Last Friday (15 May 2020), the National Assembly passed the COVID-19 (Miscellaneous Provisions) Bill that purports to provide, according to the Attorney-General, a “reformed and modern appropriate legislative framework in the wake of communicable diseases”. In doing so, it amends 56 existing laws. The next day, the bill received presidential assent and became the COVID-19 (Miscellaneous Provisions) Act (the Act).
The amendments affect wide-ranging aspects of the country’s functioning – ranging from the financial sector and the organisation of the justice system to sports. The main focus of this article is on the Workers’ Rights Act (WRA), one of 56 amended legislation, and the implications of the amendments on workers’ rights.
Plainly, the amendments constitute an unmistakable attack on labour rights. Enacting unfair working conditions as a principle defeats the raison d’être of this branch of law – the protection of workers against abuses of employers. As it will be shown, the various labour law amendments unjustifiably strip away workers’ individual and collective labour rights.
Firstly, the modifications debilitate lower-income workers’ right to adequate compensation, thereby exacerbating their unequal position in relation to their employer. Secondly, they target the collective rights of those working in sectors that were cynically deemed essential to the functioning of the country during the pandemic.
An assault on lower-income workers’ rights
The WRA is an act that strictly concerns workers earning less than Rs 50,000 a month. This income bracket encompasses more than a third of the country’s workforce, and necessarily includes all blue-collar workers and more generally, all other low-income workers. Insofar as it guarantees fundamental labour rights, the WRA is an important legal tool that equips low-income workers with various protections, such as the right to receive union representation, the right to be fairly remunerated, the right to a minimum wage, a defence against exploitative working conditions and arbitrary termination of employment. It is a legal footing all workers, more so for precarious workers who may not even have a written contract.
To this end, the government acted promptly upon announcing the lockdown to secure the jobs and income of workers earning less than Rs 50,000/month. The aid scheme (now retroactively enacted in the Act as the Wage Assistance Scheme) was designed to ensure that lower-income workers did not face the brunt of a public health crisis which required the closure of all non-essential sectors. It guaranteed that they were not rendered unemployed and had access to disposable income to sustain themselves during the pandemic. Employers who received financial assistance were prohibited from terminating their workers’ contract; any termination under such conditions would necessarily be unjustified.
Against this backdrop, the projected amendments to the WRA are incongruous, to say the least.
Reduced compensation for night shifts
Firstly, all workers who perform night shifts – i.e. at least 5 consecutive hours of work between 6 PM and 6 AM – are no longer entitled to compensation at the rate of 15% of their basic daily wage.
Night shifts require compensation beyond general remuneration because of the difficult working conditions they entail. Such shifts expose workers to increased health and safety risks, not in the least due to fatigue, and require them to forgo family and social time. Given the purpose of the compensation for night shifts, its elimination appears totally unjustified, as the nature of the work is not any less hazardous in times of a pandemic.
It would have been one thing if the government had proposed that all night shifts, irrespective of income, would go uncompensated to address the nation’s needs amidst a pandemic (although the link between the two remains tenuous). However, it is classist to legislate that lower-paid jobs do not require compensation when conducted at night. Enshrining such a position in law puts workers in an even weaker position towards their employer.
Reduced compensation for overtime on Sundays and public holidays
This classist logic is also evident in the provisions only apply to workers employed in the construction, manufacturing, block-making and stone-crushing sectors. For them, working overtime on Sundays and public holidays will see their remunerative compensation reduced from 3 to 2 times the normal rate. In addition, employers are granted an express right to choose between overtime pay or impose that the worker takes time-off in lieu of remuneration.
The purpose of overtime pay is central to the proper regulation of employment relations and has historically been at the heart of the class struggle. The length of the workday affects how much time workers have to themselves, and how much they must give to their employers. The International Workers’ Day celebrated on 1 May commemorates workers who were killed at Haymarket in 1886 while striking to obtain eight-hour workdays.
Establishing an increased hourly rate for overtime work is a bulwark against exploitative working conditions. While some employers may still resort to extra-contractual hours, they would need to provide adequate compensation to workers in return. It is ironic that weeks after celebrating May Day, Mauritian workers now face longer working hours without adequate enhanced pay.
It remains perplexing why low-paid workers are entitled to a lower hourly rate compensation for overtime compared to other workers. The fact that these provisions specifically target the industries employing a high proportion of manual labourers, the majority of whom are on minimum wage, does not go amiss. If it was unclear whether our elected representatives value low-paid workers’ time, their position is now unequivocal.
Both these amendments are applicable for the entire COVID-19 period. Under the Act, this period retroactively commences on the 23 March 2020 and expires 30 days after the Prime Minister prescribes the end date. This means that these unjustifiable derogations apply as a rule, immediately and for a duration that only the Prime Minister can decide.
Employer’s right to withhold workers’ annual leave
Much has been written in condemnation of the newly created right of employers to withhold between up to 7.5 and 14 days of annual leaves from the entitlements of, respectively, essential workers and non- essential workers.
The reduction of paid leave days is not only drastic, but it is also uncertain for how many years this exceptional rule may be applicable. Indeed, contrary to the previous amendments, this one continues to apply after the expiry of the COVID-19 period (which is anyway unknown) for another 18 months!
It is unclear if this amendment applies to all salaried workers irrespective of income. As the Act stands, only workers earning under Rs 50,000/month can have their paid leave unilaterally reduced. It implies that an intact annual paid leave is a privilege afforded only to the white-collar class, as opposed to a fundamental right of all salaried persons. Furthermore, if it wasn’t plain before the pandemic, COVID- 19 has established that most essential workers (nurses, cleaners, cashiers, teachers etc.) are lower-paid workers - making an amendment based on differences in income all the more astounding.
Concretely, non-essential workers will only be guaranteed 6 of the 20 days of paid leave they are normally entitled to. Paid annual leave is also at the core of workers’ rights to time off work. It is a question of workers’ dignity. Amongst other things, it allows them time to take care of their families and own well- being. Incremental steps in favour of longer paid leaves were the fruits of a long strenuous struggle by workers, which is why this regression is such an affront to the fundamental right to time off from work.
For essential workers, they are now entitled to 13.5 days of annual leave. The retraction of their right to 20 days of annual paid leave is an act of betrayal on behalf of our representatives. Their work remained uninterrupted during the lockdown and their performance central to the health of the population and survival of the country. Yet, our politicians have responded by repealing their acquired right to paid leave. In a time where we should be advocating for an increase of wages for all essential workers who had to go to work, risking their lives during a pandemic, we are instead witnessing a revocation of the basic right of workers to dispose of their own time.
An assault on essential workers’ unions
The infringement upon lower-paid workers’ right to unionise is all more alarming given that it is set in the context of mass termination of workers’ contracts and is applicable to those sectors that are essential to the functioning of the country at all times.
Mass termination of contracts to reduce the workforce
Indeed, the Act introduces more amendments that apply only to workers earning less than Rs 50,000/month and working in specific sectors: air traffic control, civil aviation and airport, customs, hotel services, electricity, health, hospitals, ports, radio and television, telephone, transport of passengers and goods, and water supply.
The enumerated sectors are indispensable to the functioning of the country. Some are deemed essential to the survival of the country amidst a pandemic (health, hospital, electricity, water supply etc.), others are essential to sustaining the tourism industry (hotel services, all airport-related sectors, transport of people and goods etc), one of the main pillars of the Mauritian economy. The importance of these sectors is also consistent with the interpretation of the Employment Relations Act which categorises them under “services requiring a minimum service”.
Yet, this did not prevent Parliament from further dismantling their rights, specifically workers’ collective right to unionise.
Bypassing negotiations with trade unions
According to the Act, when companies in these sectors envisage, in an effort to reduce costs, mass termination of employment contracts, the Minister can decide (via regulations) to derogate from the entire legal procedures normally applicable.
Whereas before an employer would have to notify and engage in negotiations with trade unions or workers’ representatives to find alternatives to the mass termination of workers’ contracts, now in these sectors, employers will bypass union negotiations and be redirected to the Redundancy Board. As such, these amendments rob the workers of the collective power, embodied by their trade unions, to negotiate fairer terms of termination.
By exempting employers from following normal procedure, workers targeted by downsizing measures outright lose their right to have their interests defended by their trade unions, even though their very livelihood is at risk. Indeed, trade unions represent workers collectively and thus have more leverage than a single worker. Ensuring workers have access to trade unions is a way towards the restoration of the balance of power vis-à-vis the employer.
Justified termination of workers’ contract
If the Redundancy Board finds the employers’ decision to lay off justified, the law grants the employer a new option – between the termination of workers’ contract or have workers on unpaid leave until the resumption of employment is decided.
However, firstly the period during which the worker is on unpaid leave is solely decided by the employer. This means that workers are forced into unemployment, all while having to remain at the disposal of their “employer” until their services are required again – making them truly the reserve army of the capital!
Secondly, while this unpaid leave option is conditional on the workers’ consent, the possibility of free, informed and prior consent is highly dubious given the circumstances. On top of lack of trade union support, when an employer opts for unpaid leave, workers are made to “consent” to either being in unemployment without any guarantee of finding another job or being in unemployment with the prospect of resuming this job...someday. These are hardly proper conditions where workers can meaningfully exercise consent.
Thirdly, when workers consent to unpaid leave, they do not know what they might be consenting to. Under this unpaid leave scheme, workers can be made to resume their job “on such new terms and conditions, including pension benefits, as the employer may, prior to the resumption of work, offer to the worker”.
For workers, agreeing to unemployment is accompanied by the forfeiture of the right – recognised to all contracting persons – to negotiate new terms and conditions of a contract. Instead, they are made to return from unemployment to working under new conditions, unilaterally decided by their employer.
Unjustified termination of workers’ contract.
If the Board finds the employer’s downsizing decision unjustified, it no longer has the power to, on the request of workers, order the employer to reinstate them with compensation to their former employment. Under the derogatory procedure, the workers’ best outcome for unjustified termination is compensation according to seniority in the company.
On top of losing their jobs, lower-paid workers are also denied rights and options and are ultimately made to bear the brunt of the company’s economic difficulties. Employers, on the other hand, are not only ensured legal options for imposing unfair working conditions on precarious workers but also, the procedural derogation creates a flagrant loophole allowing a considerable margin for abuse.
Bypassing the Commission for Conciliation and Mediation
Furthermore, and following a similar logic, all employees in essential services (irrespective of income) no longer have access to the Commission for Conciliation and Mediation in case of labour disputes with their employer. According to the Employment Relations Act, a “labour dispute” is characterised as all disagreements between employer and workers or recognised trade unions pertaining to wages, terms and conditions of employment and reinstatement of workers. This Commission is a formal space where workers can benefit from the backing and knowledge of their trade unions to resolve disputes, without having to incur the costs of hiring lawyers to fight their case before the Employment Relations Tribunal. However, under the Act’s procedure, the Commission is bypassed and it has to immediately refer the case to the Tribunal.
No prohibition of less favourable contractual terms in the case of transfers or undertaking
Another depletion of workers’ rights is observed in the context of business transfers. Before these changes, when a company was absorbed by another the WRA ensured that the change of employer did not result in the imposition of less favourable contractual terms of employment for workers.
This is a fundamental protection for workers. Transfers, like other undertakings of commercial activity, are a business deal with a view to profit. However, essential workers, who like all workers have no say in the business move nor in the change of employer, will no longer have the protection afforded to them under the WRA following a transfer of undertaking.
Not only are less favourable working conditions not prohibited anymore, but workers who refuse the new conditions will not be entitled to compensation provided for unjustified termination of a contract, even as the terms of their previous contract cease to exist.
For these workers, the only remaining guarantee is that it is not the employer, but the Minister who may decide (via regulations) the new terms and conditions of their employment – but this is a highly unreliable bulwark given the government’s recent actions.
Criminal law as a façade to weakening workers’ rights
Against the backdrop of this unjustifiable affront to workers’ rights, the Act’s provisions criminalising breaches of the WRA appear at best disingenuous. The final amendments of the WRA target elementary labour law protections, such as the prohibition of discriminatory practices, the payment of remuneration, the labour inspector’s powers to make inquiries and even, ironically, provisions relating to overtime. For the violation of these provisions, employers may now be liable to a fine of Rs 25,000 and risk up to 2 years’ imprisonment.
While the seriousness and wrongfulness of these acts are irrefutable, the government’s despairing attempt at protecting workers cannot be taken seriously. By criminalizing violations of WRA, the government pretends to take workers’ livelihood and legal protection seriously, while simultaneously disarming workers of the very rights that protect them against the whims of capital.
The Act also indicates several other authoritarian tendencies of the government. Spitting in public spaces is now a third-class contravention, penalised by Rs 5,000 and up to 10 days in prison. Teachers found in breach of the new distance learning regulations applicable during a pandemic face a fine of Rs 25,000 (as opposed to Rs 1,000).
More generally, the Act provides for increased sanctions for minor offences (defeating the idea of them being “minor”). The justification for augmenting prison terms can hardly be seen as an imperative of the pandemic given that prisons are a source of amplification of infectious diseases. Nevertheless, misdemeanours are now punishable by at least 30 days in prison (as opposed to 10) and a fine of Rs 10,000. Similarly, fines for contraventions are also doubled (from Rs 5,000 to Rs 10,000) and their wrongdoer can face up to 30 days in prison.
The intensification of criminal sanctions is especially worrying given that all these provisions are retroactively applied, as from 23 March 2020. The non-retroactivity of criminal law is a rudimentary democratic notion.
This daunting inclination is cemented by certain provisions of the Quarantine Act of 2020 (replacing the Quarantine Act of 1954), which widens police powers without any appropriate safeguards. In the event of a pandemic, the police may enter private premises without a warrant. In the absence of any precision, premises can mean your home or your business. A police officer may also make arrests without a warrant, on the simple basis of their reasonable suspicion. All breaches of the Quarantine Act will be now sanctioned by a fine of half a million rupees (as opposed to Rs 1,000) and up to 5 years’ imprisonment (instead of 6 months).
Our elected representatives did not hesitate to vote in favour of a law that flagrantly violates the principle of legality of criminal law and that grants unchecked powers to police officers. The amended provisions of the WRA deprive the majority of the working class of their right to collectively organise and fight for fair conditions of employment. The unilateral retraction of paid annual leaves constitutes a violation of workers’ right to dignity. The enhanced criminal sanctions now applicable to employers who violate serious provisions of the WRA seem to be little more than an attempt to cloak the government’s assault on workers’ rights. The amendments betray any idea of social solidarity, and the Act is deeply authoritarian in character. That it took Parliament 6 days (at most) to consider, amongst numerous other laws, the dismantlement of workers’ rights demonstrates its utter disregard for workers’ well-being and livelihood.