enter into an agreement with an employer to perform part-time work subject to the agreement—

(a)being in writing;

(b)being for a specified period of time; and

(c)providing for the option to the worker to revert to full-time work at the expiry of the specified period of the part-time work.

Part III – Minimum age for employment

12. Employment of children and young persons

(1)No person shall employ a child for employment or work in any occupation.

(2)No person shall employ, or continue to employ, a young person—

(a)on work which by its nature, or the circumstances in which it is carried out, is likely to jeopardise the health, safety, physical, mental, moral or social development of the young person; or

(b)after being notified in writing by the Permanent Secretary that the kind of work for which the young person is employed is unsuitable for the young person, or will interfere with the young person’s education.

13. Record of young persons

An employer shall keep a record of every young person employed by him stating—

(a)the full name of the young person;

(b)the address of the young person;

(c)the date of birth of the young person; and

(d)such other details as may be prescribed.

Part IV – Hours of work

14. Normal working hours

(1)The normal day’s work of a worker, other than a part-time worker or a watchperson—

(a)shall consist of 8 hours’ actual work; and

(b)may begin on any day of the week, whether or not on a public holiday.

(2)A worker, other than a part-time worker or a watchperson, and an employer may agree that the worker works in excess of the stipulated hours without added remuneration, if the number of hours covered in a fortnight does not exceed 90 hours, or such lesser number of hours as may be specified in an agreement.

(3)Where a daily paid worker, other than a part-time worker or watchperson, has completed 90 hours’ work or such lesser number of hours as may be specified in an agreement, in less than 12 days in a fortnight, he shall be paid 12 normal days’ basic wages in respect of that fortnight.

(4)A normal day’s work of a watchperson, other than a part-time watchperson—

(a)shall consist of 12 hours’ actual work; and

(b)may begin on any day of the week, whether or not on a public holiday.

(5)

(a)A worker shall be entitled to a rest day of at least 24 consecutive hours in every period of 7 consecutive days.

(b)Subject to paragraph (c), the rest day specified in paragraph (a) shall be a Sunday.

(c)Where, by nature of its operational requirements, an employer operates on a 7-day week, the rest day shall, at least twice a month, be a Sunday unless the worker and the employer agree otherwise.

(6)No person shall employ a young person in an industrial undertaking between 10.00 p.m. and 5.00 a.m.

(7)Every worker shall be entitled to a rest of not less than 11 consecutive hours in any day.

(8)—

[S. 14 amended by s. 12 (b) of Act 14 of 2009 w.e.f. 1 July 2009; s. 7 of Act 6 of 2013 w.e.f. 11 June 2013.]

15. Notional calculation of basic hourly rate

For the purposes of determining the hourly basic wage due for extra work or for any other reason, the number of hours of work shall notionally be calculated—

(a)for a monthly paid worker, on the basis of—

(i)312 hours in the case of a watchperson; or

(ii)195 hours in any other case;

(b)for a fortnightly paid worker, on the basis of—

(i)144 hours in the case of a watchperson; or

(ii)90 hours in any other case;

(c)for a weekly paid worker, on the basis of—

(i)72 hours in the case of a watchperson; or

(ii)45 hours in any other case; or

(d)for a daily paid worker, on the basis of—

(i)12 hours of work in the case of a watchperson; or

(ii)8 hours of work in any other case.

16. Overtime

(1)Subject to subsection (3)—

(a)a worker and an employer may agree on the number of hours of work to be performed in excess of the stipulated hours where the exigencies of an enterprise so require;

(b)no employer shall require a worker to perform work in excess of the stipulated hours unless he has given, as far as is practicable, at least 24 hours’ notice in advance to the worker of the extra work to be performed.

(2)A worker who does not wish to work in excess of the stipulated hours on a particular day shall notify his employer, at least 24 hours in advance, of his intention not to work on that day.

(3)Subject to subsection (5), where a—

(a)worker works on a public holiday, he shall be remunerated at twice the notional rate per hour for every hour of work performed;

(b)worker, other than a watchperson, performs more than 90 hours’ work or such lesser number of hours as may be specified in an agreement in a fortnight, not being the hours of work referred to in paragraph (a), he shall be remunerated at one and a half times the notional rate per hour for every hour of work performed; or

(c)watchperson performs more than 144 hours of work in any fortnight, not being the hours of work referred to in paragraph (a), he shall be remunerated at one and a half times the notional rate per hour for every hour of work performed.

(4)For the purpose of subsection (3) (b) and (c), the day on which a worker is on annual leave shall be reckoned in the computation of overtime.

(5)An agreement may stipulate that the remuneration provided for therein for a pay period includes payment for work on public holidays and for work in excess of the stipulated hours where—

(a)the maximum number of public holidays; and

(b)the maximum number of hours of overtime on a day other than a public holiday,

covered by the remuneration are expressly stated in the agreement.

17. Public holiday

(1)A daily paid worker who remains in continuous employment with the same employer for a period of 12 consecutive months shall be entitled during each subsequent period of 12 months while he remains in continuous employment, to a normal day’s pay in respect of every public holiday, other than a Sunday, on which he is not required to work that occurs while he remains in the continuous employment of the employer.

(2)Where a daily paid worker, referred to in subsection (1), is required to work on a public holiday, other than a Sunday, he shall be paid, in addition to the normal day’s pay provided for under subsection (1), any remuneration due under section 16.

(3)Where a worker, other than a daily paid worker, is required to work on a public holiday, other than a Sunday, he shall be paid, in addition to his normal wage, any remuneration due under section 16.

18. Meal and tea breaks

Every employer shall, unless the employer and worker agree otherwise, grant to the worker on each working day—

(a)a meal break of one hour not later than 4 consecutive hours of work; and

(b)one tea break of at least 20 minutes or 2 tea breaks of at least 10 minutes each.

19. Meal allowance

(1)Notwithstanding any other enactment or Remuneration Regulations, where a worker is required to perform more than 2 hours’ extra work after having completed his normal day’s work on any day of the week, whether or not a public holiday, he shall, in addition to any remuneration due for overtime work, be provided by the employer with an adequate free meal or be paid a meal allowance as specified in paragraph (a) of the Third Schedule.

(2)The meal allowance specified in subsection (1) shall be paid not later than on the last working day of the pay period.

[S. 19 amended by s. 8A of Act 6 of 2013 w.e.f. 11 June 2013; s. 13 (b) of Act 27 of 2013 w.e.f. 21 December 2013.]

Part V – Remuneration

20. Equal remuneration for work of equal value

(1)Every employer shall ensure that the remuneration of any worker shall not be less favourable than that of another worker performing work of equal value.

(2)Where an employer has recourse to the services of a job contractor, the job contractor shall ensure that the remuneration of any worker shall not be less favourable than that of another worker performing the work of equal value.

[S. 20 amended by s. 9 of Act 6 of 2013 w.e.f. 11 June 2013.]

21. Payment of remuneration

(1)Every employer shall pay remuneration to a worker at monthly intervals, unless the parties agree to payment at shorter intervals.

(2)Every employer shall pay remuneration directly to every worker—

(a)in legal tender only, unless there is an agreement for payment by cheque or into the worker’s bank account;

(b)during working hours at the place of work, when paid in legal tender or by cheque; and

(c)not later than the last working day of the pay period.

(3)Every employer shall—

(a)issue to every worker, at the time of paying remuneration, with a payslip in the form specified in the Fourth Schedule; and

(b)cause every worker, to whom remuneration is paid in legal tender or by cheque, to sign or affix his thumbprint to a remuneration book, stating the particulars of the remuneration paid.

(4)No employer shall, in respect of the payment of remuneration—

(a)restrict, by agreement or otherwise, the freedom of a worker to determine where and how his remuneration is to be spent; and

(b)pay, require or permit remuneration to be paid in a shop, or cause or allow the owner of the shop or his representative or any person employed by him, to pay remuneration due to the worker, unless the worker is employed therein.

22. Deduction

(1)No employer shall deduct any amount from a worker’s remuneration, other than an amount which—

(a)is authorised by the worker in writing—

(i)and which is due to the employer in recovery of an advance made on remuneration, provided the deduction does not exceed one-fifth of the remuneration due for a pay period; or

(ii)where the worker wishes to pay the amount to any body or fund;

(b)is deducted in accordance with any enactment or a Court order.

(2)No employer shall deduct any amount from a worker’s remuneration, which, in the aggregate, exceeds one-half of the worker’s remuneration for any pay period.

(3)No employer shall, in respect of the payment of remuneration, deduct any amount—

(a)by way of fine or compensation for poor or negligent work or for damage caused to the property of the employer;

(b)as a direct or indirect payment for the purpose of obtaining or retaining employment;

(c)by way of discount, interest or any charge on account of any advance of remuneration made to a worker.

23. Payment of remuneration to a part-time worker

(1)Every employer shall pay to a part-time worker not less than the basic wage or salary prescribed in any enactment or specified in a collective agreement except where the enactment overrides the agreement, for his category or grade, whichever is the higher, calculated proportionately on the notional hourly rate and increased by not less than 5 per cent.

(2)Where no basic wage or salary is prescribed in an enactment or specified in a collective agreement, every employer shall pay to a part-time worker not less than the basic wage or salary of a comparable full-time worker, calculated proportionately on the notional hourly rate and increased by not less than 5 per cent.

(3)Any award made by the Tribunal on the basic wage or salary of a part-time worker shall supersede any enactment or collective agreement providing for such basic wage.

24. Payment of remuneration in special circumstances

(1)An employer shall pay to a worker—

(a)a full day’s remuneration where—

(i)the employer is unable to provide work to the worker; or

(ii)owing to climatic conditions, power failure, or breakdown in machinery or appliances, work has been stopped after the worker has worked for more than 2 hours; or

(b)half a day’s remuneration where owing to climatic conditions, power failure or breakdown in machinery or appliances—

(i)the employer is of opinion that no work can be performed; or

(ii)work has been stopped before the worker has completed 2 hours of work.

(2)Subject to section 36 (1), an employer may require a worker to work temporarily for a time shorter than that specified in his agreement at a reduced remuneration, subject to the approval of the Permanent Secretary.

(3)A worker who accepts the reduction in working time and remuneration shall be entitled to accept work for another employer during the time no work is provided to him.

(4)Where a cyclone warning class III or IV is in force, a worker may absent himself from work and the employer shall pay remuneration to the worker at the normal rate in respect of the period of absence.

(5)Subsection (4) shall apply until—

(a)the cyclone warning class III or IV has been removed; and

(b)

(i)the employer provides a means of transport to the worker to attend his place of work; or

(ii)public transport is available.

(6)Where a worker works on a day on which a cyclone warning class III or IV is in force, the worker shall, in addition to any remuneration due to him, be entitled to—

(a)an allowance equal to 3 times the basic rate per hour in respect of every hour of work performed; and

(b)adequate free meals.

(7)No remuneration shall be payable to or recoverable by a worker for any period—

(a)during which the worker was in lawful custody;

(b)spent by the worker in a reform institution; or

(c)spent by the worker in going to, attending or returning from any court in relation to proceedings in which he has been convicted of an offence.

25. Payment of remuneration due on termination of agreement

(1)Every employer shall pay any remuneration due to a worker on the termination of the worker’s agreement.

(2)—

(3)Where notice of termination of an agreement has been given under section 37, the employer shall, on or before the date of expiry of the notice, pay to the worker any remuneration due.

(4)Where an agreement is terminated otherwise than by notice under section 37, or by expiry of the period for which the agreement was agreed to last, the employer shall pay to the worker any remuneration due on the termination of the employment.

(5)Where an agreement is terminated by an employer otherwise than on grounds of misconduct, and at the time of termination the worker has not taken any of the annual leave to which he is entitled under section 27 or any other enactment, the employer shall, in lieu of leave, pay to the worker the remuneration to which the worker would have been entitled if he had worked.

[S. 25 amended by s. 10 of Act 6 of 2013 w.e.f. 11 June 2013.]

Part VI – Other conditions of employment

26. Transport of workers

(1)An employer shall, where the distance between a worker’s residence and his place of work exceeds 3 kilometres, provide the worker with free transport from the worker’s residence to his place of work and from the worker’s place of work to his residence, or pay him the equivalent of the return bus fare.

(2)An employer shall, irrespective of the distance between a worker’s residence and his place of work, provide the worker with free transport from the worker’s residence to his place of work and from the worker’s place of work to his residence, where the worker is required by his employer to attend or cease work at a time when no public bus service is available.

(2A)When an employer provides a worker with a means of transport under subsection (1), the employer shall pay to the worker wages at the normal rate in respect of any waiting time exceeding 45 minutes after he has stopped work.

(3)No person shall, except with the Permanent Secretary’s written authorisation, transport a worker or cause a worker to be transported in—

(a)a goods vehicle; or

(b)any other vehicle,

unless the vehicle is provided with an easy means of entering into, and alighting therefrom, which does not involve climbing.

(4)Any vehicle, other than a bus or a motor-car, used to transport a worker to and from his place of work, shall be licensed for that purpose by the National Transport Authority.

(5)The Minister may, by regulations, prescribe the categories of workers to whom transport facilities shall be provided and the conditions under which such workers shall be transported.

[S. 26 amended by s. 10A of Act 6 of 2013 w.e.f. 11 June 2013.]

27. Annual leave

(1)Subject to subsection (7), every worker, other than a part-time worker, who remains in continuous employment with the same employer for a period of 12 consecutive months shall be entitled, during each subsequent period of 12 months while he remains in continuous employment, to 20 working days’ annual leave or such similar leave under any other name.

(2)Notwithstanding subsection (1), every worker shall be entitled to 2 days’ leave in every year, in addition to the leave specified in—

(a)subsection (1);

(b)any other enactment;

(c)any agreement;

(d)any collective agreement; or

(e)any award following arbitration.

(2A)Every worker, other than a part-time worker, who remains in continuous employment with the same employer for a period of 6 consecutive months and who has been present on all the working days during that period, shall be entitled during each subsequent month up to the twelfth month, while he remains in continuous employment with the same employer, to one day’s annual leave up to a maximum of 6 days’ annual leave.

(3)Where a part-time worker remains in continuous employment with the same employer for a period of 12 consecutive months, he shall be entitled, during each subsequent period of 12 months, to the number of days of annual leave on full pay computed in accordance with the following formula—N/W × Y where "N" means the number of days of work he is required to perform in a week, "W" means the number of working days in a week of a comparable full-time worker and "Y" means the number of days of annual leave to which a worker is entitled under subsection (1) or under any Remuneration Regulations, as the case may be.

(4)Where an employer and a worker are unable to agree as to when the leave under this section is to be taken, half of the leave period shall be fixed by the employer and the other half by the worker.

(5)Where a worker has not taken or been granted all the leave to which he is entitled under this section, he shall be paid a normal day’s wage in respect of each day’s leave still due at the end of the period of 12 consecutive months.

(6)Any agreement by a worker to relinquish his annual leave entitlement under this section shall be null and void.

(7)This section shall be subject to any collective agreement or award, or any other enactment.

[S. 27 amended by s. 11 of Act 6 of 2013 w.e.f. 11 June 2013.]

28. Sick leave

(1)

(a)Subject to subsections (3) and (4), every worker, other than a part-time worker, who remains in continuous employment with the same employer for a period of 12 consecutive months shall be entitled, during each subsequent period of 12 months while he remains in the continuous employment, to 15 working days’ sick leave on full pay.

(2)

(a)Where a part-time worker remains in continuous employment with the same employer for a period of 12 consecutive months, he shall be entitled, during each subsequent period of 12 months, to the number of days of sick leave on full pay computed in accordance with the following formula—N/W x Y, where "N" means the number of days of work he is required to perform in a week, "W" means the number of working days in a week of a comparable full-time worker and "Y" means the number of days of sick leave to which a worker is entitled under subsection (1) or under any Remuneration Regulations, as the case may be.

(b)Where, at the end of the period of 12 consecutive months, a worker has not taken the sick leave to which he is entitled under paragraph (a), any outstanding sick leave shall be accumulated up to a maximum number of days in accordance with the following formula—N/W x 90 normal working days, where "N" means the number of days of work he is required to perform in a week and "W" means the number of working days in a week of a comparable full-time worker.

(2A)Every worker, other than a part-time worker, who remains in continuous employment with the same employer for a period of 6 consecutive months and who has been present on all the working days during that period shall be entitled, during each subsequent month up to the twelfth month, while he remains in continuous employment with that employer, to one day’s sick leave for each month of service up to a maximum of 6 days’ sick leave.

(3)Where a worker has exhausted the sick leave provided for under subsection (1) (a) or (2) (a) and he has wholly spent time—

(a)in a hospital, public or private;

(b)for his convalescence after discharge from a public or private hospital, certified by a medical practitioner,

any additional sick leave granted may be deducted from the accumulated sick leave.

(4)

(a)Where a worker absents himself on ground of illness, he shall, except where the employer is aware of the nature of the illness, notify his employer of his illness as soon as possible.

(b)Where a worker, referred to in paragraph (a), remains ill for more than 3 consecutive working days, he shall forward to his employer a medical certificate—

(i)on the fourth day of absence; or

(ii)where the worker is admitted to a hospital, public or private, within 3 days following his discharge.

(5)A medical certificate referred to in subsection (4) (b) shall not be valid in respect of any period in excess of 3 days before the day on which the medical certificate was issued.

(6)Every employer may, at his own expense, cause a worker who is absent on ground of illness to be examined by a medical practitioner.

[S. 28 amended by s. 12 of Act 6 of 2013 w.e.f. 11 June 2013.]

29. Medical facilities

(1)Every person who employs 10 or more workers shall provide appropriate arrangements for medical and health requirements of his workers at work.

(2)Where a worker suffers injury or illness at work necessitating his removal to his home or to a hospital or other similar institution, the employer shall promptly, and at his own expense, provide an appropriate means of conveyance for the worker.

(3)Notwithstanding subsection (1), the Minister may make regulations prescribing measures for every employer to make arrangements for, or to facilitate, medical examination or medical tests of his workers by any public or private hospital or para-medical units, as the case may be.

30. Maternity benefits

(1)Notwithstanding any other enactment or Remuneration Regulations, a female worker who remains in continuous employment with the same employer for a period of 12 consecutive months immediately preceding the beginning of leave under this section shall, on production of a medical certificate, be entitled to 14 weeks maternity leave on full pay to be taken either—

(a)before confinement, provided that at least 7 weeks maternity leave shall be taken immediately following the confinement; or

(b)after confinement.

(1A)Notwithstanding any other enactment or Remuneration Regulations and subject to subsection (2), where a female worker, who remains in continuous employment with the same employer for a period of 12 consecutive months, gives birth to a child, she shall, on production of a medical certificate, be paid within 7 days of her confinement an allowance as specified in paragraph (b) of the Third Schedule.

(2)Where a part-time female worker remains in continuous employment with the same employer for a period of 12 consecutive months immediately preceding the beginning of leave, she shall, on production of a medical certificate, be entitled to an allowance computed in accordance with the following formula—

(3)A female worker who reckons less than 12 months’ continuous employment shall not be entitled to the benefits specified in subsection (1A) or (2), as the case may be, but shall be entitled to the maternity leave specified in subsection (1) without pay.

(4)Where a female worker suffers a miscarriage which is duly certified by a medical practitioner, she shall be entitled to 2 weeks’ leave on full pay immediately after the miscarriage.

(5)

(a)Notwithstanding any other enactment or Remuneration Regulations, where a female worker, who has been in continuous employment with the same employer for a period of 12 consecutive months immediately preceding the beginning of leave under this section, gives birth to a still-born child, she shall, on production of a medical certificate, be entitled to 14 weeks leave on full pay.

(b)A female worker who reckons less than 12 months continuous employment shall be entitled to the leave specified in paragraph (a) without pay.

(6)

(a)A female worker who is nursing her unweaned child shall, for that purpose, be entitled every day at a time convenient to her and having regard to the needs of the child to at least—

(i)2 breaks of half-hour; or

(ii)one break of one hour.

(b)The break specified in paragraph (a) shall—

(i)be for a period of 6 months from the date of confinement or such longer period as may be recommended by a medical practitioner; and

(ii)not be deducted from the number of hours of work of the female worker.

(7)An employer shall not require a female worker to perform work in excess of a normal day’s work, 2 months before her confinement.

(8)Subject to medical recommendation, a female worker who is pregnant shall not be required to perform duties—

(a)requiring continuous standing; or

(b)that may be detrimental to her health and that of her baby.

(9)An employer shall not give to a female worker, who is on maternity leave, notice of termination of employment—

(a)during such leave; or

(b)that would expire during such leave,

for any reason, unless the grounds relate to the economic, technological, structural or similar nature affecting the employer’s activities.

[S. 30 amended by s. 12 (c) of Act 14 of 2009 w.e.f. 1 July 2009; s. 13 of Act 6 of 2013 w.e.f. 11 June 2013; s. 3 of Act 10 of 2015 w.e.f. 21 May 2015.]

31. Paternity leave

(1)Notwithstanding any Remuneration Regulations or any other enactment, a male worker, other than a male part-time worker, shall, subject to subsection (1B), be entitled to 5 continuous working days’ leave, to be known as paternity leave.

(1A)A male part-time worker shall, subject to subsection (1B), be entitled to the number of days of paternity leave calculated in accordance with the formula specified as follows—

(1B)The entitlement of paternity leave under subsection (1) or (1A) shall be subject to the production by the worker of—

(a)a medical certificate certifying that his spouse has given birth to his child; and

(b)a written statement signed by him that he is living with his spouse under a common roof.

(2)Subject to subsections (1) and (1A), the paternity leave shall—

(a)begin within one week from the birth of the child; and

(b)be on full pay where the worker has been in continuous employment with the same employer for a period of at least 12 months prior to the date of birth of the child.

(3)In this section—"spouse" means the person with whom the worker had contracted civil or religious marriage.

[S. 31 amended by s. 12 (d) of Act 14 of 2009 w.e.f. 1 July 2009; s. 14 of Act 6 of 2013 w.e.f. 11 June 2013.]

31A. End of year bonus

(1)Where a worker remains in continuous employment with the same employer in a year, the worker shall be entitled at the end of that year to a bonus equivalent to one-twelfth of his earnings for that year.

(2)Every worker who—

(a)takes employment during the course of a year;

(b)is still in employment as at 31 December in that year; and

(c)has performed a number of normal days’ work with that employer, equivalent to not less than 80 per cent of the number of working days, during his employment in that year,

shall be entitled at the end of that year to a bonus equivalent to one-twelfth of his earnings for that year.

(3)A sum amounting to 75 per cent of the expected bonus specified in subsections (1) and (2) shall be paid to the worker not later than 5 clear working days before 25 December of that year, and the remaining balance shall be paid to him not later than on the last working day of the same year.

(4)For the purpose of subsection (2), every day on which a worker—

(a)is absent with the employer’s authorisation;

(b)reports for work but is not offered work by the employer; or

(c)is absent on grounds of—

(i)illness after notification to the employer under section 28(4) (a); or

(ii)injury arising out of and in the course of his employment,

shall count as a working day.

(5)In this section—"earnings"—

(a)means basic wages; and

(b)includes—

(i)wages earned for overtime under section 16;

(ii)wages paid under sections 17, 24, 27 (1), (2), (2A) and (3), 28, 30 (1), (4) and (5)(a) and 31; and

(iii)any sum of money, excluding commission, by whatever name called, paid to a worker, in respect of any work performed by him, in addition to the basic wages agreed upon between him and the employer and which is related to productivity.

[S. 31A inserted by s. 14A of Act 6 of 2013 w.e.f. 11 June 2013; s. 13 (d) of Act 27 of 2013 w.e.f. 21 December 2013.]

32. Other facilities

(1)Where the Permanent Secretary is of the opinion that no adequate arrangements have been made to nurse the child of a worker, he may, after consultation with a Government medical practitioner, give such directions by written notice to the employer as he may determine.

(2)An employer shall comply with the directions given to him by the Permanent Secretary under subsection (1).

Part VII – Entitlement of workers in the sugar industry

33. Interpretation of Part VII

In this Part—"employer" means a person who owns a sugar factory or land under sugar cane cultivation of an extent exceeding 10.5522 hectares (25 arpents) in aggregate;"Sugar Industry Remuneration Regulations" means—(a)the Sugar Industry (Agricultural Workers) (Remuneration Order) Regulations 1983; or(b)the Sugar Industry (Non-Agricultural Workers) (Remuneration Order) Regulations 1985,as the case may be;"worker"—(a)has the same meaning as in regulation 2 (1) of any of the Sugar Industry Remuneration Regulations;(b)includes a person specified in regulation 2 (2) of the Sugar Industry (Non-Agricultural Workers) (Remuneration Order) Regulations 1985.[S. 33 amended by s. 15 of Act 6 of 2013 w.e.f. 11 June 2013.]

34. ***

35. Workers employed by job contractor

(1)Where a worker is employed by a job contractor for the purpose of—

(a)land preparation, growing, harvesting or processing of sugar cane and the construction, repair or maintenance of roads, bridges or water works, structures or buildings, wholly or substantially required for the purposes of the sugar industry and any other work incidental to the exploitation of land; or

(b)the transport of canes, sugar, materials or supplies used in connection with any work specified in paragraph (a),

this Act and the Sugar Industry Remuneration Regulations shall apply to the job contractor in the same manner as they apply to an employer in those enactments.

(2)

(a)Subject to paragraph (b), where an employer has recourse to one or more job contractors, the total number of man-days performed in any crop year by—

(i)workers employed by the job contractor; and

(ii)seasonal workers employed by the employer,

shall be determined by the Mauritius Cane Industry Authority, in consultation with the Ministry responsible for the subject of labour, recognised trade unions and the employers, on or before 30 April of each year for the following crop year.

(b)Where an employer has recourse to one or more job contractors, or intends to employ seasonal workers, he shall, on or before 31 March of each year inform the Mauritius Cane Industry Authority of the number of seasonal workers he will require for the following crop year.

(c)The number of seasonal workers to be required under paragraph (b) shall be determined by the Mauritius Cane Industry Authority, in consultation with the recognised trade unions and the employers.

(2A)The amount referred to in subsection (2) shall be arrived at after taking into consideration the award of the Arbitration Panel dated 31 July 2015.

(3)Every employer shall, on or before 31 January of every year, submit to the Permanent Secretary separate returns on agricultural workers and nonagricultural workers, showing in respect of the preceding year—

(a)the number of workers employed by job contractors under subsection (2) (a) (i);

(b)the number of seasonal workers employed by him under subsection (2) (a) (ii);

(c)the number of workers employed by him under section 34; and

(d)the number of man-days performed by the workers referred to in paragraphs (a), (b) and (c).

(4)In this section—"Arbitration Panel" means the Panel set up to look into unresolved issues relating to a labour dispute between the recognised Joint Negotiating Panel representing the recognised trade unions of the sugar industry and the then Mauritius Sugar Producers Association.

[S. 35 amended by s. 15 of Act 6 of 2013 w.e.f. 11 June 2013; s. 18 (1) (a) of Act 34 of 2016 w.e.f. 1 January 2017.]

Part VIII – Termination of agreement

36. Termination of agreement

(1)Subject to subsections (3), (4) and (5)—

(a)every determinate agreement of which the duration does not exceed 24 months; or

(b)every agreement entered into under section 5 (3A),

shall terminate on the last day of the period agreed upon by the employer and the worker.

(2)—

(3)Where a worker is ill-treated by his employer, he may claim that the agreement has been terminated by his employer.

(4)Where an employer fails to pay the remuneration due under the agreement to a worker, the latter may claim that the agreement has been terminated by his employer.

(5)An agreement shall not be broken by a worker where he absents himself from work for more than 2 consecutive working days without good and sufficient cause for a first time unless the employer proves that the worker has, after having been given written notice—

(a)by post with advice of delivery; or

(b)by delivery at the residence of the worker,

requiring him to resume his employment, failed to do so within a time specified in the notice which shall not be less than 24 hours from receipt of the notice.

[S. 36 amended by s. 16 of Act 6 of 2013 w.e.f. 11 June 2013.]

37. Notice of termination of agreement

(1)Subject to section 36 (1), a party to an agreement, may, except where he is prohibited by an enactment from doing so, terminate the agreement on the expiry of a notice given by him to the other party of his intention to terminate the agreement.

(2)The employer shall, at the time of notifying a worker of the termination of his employment, state the reason of such termination.

(3)Notice may be verbal or written and may, subject to subsection (4), be given at any reasonable time.

(4)Subject to any provision of an agreement, the length of the notice to be given under subsection (1) shall be of 30 days.

(5)Any party may, in lieu of giving notice of termination of agreement, pay to the other party the amount of remuneration the worker would have earned, had he remained in employment during the period of notice.

(6)Subject to section 39B (2), where an employer terminates the employment of a worker, he shall, on the date of the termination of the employment, give written notice of that fact to the Permanent Secretary.

[S. 37 amended by s. 12 (e) of Act 14 of 2009 w.e.f. 1 July 2009; s. 17 of Act 6 of 2013 w.e.f. 11 June 2013.]

38. Protection against termination of agreement

(1)An agreement shall not be terminated by an employer by reason of—

(a)a worker’s race, colour, caste, national extraction, social origin, pregnancy, religion, political opinion, sex, sexual orientation, HIV status, marital status or family responsibilities;

(b)a worker’s absence from work during maternity leave;

(c)a worker’s temporary absence from work because of injury or sickness duly notified to the employer and certified by a medical practitioner;

(d)a worker becoming or being a member of a trade union, seeking or holding trade union office, or participating in trade union activities outside working hours or, with the consent of the employer, within working hours;

(e)the worker’s filing in good faith of a complaint, or participating in proceedings against an employer involving alleged breach of any terms and conditions of employment;

(f)a worker’s exercise of any of the rights provided for in this Act or other enactment, or in such agreement, or collective agreement or award.

(2)No employer shall terminate a worker’s agreement—

(a)for reasons related to the worker’s misconduct, unless—

(i)he cannot in good faith take any other course of action;

(ii)the worker has been afforded an opportunity to answer any charge made against him in relation to his misconduct;

(iii)he has within, 10 days of the day on which he becomes aware of the misconduct, notified the worker of the charge made against the worker;

(iv)the worker has been given at least 7 days’ notice to answer any charge made against him; and

(v)the termination is effected not later than 7 days after the worker has answered the charge made against him, or where the charge is subject of an oral hearing, after the completion of such hearing;

(b)unless, where an alleged misconduct is the subject of criminal proceedings—

(i)the employer has afforded the worker an opportunity to answer any charge made against him in relation to his misconduct;

(ii)he has, within 10 days of the day on which he becomes aware of the conviction of the worker by the court of first instance, notified the worker of the charge made against the worker;

(iii)the worker has been given at least 7 days’ notice to answer the charge made against him; and

(iv)the termination is effected not later than 7 days after the worker has answered the charge made against him, or where the charge is subject of an oral hearing, after the completion of such hearing;

(c)in cases not covered by paragraphs (a) and (b), unless the termination is effected within 7 days from the day the employer becomes aware of the misconduct.

(3)No employer shall terminate a worker’s agreement for reasons related to the worker’s poor performance, unless—

(a)he cannot in good faith take any other course of action;

(b)the worker has been afforded an opportunity to answer any charge made against him related to his alleged poor performance;

(c)the worker has been given at least 7 days’ notice to answer any charge made against him; and

(d)the termination is effected not later than 7 days after the worker has answered the charge made against him, or where the charge is subject of an oral hearing, after the completion of such hearing.

(4)Where the opportunity afforded to a worker to answer any charge made against him under subsection (2) (a) (ii), (2) (b) (i) or (3) (b) is the subject of an oral hearing, he may have the assistance of—

(a)a representative of his trade union or his legal representative, or both; or

(b)an officer, where he is not assisted as specified in paragraph (a).

(4A)The oral hearing referred to in subsection (4) shall be presided by a person who has not been involved in the investigation and who is able to make an independent decision.

(4B)The worker and the employer may, during the oral hearing specified in subsection (4), negotiate for the payment of compensation with a view to promoting a settlement.

(4C)Where a settlement is reached under subsection (4B)—

(a)the worker shall not be entitled to join the Workfare Programme; and

(b)the employer shall not be required to pay the recycling fee under section 47 (1).

(5)Any written statement acknowledging guilt by a worker obtained at the instance of his employer shall not be admissible in evidence before any authority or any Court.

(6)

(a)A notification of a charge, a notice to answer the charge and a notification of a termination of agreement, under subsections (2) and (3), to a worker shall be issued by—

(i)causing the notification or notice to be handed over to the worker in person; or

(ii)sending the notification or notice by registered post to the usual or last known place of residence of the worker.

(b)Where a worker—

(i)refuses to accept delivery of the notification or notice; or

(ii)fails to take delivery of the notification or notice after being notified that it awaits him at a specified post office,

the notification or notice shall be deemed to have been duly served on the worker on the day he refuses to accept delivery thereof or is notified that it awaits him at the specified post office.

(7)Where an employer suspends a worker pending the outcome of disciplinary proceedings against the worker on account of the worker’s misconduct or poor performance—

(a)any period of such suspension shall be on full pay;

(b)any extension to the delay provided for under subsection (2) (a) (iv), (2) (b) (iii) or (3) (c) made by or on behalf of the worker, shall be on full pay for a period not exceeding 10 days, where the worker is found not guilty of the charge made against him.

(8)No employer shall suspend a worker unless he has informed the worker of the reasons for his suspension.

(9)Any suspension without pay as disciplinary action following a hearing shall not exceed 4 working days.

[S. 38 amended by s. 18 of Act 6 of 2013 w.e.f. 11 June 2013.]

39. Worker under notice of termination

During the period when a worker is under notice of termination of agreement under section 37, the employer shall, on satisfactory proof of the purpose of the request, allow the worker reasonable time-off, without loss of pay, to seek further employment.

Part VIIIA – Reduction of workforce and closing down of enterprise

[Part VIIIA inserted by s. 19 of Act 6 of 2013 w.e.f. 11 June 2013.]

39A. Employment Promotion and Protection Division

(1)There shall be for the purposes of this Act a division of the Tribunal which shall be known as Employment Promotion and Protection Division.

(2)The Employment Promotion and Protection Division shall—

(a)be presided by the President or Vice-President of the Tribunal; and

(b)consist of 2 independent members appointed under section 85 (2) (c) of the Employment Relations Act with proven experience in the field of employment relations and finance, respectively.

(3)The Employment Promotion and Protection Division shall deal with all cases referred to the Tribunal under this Part, other than section 39B (11).

[S. 39A inserted by Act 6 of 2013 w.e.f. 11 June 2013.]

39B. Reduction of workforce

(1)In this section, "employer" means an employer of not less than 20 workers.

(2)An employer who intends to reduce the number of workers in his employment either temporarily or permanently or close down his enterprise shall give written notice of his intention to the Permanent Secretary, together with a statement of the reasons for the reduction of workforce or closing down, at least 30 days before the reduction or closing down, as the case may be.

(3)Notwithstanding this section, an employer shall not reduce the number of workers in his employment either temporarily or permanently, or close down his enterprise unless he has—

(a)in consultation with the trade union recognised under section 38 of the Employment Relations Act, explored the possibility of avoiding the reduction of workforce or closing down by means of—

(i)restrictions on recruitment;

(ii)retirement of workers who are beyond the retirement age;

(iii)reduction in overtime;

(iv)shorter working hours to cover temporary fluctuations in manpower needs; or

(v)providing training for other work within the same enterprise;

(b)where redundancy has become inevitable—

(i)established the list of workers who are to be made redundant and the order of discharge on the basis of the principle of last in first out; and

(ii)given the written notice required under subsection (2).

(4)Where an employer reduces his workforce or closes down his enterprise, the employer and the worker may agree on the payment of compensation by way of a settlement.

(5)

(a)Where there has not been any settlement for payment of compensation, a worker, as defined in section 40, may—

(i)join the Workfare Programme in accordance with Part IX; or

(ii)register a complaint with the Permanent Secretary.

(b)

(i)A worker shall register his complaint with the Permanent Secretary within 14 days of the termination of his employment.

(ii)The Permanent Secretary may, on reasonable cause shown, extend the time limit specified in subparagraph (i).

(c)The Permanent Secretary shall enquire into the complaint with a view to promoting a settlement between the parties.

(6)Where no settlement is reached under subsection (5), the Permanent Secretary—

(a)shall, subject to subsection (7) (a), refer the matter to the Tribunal, if he is of the opinion that the worker has a bona fide case and thereupon the worker as defined in section 40 shall be entitled to join the Workfare Programme;

(b)may, subject to subsection (7) (b), not refer the matter to the Tribunal, if he is of the opinion that the worker does not have a bona fide case and shall advise the worker as defined in section 40 that he may apply for admission to the Workfare Programme.

(7)

(a)Where a worker referred to in subsection (6) (a) institutes proceedings before the Court to claim severance allowance under section 46 (5), the Permanent Secretary shall not refer his case to the Tribunal but the worker shall be entitled to be admitted to the Workfare Programme if he is a worker as defined in section 40.

(b)Where a worker referred to in subsection (6) (b) institutes proceedings on his own before the Court and the Court gives judgment in favour of the worker under section 46 (5), that worker shall, as from the date of judgment, be eligible to be admitted to the Workfare Programme, if he is a worker as defined in section 40.

(8)

(a)Where a matter is referred to the Tribunal by the Permanent Secretary, the Tribunal shall proceed to hear the case and give its award within 30 days of the date of the referral.

(b)The Tribunal may, in exceptional circumstances, extend the delay specified in paragraph (a) for another period of 30 days.

(9)Where the Tribunal finds that the reduction of workforce is unjustified, it may, with the consent of the worker, order that that worker—

(a)be reinstated in his former employment with payment of remuneration from the date of the termination of his employment to the date of his reinstatement; or

(b)be paid severance allowance in accordance with section 46 (5).

(10)Where the Tribunal finds that the closing down is unjustified, it may order the employer to pay to the worker severance allowance in accordance with section 46 (5).

(11)Where an employer reduces the number of workers in his employment either temporarily or permanently, or closes down his enterprise, in breach of subsections (2) and (3), he shall, unless reasonable cause is shown, pay to the worker whose employment is terminated a sum equal to 30 days’ remuneration in lieu of notice together with severance allowance, wherever applicable, as specified in section 46 (5).

(12)

(a)Where a settlement is reached under subsection (4) or (5) (c)—

(i)the worker shall not be entitled to join the Workfare Programme under section 41; and

(ii)the employer shall not be required to pay the recycling fee under section 47 (1).

(b)Where there has been no settlement under subsections (4) and (5) or reinstatement under subsection (9), the employer shall pay the recycling fee specified in section 47.

[S. 39B inserted by s. 19 of Act 6 of 2013 w.e.f. 11 June 2013.]

Part IX – Workfare Programme

40. Interpretation of Part IX

In this Part—"basic wage or salary", in relation to a worker, means—(a)where the terms and conditions of employment of the worker are governed by Remuneration Regulations, an arbitral award or an agreement, whether oral or written, express or implied, the basic wage or salary prescribed in the Remuneration Regulations, award or agreement, or where the employer pays a higher wage or salary, the higher wage or salary so paid, but does not include any allowance by any name called, and whether paid in cash or in kind;(b)in any other case, all the emoluments received by the worker, excluding any bonus or overtime, butshall not exceed the maximum basic wage or salary as specified in the Second Schedule to the National Savings Fund (Collection of Contributions) Regulations 1997;"worker" does not include—(a)a public officer;(b)a person employed by a statutory body or by a local authority, other than a worker who is an insured person under section 13 (1) of the National Pensions Act;(c)a part-time worker;(d)a migrant worker or a non-citizen;(e)a worker employed in the sugar industry who voluntarily retires—(i)in the context of a Voluntary Retirement Scheme under section 23 of the Sugar Industry Efficiency Act;(ii)an Early Retirement Scheme under section 23A of the Sugar Industry Efficiency Act; or(iii)a factory closure pursuant to section 30 of the Mauritius Cane Industry Authority Act;(f)a person reckoning less than 180 days’ continuous employment with an employer as at the date of the termination of his employment.[S. 40 amended by s. 12 (f) of Act 14 of 2009 w.e.f. 1 July 2009; s. 20 of Act 6 of 2013 w.e.f. 11 June 2013.]

41. Workfare Programme

(1)There is set up for the purposes of this Act a Workfare Programme.

(2)The Workfare Programme shall consist of—

(a)the payment of a Transition Unemployment Benefit to every worker whose agreement has been terminated and who opts to join the Workfare Programme;

(b)assistance by the relevant bodies referred to in section 43 (2) for any of the following activities—

(i)job placement;

(ii)training and re-skilling; or

(iii)starting up of a small business.

42. Eligibility to join the Workfare Programme

(1)Subject to section 46 and subsection (3), a worker shall be entitled to joint the Workfare Programme where—

(a)his agreement is terminated by an employer—

(i)for the reasons specified in section 36 (3) and (4);

(ii)in contravention of section 38 (1), (2) and (3);

(iii)for reason of—

(A)economic, technological, structural or similar nature affecting the enterprise;

(B)misconduct; or

(C)poor performance;

(iv)without any justification;

(b)he has been in the continuous employment of an employer for a period of not less than 180 days on a determinate agreement and the employer terminates the agreement, or the agreement comes to an end.

(2)

(a)A worker who elects to join the Workfare Programme shall register with the Permanent Secretary within 14 days of the termination of his employment.

(b)The Permanent Secretary may, on reasonable cause shown to his satisfaction, extend the time limit within which registration under paragraph (a) may be made.

(3)

(a)Where the agreement of a worker or a group of workers is terminated, the worker, the group of workers or the trade union recognised by the employer may agree on the quantum and the payment of a compensation with the employer.

(b)Where an agreement has been reached under paragraph (a)—

(i)the worker shall not be entitled to join the Workfare Programme under section 41; and

(ii)the employer shall not be required to pay the recycling fee under section 47 (1).

[S. 42 amended by s. 12 (g) of Act 14 of 2009 w.e.f. 1 July 2009; s. 21 of Act 6 of 2013 w.e.f. 11 June 2013.]

43. Election for Workfare Programme

(1)A worker whose employment is terminated on grounds specified in section 42 (1) and who is registered in the Workfare Programme shall be entitled only to benefits under the Workfare Programme.

(2)Where a worker registers in the Workfare Programme, he shall, within 14 days, opt for any of the activities under section 41 (2) (b) and the Permanent Secretary shall refer the worker to—

(a)the Employment Service of the Ministry for job placement;

(b)such institutions as may be prescribed for—

(i)assistance in finding training or re-skilling opportunities; or

(ii)self employment activities, including starting up of a small business.

(c)—

(3)On election by the worker of any of the activities of the Workfare Programme, the Permanent Secretary shall, within 14 days of the date of the election by the worker, notify the Permanent Secretary of the Ministry responsible for the subject of social security in the form specified in the Fifth Schedule.

(3A)Where a worker becomes entitled to the payment of a Transition Unemployment Benefit under section 46 (3) (a) (ii), he shall register himself with the Permanent Secretary within 14 days of the date on which he is informed that the Permanent Secretary has entered proceedings on his behalf before the Court.

(3B)Within 14 days of a registration under subsection (3A), the Permanent Secretary shall notify the Permanent Secretary of the Ministry responsible for the subject of social security of the registration in the form specified in the Sixth Schedule.

(4)Where the Permanent Secretary of the Ministry responsible for the subject of social security is notified under subsections (3) and (3B), he shall pay the Transition Unemployment Benefit to the worker.

(5)The Permanent Secretary may, on reasonable cause shown to his satisfaction, extend the time limit referred to in subsections (2) and (3A).

[S. 43 amended by s. 12 (h) of Act 14 of 2009 w.e.f. 1 July 2009; s. 22 of Act 6 of 2013 w.e.f. 11 June 2013.]

44. Transition Unemployment Benefit

(1)Subject to subsection (4), every worker who is registered in the Workfare Programme shall be entitled to a Transition Unemployment Benefit for a minimum period of one month accruing as from the beginning of the month in which his employment is terminated and for a period not exceeding 12 months at the rates specified in the Seventh Schedule.

(1A)Where a worker is admitted to a training or re-skilling scheme, he shall, at the time of his admission, opt—

(a)to continue to draw his Transition Unemployment Benefit until he becomes entitled to the minimum benefit specified in the Seventh Schedule; or

(b)to cease to draw his Transition Unemployment Benefit and be paid the training or re-skilling stipend by the institution referred to in section 43 (2) (b) (i).

(2)The Transition Unemployment Benefit shall be financed as specified in the Eighth Schedule.

(3)The total contribution payable under section 17 of the National Pensions Act shall be paid from the Workfare Programme Fund under section 45 (3) in respect of a worker for the period during which he is a beneficiary of the Transition Unemployment Benefit, or the training or re-skilling stipend paid under subsection (1A) (b) on the basis of the same basic wage or salary of the worker on which the contribution was payable before the termination of his employment.

(4)The Transition Unemployment Benefit shall cease at the end of the month in which the worker—

(a)opts out of the Workfare Programme;

(b)becomes gainfully employed on a full-time basis for a period of at least 30 consecutive working days;

(c)refuses an offer for job placement for a second time;

(d)where he has opted for training or re-skilling—

(i)becomes entitled to the minimum benefit specified in the Seventh Schedule or the stipend referred to in subsection (1A) (b);

(ii)refuses an offer for a training or re-skilling scheme for a second time;

(iii)drops out from the training or re-skilling scheme to which he was admitted;

(e)sets up a small business with the assistance of an institution prescribed under section 43 (2) (b) (ii); or

(f)reaches the retirement age.

(5)Subject to section 43 (2) (a), where a worker becomes gainfully employed, he shall notify the Permanent Secretary within 7 days of the day on which he became gainfully employed.

(6)The Employment Service shall notify the Permanent Secretary within 7 days from the time the worker has been placed in a job or refuses an offer for job placement for a second time.

(7)The institutions referred to in section 43 (2) (b) (i) shall notify the Permanent Secretary within 7 days from the date of the worker—

(a)is admitted to a training or re-skilling scheme and whether he has opted for the Transition Unemployment Benefit under section 44 (1A) (a) or the stipend under section 44 (1A) (b);

(b)refuses an offer for a training or re-skilling scheme for a second time; or

(c)drops out from the training or re-skilling scheme to which he was admitted.

(8)The institutions referred to in section 43 (2) (b) (ii) shall notify the Permanent Secretary within 7 days from the date the worker has set up a small business.

(9)Where a worker has made an option under subsection (1A) or ceases to be entitled to the Transition Unemployment Benefit under subsection (4), the Permanent Secretary shall, not later than the next working day following the receipt of notification under subsection (5), (6), (7) or (8), notify on an approved form the Permanent Secretary of the Ministry responsible for the subject of social security.

[S. 44 amended by s. 12 (i) of Act 14 of 2009 w.e.f. 1 July 2009; s. 23 of Act 6 of 2013 w.e.f. 11 June 2013; s. 13 (e) of Act 27 of 2013 w.e.f. 21 December 2013.]

45. Establishment of Workfare Programme Fund

(1)There is established for the purpose of this Act a Workfare Programme Fund which shall be managed by the National Savings Fund.

(2)There shall be paid into the Workfare Programme Fund—

(a)money collected by way of levy at the rates specified in the Second Schedule to the Human Resource Development Act;

(b)all monies appropriated by the National Assembly for the purposes of the Workfare Programme; and

(c)interests on investments.

(3)There shall be paid out of the Workfare Programme Fund—

(a)the Transition Unemployment Benefit payable at the rate specified in the Seventh Schedule;

(aa)all expenses incurred for any training, re-skilling or multi skilling of laid off workers which is organised by the Permanent Secretary;

(b)the total contributions of workers payable under the National Pensions Act as referred to in section 44 (3); and

(c)all expenses incurred in the administration of the Workfare Programme Fund.

[S. 45 amended by s. 24 of Act 6 of 2013 w.e.f. 11 June 2013.]

Part X – Compensation

46. Payment of severance allowance

(1)Subject to subsection (1A), an employer shall pay severance allowance to a worker as specified in subsection (5) where the worker has been in continuous employment with the employer—

(a)for a period of not less than 12 months on a contract of indeterminate duration and that employer terminates his agreement; or

(b)for a period of more than 24 months under one or more determinate agreements in respect of a position of a permanent nature and that employer terminates the agreement of the worker other than a migrant worker.

(1A)Unless otherwise agreed by the parties, no severance allowance shall be payable where—

(a)a worker and an employer enter into an agreement under section 5 (3A) and the agreement comes to an end;

(b)a worker and an employer enter into one or more determinate agreements for a total period of less than 24 continuous months in respect of a position of a permanent nature and the agreement comes to an end; or

(c)a worker, whose basic wage or salary is at a rate in excess of 360,000 rupees per annum, and an employer enter into a determinate agreement and that agreement comes to an end.

(2)

(a)Subject to section 42 (3) or 43 (1), where a worker claims severance allowance under subsection (1), he shall register himself with the Permanent Secretary within 14 days of the termination of his employment or the expiry of his contract, as the case may be, and the Permanent Secretary shall enquire into the matter with a view to promoting a settlement.

(b)The Permanent Secretary may, on reasonable cause shown, extend the time limit referred to in paragraph (a).

(3)Where the matter under subsection (2) does not result in being satisfactorily settled, the Permanent Secretary—

(a)may enter proceedings before the Court if he is of the opinion that the worker as defined in section 40 has a bona fide case and thereupon—

(i)if that worker is still unemployed, he shall be entitled to be admitted to the Workfare Programme; or

(ii)if that worker becomes gainfully employed, he shall be entitled to be paid an allowance equivalent to the Transition Unemployment Benefit, as specified in section 44, from the date of the termination of his employment up to the date he has taken up employment.

(b)may not enter proceedings before Court if he is of the opinion that the worker does not have a bona fide case and advise the worker as defined in section 40 that he may apply for registration in the Workfare Programme, unless the worker institutes proceedings on his own to claim severance allowance.

(3A)Where a worker is entitled to be admitted to the Workfare Programme under subsection (3) (a) (i) or to be paid an allowance under subsection (3) (a) (ii), he shall register himself with the Permanent Secretary within 14 days of the date on which he is notified by the Permanent Secretary that Court proceedings have been entered on his behalf.

(3B)Where a worker, who claims severance allowance under subsection (1), registers himself with the Permanent Secretary after 14 days of the termination of his employment, the Permanent Secretary may enter proceedings before the Court if he is of the opinion that the worker has a bona fide case, but the worker shall not be entitled to be admitted to the Workfare Programme.

(4)Where there has been a settlement under subsection (2), other than a settlement by reinstatement or by payment of any compensation, the worker as defined in section 40 shall be entitled to be admitted to the Workfare Programme.

(5)Where a worker has been in continuous employment for a period of not less than 12 months with an employer, the Court may, where it finds that—

(a)the termination of agreement of the worker was due to the reasons specified under section 36 (3) and (4);

(b)the termination of agreement of the worker was in contravention of section 38 (2), (3), and (4);

(c)the reasons related to the worker’s alleged misconduct or poor performance under section 38 (2) and (3) do not constitute valid reasons for the termination of employment of the worker;

(d)the grounds for the termination of agreement of a worker for economic, technological, structural or similar nature affecting the enterprise, do not constitute valid reasons;

(e)notwithstanding paragraphs (a), (b), (c) and (d), the termination of agreement of the worker was unjustified,

order that the worker be paid severance allowance as follows—

(i)for every period of 12 months of continuous employment, a sum equivalent to 3 months’ remuneration; and

(ii)for any additional period of less than 12 months, a sum equal to one twelfth of the sum calculated under subparagraph (i) multiplied by the number of months during which the worker has been in continuous employment of the employer.

(5A)Where a matter has been referred to the Tribunal under section 39B, the Court shall have no jurisdiction to hear the matter.

(5B)Notwithstanding subsection (5), where the Court finds that the termination of employment of a worker, who has been in continuous employment for a period of not less than 12 months with an employer, is effected on grounds specified in sections 38 (1) (a) and (d), the Court may, with the consent of the worker, order that that worker—

(a)be reinstated in his former employment with payment of remuneration from the date of the termination of his employment to the date of his reinstatement; or

(b)be paid severance allowance in accordance with subsection (5).

(6)Where the Permanent Secretary has not entered proceedings on behalf of a worker under subsection (3) (b) and the worker has instituted proceedings before the Court on his own, and the Court has given judgment in favour of the worker in terms of subsection (5), the worker as defined in section 40 shall be eligible to be admitted to the Workfare Programme within 14 days as from the date of judgment.

(7)—

(8)—

(9)Where the employment of a part-time worker, a migrant worker or a non-citizen, who has been in continuous employment with an employer for a period of 12 months or more, has been terminated by the employer for reasons of economic, technological, structural or similar nature affecting the enterprise, the employer shall pay severance allowance to the part-time or migrant worker or the non-citizen—

(a)for every period of 12 months, one quarter of a month’s remuneration;

(b)for any additional period of less than 12 months, a sum equal to one twelfth of the sum calculated under paragraph (a) multiplied by the number of months during which the worker has been in the continuous employment of the employer.

(10)—

(11)The Court may, where it thinks fit and whether or not a claim to that effect has been made, order an employer to pay interest at a rate not exceeding 12 per cent per annum on the amount of severance allowance payable from the date of the termination of the agreement to the date of payment.

(12)For the purposes of this section, a month’s remuneration shall be—

(a)the remuneration drawn by the worker for the last complete month of his employment; or

(b)an amount computed in the manner as is best calculated to give the rate per month at which the worker was remunerated over a period of 12 months before the termination of his agreement inclusive of payment for extra work, productivity bonus, attendance bonus, commission in return for services and any other regular payment,

whichever is the higher.

[S. 46 amended by s. 12 (j) of Act 14 of 2009 w.e.f. 1 July 2009; s. 25 of Act 6 of 2013 w.e.f. 11 June 2013.]

47. Payment of recycling fee

(1)

(a)Subject to subsections (2) and (2A), where—

(i)an employer terminates the agreement of a worker as defined in section 40; or

(ii)the determinate agreement of a worker as defined in section 40 comes to an end,

the employer shall, not later than 30 days from the date of termination of employment or expiry of the determinate agreement, pay to the National Pensions Fund for credit to the National Savings Fund a recycling fee according to the rates specified in the Ninth Schedule in respect of that worker.

(b)An employer shall, at the time of payment of the recycling fee under paragraph (a), submit a return in the form specified in the Tenth Schedule.

(c)The recycling fee payable under paragraph (a) shall be credited into the National Savings Fund Account of the worker under section 5B of the National Savings Fund Act.

(2)No recycling fee shall be payable where—

(a)an employer dies and his worker is employed or offered employment by the personal representative or heir of the deceased employer forthwith after the death;

(b)a worker’s employment by a partnership ceases on the dissolution of the partnership, and he is employed or offered employment by a member of the dissolved partnership or a new partnership forthwith after the dissolution;

(c)a worker’s employment by a body corporate ceases on the dissolution of that body and he is employed or offered employment by some other corporate body in accordance with an enactment or a scheme of reconstruction forthwith after the dissolution; or

(d)a worker’s employment ceases on the disposal by his employer of the goodwill, or of the whole or a substantial part of the business, or of that part of the business in which he is employed and he is employed or offered employment by the person who acquires the goodwill or business or part of the business forthwith after the disposal,

on terms and conditions which are not less favourable than those of the former agreement.

(2A)No recycling fee shall be payable where the employment of a worker is terminated in accordance with section 38 (2) except where the Court finds that the dismissal is unjustified.

(3)Where a worker to whom an offer is made in writing in any of the circumstances specified in subsection (2) accepts the offer, he shall be deemed to enter the employment of the person by whom the offer is made forthwith upon the cessation of his employment with the first employer and the employment of the worker by the first and the second employer shall be deemed to be continuous.

(4)Where a worker is deemed to be in continuous employment in accordance with subsection (3) and that continuous employment is terminated in circumstances in which the recycling fee under subsection (1) or severance allowance under section 46 is payable, the employer in whose service the worker was employed immediately before the termination shall be deemed to be the employer during the whole of the period and shall be liable to pay the recycling fee or severance allowance, as the case may be.

[S. 47 amended by s. 12 (k) of Act 14 of 2009 w.e.f. 1 July 2009; s. 26 of Act 6 of 2013 w.e.f. 11 June 2013.]

48. Deductions from severance allowance

(1)An employer may deduct from the severance allowance payable—

(a)any gratuity granted by the employer;

(b)any contribution made to any fund or scheme by the employer; and

(c)any recycling fee paid under section 47 (1).

(2)In this section, "fund" or "scheme" means any pension or provident fund or scheme set up by the employer for the benefit of a worker.

49. Gratuity on retirement

(1)An employer shall pay a gratuity to a worker who has been in continuous employment with him for a period of 12 months or more where—

(a)the worker, on or after attaining the age of 60, retires voluntarily;

(b)the worker who has been in continuous employment with the same employer for not less than 10 years retires before the age of 60 on grounds of permanent incapacity to perform his work and such incapacity is duly certified by a government medical practitioner; or

(c)the worker, on or after attaining the retirement age, retires at the request of the employer.

(1A)

(a)Where a worker who has attained the age of 60 remains in continuous employment with the same employer up to the retirement age, the worker and the employer may agree on an advance payment of the total gratuity payable at the retirement age, amounting to the gratuity payable at the age of 60 calculated in accordance with subsection (2).

(b)Advance payment of the gratuity, where agreed upon under paragraph (a), shall be effected upon the worker attaining the age of 60.

(1B)Notwithstanding any agreement or any provision to the contrary in any other enactment, an employer shall not require a worker to retire before the retirement age.

(2)The gratuity referred to in subsection (1) shall be paid in a lump sum and shall be calculated—

(a)in the case of a worker, other than a part-time worker, on the basis of—

(i)15 days’ remuneration for every period of 12 months’ continuous employment; and

(ii)a sum equal to one twelfth of the sum referred to in subparagraph (i) multiplied by the number of months during which the worker has remained in the continuous employment of the employer, for every period less than 12 months;

(b)in the case of a part-time worker, on the basis of the following formula—N/H x amount of gratuity payable under subsection (a), where "N" means the number of days of work performed by the part-time worker in a week and "H" means the number of days of work performed by a comparable full-time worker in a week.

(3)An employer may deduct from any gratuity payable under subsection (2) and section 49A—

(a)half the amount of any gratuity due at the retirement age or the age of 60 or at death from any fund or scheme, computed by reference only to the employer’s share of contributions;

(b)5 times the amount of any annual pension granted at the retirement age or the age of 60 or at death from any fund or scheme, computed by reference only to the employer’s share of contributions;

(c)any other gratuity granted at the retirement age or the age of 60 or at death by the employer;

(d)10 times the amount of any other annual pension granted at the retirement age or the age of 60 or at death by the employer.

(4)In this section, "fund or scheme" means any pension or provident fund or scheme set up by the employer for the benefit of the worker.

(5)For the purposes of this section—

(a)a day’s remuneration shall be—

(i)the remuneration drawn by the worker in respect of his last normal working day other than a public holiday; or

(ii)an amount computed in the manner as is best calculated to give the daily rate at which the worker was remunerated over a period of 12 months prior to the termination of his agreement, inclusive of payment for extra work, productivity bonus, attendance bonus, commission in return for services and any other regular payment,

whichever is the higher; and

(b)in order to determine a day’s remuneration—

(i)a month shall be deemed to consist of 26 days;

(ii)a fortnight shall be deemed to consist of 12 days; and

(iii)a week shall be deemed to consist of 6 days.

(6)Where a claim for gratuity on retirement has been made, the Court may, where it thinks fit and whether or not a claim to that effect has been made, order an employer to pay interest at a rate not exceeding 12 per cent per annum on the amount of gratuity payable from the date of retirement to the date of payment.

[S. 49 amended by s. 27 of Act 6 of 2013 w.e.f. 2 February 2009.]

49A. Gratuity at death

(1)Where a worker who has been in continuous employment with the same employer for a period of not less than 12 months dies, that employer shall pay a gratuity—

(a)to the spouse of the deceased worker; or

(b)where there is no surviving spouse, to the dependants of the deceased worker in equal proportion,

irrespective of any benefits the spouse or dependants may be entitled to under the National Pensions Act or any other enactment.

(2)Subject to section 49 (3), (4) and (5), the gratuity referred in subsection (1) shall be calculated in accordance with section 49 (2).

(3)In this section —"dependant", in relation to a deceased worker, means any person who was living in the worker's household and was wholly or partly dependent on the earnings of the worker at the time of that worker’s death;"spouse", in relation to a worker, means the person with whom the worker has contracted a civil or religious marriage and with whom the worker was living under a common roof at the time of that worker’s death.

[S. 49A inserted by s. 28 of Act 6 of 2013 w.e.f. 11 June 2013.]

50. Death grant

(1)Where a worker who has been in continuous employment with the same employer for not less than 12 consecutive months dies, the employer shall pay a death grant as specified in paragraph (c) of the Third Schedule—

(a)to his spouse on production of a written statement by him that he was living with the deceased under a common roof at the time of death; or

(b)if he leaves no spouse, to the person who satisfies the employer that he has borne the funeral expenses.

(2)For the purpose of subsection (1), "spouse" means the person with whom the deceased worker had contracted civil or religious marriage.

51. Certificate of employment

(1)Every employer shall provide a worker, whose employment has been terminated, or who has resigned from his employment with a certificate of employment in the form prescribed in the Eleventh Schedule, within 7 days of the termination of his employment.

(2)No employer shall insert in the certificate issued under subsection (1) any particulars other than those specified in the Eleventh Schedule.

[S. 51 amended by s. 29 of Act 6 of 2013 w.e.f. 11 June 2013.]

52. Termination of appointment under the Constitution

(1)Subject to subsections (2) and (3), where an appointment is terminated under section 92 or 113 of the Constitution, the holder of the office whose appointment is terminated shall—

(a)where he has served for a period of 3 years or more, be eligible for compensation representing 3 months’ salary;

(b)where he has served for a period of less than 3 years, be eligible for compensation representing one month’s salary.

(2)Notwithstanding anything to the contrary in any agreement, no gratuity or severance allowance shall be payable to the holder of any office whose appointment is terminated under section 92 or 113 of the Constitution.

(3)Where the holder of an office to which subsection (1) applies was, immediately before his appointment to that office, the holder of a public office or in employment with a local authority or statutory body—

(a)he shall be entitled to resume his former office; or

(b)where the former office is no longer vacant, he shall be deemed for the purposes of any other enactment to have retired from the office vacated on the ground of abolition of that office.

53. Contractual worker

(1)Notwithstanding any provision to the contrary in any agreement or any enactment, every worker, who is employed on a contract of determinate duration which ends before 31 December of any year and who has performed a number of normal days’ work equivalent to not less than 80 per cent of the number of working days during his employment in that year, shall be entitled to a gratuity equivalent to one twelfth of his earnings for that year.

(2)The gratuity under subsection (1) shall not be payable where a worker qualifies for a gratuity under the End of the Year Gratuity Act.

[S. 53 amended by s. 30 of Act 6 of 2013 w.e.f. 11 June 2013.]

Part XI – Violence at work

54. Violence at work

(1)No person shall—

(a)harass, sexually or otherwise;

(b)assault;

(c)verbally abuse, swear at or insult;

(d)express the intention to cause harm to;

(e)bully or use threatening behaviour towards;

(f)use aggressive gesture indicating intimidation, contempt or disdain towards;

(g)by words or act, hinder,

a worker, in the course of or as a result of his work.

(2)Any person who contravenes subsection (1) shall commit an offence and shall, on conviction, be liable to a fine not exceeding 75,000 rupees and to imprisonment for a term not exceeding 2 years.

(3)For the purpose of subsection (1), a person sexually harasses another person where, in circumstances in which a reasonable person would have foreseen that other person would be humiliated, offended or intimidated, he—

(a)makes an unwelcome sexual advance, or an unwelcome request for a sexual favour, to that other person; or

(b)engages in any other unwelcome conduct of a sexual nature towards that other person.

[S. 54 amended by s. 31 of Act 6 of 2013 w.e.f. 11 June 2013.]

Part XII – Job contractors

55. ***

[S. 55 amended by s. 12 (l) of Act 14 of 2009 w.e.f. 1 July 2009; repealed by s. 31A of Act 6 of 2013 w.e.f. 11 June 2013.]

56. Joint liability of employer and job contractor

(1)Subject to subsection (2), a job contractor and the principal, for whom the job contractor has recruited or employed a worker, shall be jointly and severally liable for the payment of the remuneration of any worker.

(2)The liability of the principal of a job contractor under subsection (1) shall be limited to the sum payable by him to the job contractor under the arrangement between them.

(3)No person who is jointly liable with a job contractor under subsection (1) may set up as a defence to a claim from a worker seeking to recover remuneration the fact that he has already paid to the job contractor any sum due under the arrangement with the job contractor.

57. Remuneration to be privileged debt

(1)Subject to subsection (2), every worker employed by a job contractor shall, for securing payment of his remuneration, have the same privileges, in respect of the property of the principal, as he would have had if he had been directly employed by the principal without the intervention of the job contractor.

(2)Any amount recoverable under subsection (1) shall not exceed the amount payable by the principal to the job contractor under section 56 (2).

Part XIII – Records and administration

58. Register of employers

(1)Every employer who has 10 or more workers shall apply to the Permanent Secretary for registration under this Act.

(2)Every application made under subsection (1) shall be made in the prescribed form.

(3)The Permanent Secretary shall maintain a register of employers.

59. Keeping of records

(1)Every employer referred to in section 58 shall keep a register of workers, a record of remuneration paid, an inspection report book, and such other records as may be prescribed, and shall retain these records for a period of 3 years.

(2)There shall be sufficient compliance if an employer keeps the information specified in subsection (1) in an electronic form.

(3)Every employer shall—

(a)enter, in the register of workers, the name, the date of birth and the date of employment of every worker and the nature and conditions of the work he performs;

(b)enter, in the record of remuneration paid, the days or periods during which a worker has worked and the remuneration and other benefits paid to the worker.

(4)Every employer shall, on request—

(a)produce to an officer any records kept under subsections (1) and (3);

(b)sign any entry made in the inspection report book by an officer;

(c)submit to the Permanent Secretary such particulars as may be required.

60. Labour inspection

The Ministry shall be responsible for maintaining a labour inspection service which shall—

(a)administer and ensure the enforcement of this Act and any other enactment relating to labour or employment;

(b)bring to the notice of the Minister defects or abuses not specifically covered by this Act or any other enactment relating to labour or employment.

61. Power to make enquiries

(1)The Permanent Secretary may—

(a)enter without previous notice, at any hour of the day or night, any place of work, other than premises used solely for residential purposes except with the permission of the occupier thereof;

(b)enter by day and without previous notice any premises which he has reasonable cause to believe to be a place of work other than premises used solely for residential purposes except with the permission of the occupier thereof;

(c)carry out any examination or enquiry which he may consider necessary in order to satisfy himself that this Act or any other enactment relating to labour or employment is being strictly observed;

(d)interview alone or in the presence of such other person as he thinks fit, and at such place he deems appropriate, the employer or his representative and any person employed in the enterprise, regarding the application of this Act or any other enactment relating to labour or employment, and any such person shall answer such questions truly to the best of his ability provided that no such person shall be required to give any information tending to incriminate himself;

(e)require the production of any books, records or other documents, whether prescribed by law or kept by the employer, relating to terms and conditions of employment, in order to ascertain whether this Act or any other enactment relating to labour or employment is being complied with, and copy such documents or make extracts therefrom;

(f)enforce the posting of such notices as may be required by this Act or any other enactment relating to labour or employment;

(g)require an employer to submit in writing any information relating to remuneration, and terms and conditions of employment, of a worker, as well as the worker’s name, address, date of birth, date of commencing employment and category;

(h)require an employer or his representative to furnish the facilities and assistance required for entry, inspection, examination or enquiry in the exercise of any of the powers conferred under this Act or any other enactment relating to labour or employment.

(2)The Permanent Secretary shall, on the occasion of an inspection visit, notify the employer or the employer’s representative of his presence, unless neither of them is present or easily accessible at that time, or he considers that such notification may be prejudicial to the performance of his duties.

(3)The Permanent Secretary may request the assistance of a police officer if he has reasonable cause to apprehend any serious obstruction in the execution of his duties.

(4)No person shall—

(a)wilfully impede or delay the Permanent Secretary in the exercise of any power under this Act or any other enactment relating to labour or employment;

(b)fail to comply with a requirement or request or to answer a question of the Permanent Secretary under subsection (1);

(c)conceal or prevent any person from appearing before or being examined by the Permanent Secretary or any officer delegated by him, or attempt to do so.

62. Power to summon

(1)Where the Permanent Secretary—

(a)has reason to believe that an offence relating to the observance of this Act or any other enactment relating to labour or employment has been committed by an employer; or

(b)wishes to enquire into a matter concerning a dispute between an employer and his workers or their representatives,

he may, by written notice, summon any person, whom he believes can provide information relating to the offence or the enquiry, to attend and produce any document which he may require.

(2)Any person summoned under subsection (1) who—

(a)having been served with the written notice, fails to comply with its requirements;

(b)refuses to answer faithfully any question put to him by the Permanent Secretary;

(c)gives any false or misleading information;

(d)refuses to produce a document required by the Permanent Secretary,

shall commit an offence.

(3)

(a)The written notice specified in subsection (1) shall be issued to the person concerned by causing it to be—

(i)handed over to him in person; or

(ii)left at, or sent by registered post to his registered office or, his usual or last known place of business or residence.

(b)Any person to whom a written notice is issued in accordance with paragraph (a) who—

(i)refuses to accept delivery of the written notice; or

(ii)fails to take delivery of the written notice after being informed that it awaits him at a post office,

shall be deemed to have been duly served with the written notice on the day on which he refuses to accept delivery thereof or he is informed that it awaits him at a post office.

[S. 62 amended by s. 32 of Act 6 of 2013 w.e.f. 11 June 2013.]

63. Complaint procedure

(1)Any worker may make a complaint to the Permanent Secretary against his employer or any agent of the employer, in respect of any matter arising out of his employment.

(2)No employer or agent of an employer shall prevent a worker from making a complaint to the Permanent Secretary under subsection (1).

(3)Where a complaint has been received by the Permanent Secretary and he is satisfied that any provision of this Act or any other enactment relating to the employment of the complainant has not been complied with, he may issue a notice enforcing compliance.

(4)Any employer issued with a notice under subsection (3) may, within 7 days of the receipt of the notice, challenge such notice before the Court, which may after hearing the parties, revoke or affirm the notice.

(5)Where an employer does not challenge a notice, or where he challenges the notice and the Court affirms the notice, the employer shall comply with the requirements thereof within 14 days of the date of receipt of the notice or the date of the decision of the Court, as the case may be.

Part XIV – Labour Advisory Council

64. Establishment of Council

(1)There is established, for the purposes of this Act, a Labour Advisory Council.

(2)The Council shall consist of an equal number of public officers, representatives of employers and representatives of workers.

(3)The members of the Council shall be appointed by the Minister for such period and on such terms and conditions as he may determine.

(4)The Chairperson of the Council shall be appointed by the Minister from among the public officers.

(5)The Council may co-opt non-voting members as and when required.

(6)The appointment of every member of the Council shall be published in the Gazette.

(7)The Council shall regulate its proceedings in such manner as it thinks fit.

65. Functions of Council

(1)The Council shall, on the request of the Minister or upon its own initiative, advise the Minister on, any matter relating to labour and employment, including—

(a)the review of the operation and enforcement of this Act and any other enactment relating to employment rights;

(b)Government replies to questionnaires concerning items on the agenda of the International Labour Conference and Government comments on proposed texts to be discussed by the Conference;

(c)proposals to be made in connection with the submission of International Labour Organisation Conventions and Recommendations to the National Assembly;

(d)the re-examination of unratified International Labour Organisation Conventions and of Recommendations to which effect has not yet been given, and consideration of measures to be taken to promote their implementation or ratification;

(e)questions arising out of reports to be made to the International Labour Organisation on ratified Conventions;

(f)proposals for the denunciation of ratified International Labour Organisation Conventions.

(2)The Council shall exercise such other duties and powers in such manner and subject to such conditions as the Minister may, by regulations, direct.

66. Meetings of Council

The Council shall meet at the request of the Chairperson at such time and place as he may determine.

Part XV – Miscellaneous

66A. Protection from liability

No liability, civil or criminal, shall lie against an officer in respect of any act done or omitted to be done in good faith in the execution of his functions under this Act.[S. 66A inserted by s. 33 of Act 6 of 2013 w.e.f. 11 June 2013.]

67. Offences

(1)Any person who—

(a)fails to credit a worker with the full amount of remuneration for work done;

(b)makes, or knowingly allows to be made, any entry in a record required to be kept by an employer which he knows to be false or misleading in a material particular;

(c)for the purposes of this Act, produces, furnishes or knowingly allows to be produced or furnished any register, report, book, remuneration sheet, record, list, documents or information which he knows to be false or misleading in a material particular;

(d)prevents a worker from appearing before the Permanent Secretary or the Labour Advisory Council;

(e)contravenes—

(i)a condition of any authority issued, or approval given, under this Act;

(ii)any order or direction given under this Act;

(iii)this Act or any regulations made under this Act; or

(iv)any order made by the Court,

shall commit an offence.

(2)Any person who commits an offence shall, on conviction, be liable to a fine not exceeding 25,000 rupees and to imprisonment for a term not exceeding 2 years.

(3)The Court may, on the conviction of any person under this Act, where it thinks appropriate, make an order directing that person to comply with this Act or any order may by that Court within such time as may be fixed in the order.

(4)A person who fails to comply with an order made under subsection (3) shall commit an offence and shall, on conviction, be liable to a fine not exceeding 10,000 rupees.

[S. 67 amended by s. 12 (m) of Act 14 of 2009 w.e.f. 1 July 2009; s. 34 of Act 6 of 2013 w.e.f. 11 June 2013; s. 13 (f) of Act 27 of 2013 w.e.f. 21 December 2013.]

68. Regulations

(1)The Minister may make such regulations as he thinks fit for the purposes of this Act.

(2)Any regulations made under subsection (1) may provide for—

(a)the levying of fees and charges; and

(b)the amendment of the Schedules.

[S. 68 amended by s. 3 of Act 1 of 2009 w.e.f. 16 April 2009.]

69. ***

70. ***

71. ***

72. ***

First Schedule (Section 2)

The retirement age of a person in respect of his date of birth shown in Column 1 shall be the corresponding age specified in Column 2

Column 1		Column 2
Month and year of birth		Retirement age	Month and year of retirement date
Month	Year	Retirement age	Month	Year
August	1948	60 years + 1 month	September	2008
September	1948	60 years + 2 months	November	2008
October	1948	60 years + 3 months	January	2009
November	1948	60 years + 4 months	March	2009
December	1948	60 years + 5 months	May	2009
January	1949	60 years + 6 months	July	2009
February	1949	60 years + 7 months	September	2009
March	1949	60 years + 8 months	November	2009
April	1949	60 years + 9 months	January	2010
May	1949	60 years + 10 months	March	2010
June	1949	60 years + 11 months	May	2010
July	1949	61 years	July	2010
August	1949	61 years + 1 month	September	2010
September	1949	61 years + 2 months	November	2010
October	1949	61 years + 3 months	January	2011
November	1949	61 years + 4 months	March	2011
December	1949	61 years + 5 months	May	2011
January	1950	61 years + 6 months	July	2011
February	1950	61 years + 7 months	September	2011
March	1950	61 years + 8 months	November	2011
April	1950	61 years + 9 months	January	2012
May	1950	61 years + 10 months	March	2012
June	1950	61 years + 11 months	May	2012
July	1950	62 years	July	2012
August	1950	62 years + 1 month	September	2012
September	1950	62 years + 2 months	November	2012
October	1950	62 years + 3 months	January	2013
November	1950	62 years + 4 months	March	2013
December	1950	62 years + 5 months	May	2013
January	1951	62 years + 6 months	July	2013
February	1951	62 years + 7 months	September	2013
March	1951	62 years + 8 months	November	2013
April	1951	62 years + 9 months	January	2014
May	1951	62 years + 10 months	March	2014
June	1951	62 years + 11 months	May	2014
July	1951	63 years	July	2014
August	1951	63 years + 1 month	September	2014
September	1951	63 years + 2 months	November	2014
October	1951	63 years + 3 months	January	2015
December	1951	63 years + 4 months	March	2015
December	1951	63 years + 5 months	May	2015
January	1952	63 years + 6 months	July	2015
February	1952	63 years + 7 months	September	2015
March	1952	63 years + 8 months	November	2015
April	1952	63 years + 9 months	January	2016
May	1952	63 years + 10 months	March	2016
June	1952	63 years + 11 months	May	2016
July	1952	64 years	July	2016
August	1952	64 years + 1 month	September	2016
September	1952	64 years + 2 months	November	2016
October	1952	64 years + 3 months	January	2017
November	1952	64 years + 4 months	March	2017
December	1952	64 years + 5 months	May	2017
January	1953	64 years + 6 months	July	2017
February	1953	64 years + 7 months	September	2017
March	1953	64 years + 8 months	November	2017
April	1953	64 years + 9 months	January	2018
May	1953	64 years + 10 months	March	2018
June	1953	64 years + 11 months	May	2018
July	1953	65 years	July	2018
August 1953 and after		On reaching 65 years

Second Schedule (Section 8)

Particulars of work agreement/contrat du travail/kontra travay

1.Name of employer/nom de l’employeur/nom lanplwayer—_______________________________________________________

2.National Pensions Registration Number/numéro d’enregistrement de la pension nationale/nimero anrezistreman pansion nasional—__________________________________________________________

3.Business Registration Number/National Identity Card Number of employer/numéro d’enregistrement de l’entreprise/numéro de Carte d’Identité Nationale de l’employeur/nimero anrezistreman lantrepriz/nimero kart idantite nasional lanplwayer—_______________________________________________________

4.Address of employer/adresse de l’employeur/l'adres lanplwayer—_________________________________________________________

5.Nature of activity/nature de l’activite/natir laktivite—_______________________________________________________

6.Name of worker/nom du travailleur/nom travayer—_______________________________________________________

7.Sex of worker/sexe du travailleur/sex travayer—_______________________________________________________

8.National Identity Card Number/Passport No. (non-citizens)/numéro de la carte d’identité nationale/numéro du passeport (étrangers)/nimero kart idantite nasional/nimero paspor (etranzer)— _______________________________________________________

9.Date of birth of worker/date de naissance du travailleur/dat nesans travayer—_______________________________________________________

10.Address of worker (specify district) adresse du travailleur (spécifiez le district)/ladres travayer (presiz ki distrik)—____________________________________________________

11.Date of commencement of agreementdate du début du contrat/dat komansman kontra—_______________________________________________________

12.Place of work/lieu du travail/plas travay—_______________________________________________________

13.Grade, class or category of employment/qualité, classe ou catégorie d'emploi/kalite, klas ou kategori travay—______________________________________________________

14.Rate and particulars of remuneration/taux et détails de rémunération/tarif ek detay saler—______________________________________________________

15.Interval at which remuneration is to be paid/intervalle auquel rémunération doit être versée/period pou lapey—______________________________________________________

16.Normal hours of work/heures normales de travail/ler travay— ______________________________________________________Date/date/dat______________________________________________________Signature of employer/signature de l’employeur/signatir lanplwayer______________________________________________________

[Second Sch. repealed and replaced by GN 159 of 2013 w.e.f. 11 June 2013.]

Third Schedule (Section 19(1))

[Third Sch. amended by s. 35 of Act 6 of 2013 w.e.f. 11 June 2013.]

(a)	Payment of meal allowance[Section 19 (1)]	Rs 70.00 per day
(b)	Payment of maternity allowance[Section 30 (1A)]	Rs 3,000
(c)	Payment of death grant[Section 50]	Rs 3,500

[Third Sch. amended by s. 35 of Act 6 of 2013 w.e.f. 11 June 2013.]

Fourth Schedule (Section 21 (3) (a))

Payslip

Pay Period ________________________

1.Name of employer ________________________________

2.NPF Reg. No. of employer ____________________________

3.Name of worker ________________________________

4.National Identity Card Number of worker ________________________

5.Date of entry ________________________________

6.Category _______________________________________

7.Basic rate of pay __________________________________

8.Total number of days present at work ________________________

9.No. of day(s) of leave taken (to specify) __________________

10.Number of hours of extra work performed and the corresponding extra payment

(i)1.5 × ______________________

(ii)2 × ________________________

11.Allowance(s) paid (please specify) ______________________

12.Piece rate earnings ______________________________

13.Total remuneration __________________________________

14.Deduction(s) made and the reasons therefor ______________________

15.Net pay __________________________________

Fifth Schedule (Section 43 (3))

1.Particulars of employer

(a)Name ________________________________________

(b)Phone number ________________________________________

(c)National Pensions registration number ________________________________________

(d)Address ________________________________________

2.Particulars of worker

(a)National Identity Card Number _________________________

(b)Name __________________________________

(c)Phone number ________________________________

(d)Address ________________________________________

(e)Occupation ________________________________________

(f)Basic wage ___________________ /month/fortnight/week (delete whichever not applicable)

(g)Activity opted under section 43 (2) ________________________________________

3.Details of employment

(a)Date joined service ________________________________________

(b)Date of termination of employment ________________________

(c)Reason for termination of employment ________________________

(d)Amount payable as recycling fee ____________________________

I certify that the above-named worker is registered in the Workfare Programme and is entitled to the Transition Unemployment Benefit.________________________________________Date________________________________________Permanent Secretary, Ministry of Labour, Industrial Relations and Employment[Fifth Sch. amended by s. 12 (n) of Act 14 of 2009 w.e.f. 1 July 2009.]

Sixth Schedule (Section 43(3B))

Notification of registration under section 43(3b) of the Employment Rights Act

1.Particulars of employer

(a)Name ________________________________________

(b)Phone number ______________________________________

(c)National Pensions Registration Number ____________________________

(d)Address ____________________________________

2.Particulars of worker

(a)Name ________________________________________

(b)National Identity Card Number ______________________________

(c)Phone number ________________________________

(d)Address ____________________________________

(e)Occupation ________________________________

(f)Basic wage ________________ /month/fortnight/week (delete whichever not applicable)

(g)Date worker became gainfully employed ________________________________

3.Details of employment

(a)Date joined service ______________________________

(b)Date of termination of employment ______________________________

(c)Reason for termination of employment ____________________________

(d)Amount payable as recycling fee ____________________________

I certify that the above-named worker is registered in the Workfare Programme and is entitled to the Transition Unemployment Benefit for period __________________ to __________________Date __________________________________________Permanent SecretaryMinistry of Labour, Industrial Relations and Employment[Sixth Sch. inserted by s. 37 of Act 6 of 2013 w.e.f. 11 June 2013.]

Seventh Schedule (Sections 44 (1) and 45 (3) (a))

Transition unemployment benefit

Period after termination of employment	Rate of benefit per month
First 3 months	90 per cent of basic wage or salary but not less than Rs 3,000
From 4th month to end of 6th month	60 per cent of basic wage or salary but not less than Rs 3,000
From 7th month to end of 12th month	30 per cent of basic wage or salary but not less than Rs 3,000

[Seventh Sch. amended by s. 12 (o) of Act 14 of 2009 w.e.f. 1 July 2009.]

Eighth Schedule (Section 44(2))

Financing of transition unemployment benefit

1.Subject to paragraph 2, the Transition Unemployment Benefit shall be financed from—

(a)the one per cent contribution of the worker and of the recycling fee in the National Savings Fund account of the worker and any interest accrued thereon, to the extent of 50 per cent of the Transition Unemployment Benefit; and

(b)the Workfare Programme Fund to the extent of 50 per cent of the Transition Unemployment Benefit.

2.Where a worker is admitted to a training or re-skilling scheme and opts for the payment of the Transition Unemployment Benefit, the benefit shall be financed from the total of—

(a)one-third of the one per cent contribution of the worker and of the recycling fee in the National Savings Fund account of the worker and any interest accrued thereon;

(b)one-third from the Workfare Programme Fund; and

(c)one-third from the National Empowerment Foundation

3.Where the total amount under paragraph 1 (a) or 2 (a) is not sufficient, any deficiency shall be met from the Workfare Programme Fund.

[Eighth Sch. repealed and replaced by s. 12 (p) of Act 14 of 2009 w.e.f. 1 July 2009.]

Ninth Schedule (Section 47(1)(a))

Payment of recycling fee

Between 12 months and up to 120 months of continuous employment	6 days’ basic wage or salary for every 12 months of continuous employment
Above 120 months up to 240 months of continuous employment	10 days’ basic wage or salary for every 12 months of continuous employment
More than 240 months of continuous employment	15 days’ basic wage or salary for every 12 months of continuous employment

[Ninth Sch. repealed and replaced by s. 36 of Act 6 of 2013 w.e.f. 11 June 2013.]

Tenth Schedule (Section 47(1)(b))

Return of recycling fee

(to be submitted with payment)

Name of employer: ____________________________________Tax Account Number: __________________________________National Pensions registration number: ________________________Address of employer: __________________________________Total amount of Recycling Fee: __________________________I certify that to the best of my knowledge the information in this return is correctSignature and name of employer ____________________Status ____________________Date ____________________

Details of Worker
	ID No.	Name	Other names	Salary (Rs)	Interval of payment	Date of entry	Date of termination of employment	Amount of recycling fee
1
2
3
4
5
Total

Eleventh Schedule (Section 51)

Certificate of employment

This is to certify that ⁽¹⁾ ________________________ of ⁽²⁾ ____________________ was employed as ⁽³⁾ ________________________ with ⁽⁴⁾ ________________________ from ⁽⁵⁾ ______________________ to ________________________ ⁽⁶⁾ ________________________________⁽¹⁾Name of worker in block letters⁽²⁾Address of worker⁽³⁾Position held by worker⁽⁴⁾Name of employer⁽⁵⁾Date of commencement of agreement⁽⁶⁾Date of termination of agreementDate ______________________Signature of employer ______________

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History of this document

30 June 2017 this version

Consolidation

02 February 2009

Commenced