COVID-19 (MISCELLANEOUS PROVISIONS)

ACT 2020

BUSINESS AND EMPLOYMENT MEASURES

PREAMBLE ......................................................................................................................2

BANK OF MAURITIUS ACT .................................................................................3

BOARD DECISION MAKING PROCESS FOR THE FINANCIAL SECTOR .......3

COMPANIES ACT ..........................................................................................................4

CONSUMER PROTECTION (PRICE AND SUPPLIES CONTROL) ACT ...........4

COURTS ACT ................................................................................................................. 5

IMMIGRATION ACT ................................................................................................... 6

INCOME TAX ACT .......................................................................................................6

COVID-19 Levy ...............................................................................................................6

Self Employed Assistance Scheme ................................................................................ 7

Wage Assistance Scheme ............................................................................................... 8

INSOLVENCY ACT ...................................................................................................... 8

INTERPRETATION AND GENERAL CLAUSES ACT ........................................... 9

LANDLORD AND TENANT ACT ............................................................................10

MAURITIUS REVENUE AUTHORITY ACT ......................................................... 11

PAYMENTS OF UTILITY BILLS AND PERMITS ..................................................11

TOURISM AUTHORITY ACT ...................................................................................12

WORKERS FROM HOME AND FLEXITIME .........................................................12

Annual Leave ..................................................................................................................13

Overtime .........................................................................................................................13

Termination of Employment ........................................................................................13

Reduction of Workforce ............................................................................................... 14

OTHER MEASURES AFFECTING BUSINESS AND EMPLOYMENT .............. 15

TABLE OF CONTENTS

DISCLAIMERTHIS DOCUMENT SUMMARISES THE MAIN CHANGES BROUGHT BY THE COVID-19 (MISCELLANEOUS PROVISIONS) ACT 2020. THE DOCUMENT NEITHER COVERS EVERY ASPECT OF THE COVID-19 (MISCELLANEOUS PROVISIONS) ACT 2020 NOR DOES IT ADDRESS QUESTIONS RELATING TO THE INTERPRETATION AND/OR VALIDITY OF THE CLAUSES CONTAINED IN THE ACT. THIS NOTE DOESNOT REPRESENT LEGAL OR OTHER FORMAL ADVICE.

1

PREMEABLE

The Covid-19 pandemic is an unprecedent crisis that has affected several countries around the world. The imposition of the lockdown (confinement) period was taken unexpectedly and therefore many businesses were not in a position to take the necessary precautionary measures to prevent issues such as termination of employment or the proper arrangements for work from home.

Having a well-diversified economy, Mauritius was able to sustain the BPO/IT and the Financial Sector during the period of confinement since these sectors were still in operation through the improvised work from home scheme created by certain companies of the private sector.

The Government has further assisted companies to delay redundancy by creating the Wage Assistance Scheme which has helped to pay the salary of employees for the months of March, April and May. However, most of these measures were seen as reactive rather than proactive due to the unprecedented nature of the pandemic.

The Covid-19 (MISCELLANEOUS PROVISIONS) Act 2020 (The Act) was assented on the 16th May 2020. The ACT aims at helping the deconfinement process. There are 56 legislations that was amended, and which may impact the way that we do business.

The Chambers of Urmila Boolell SC presents you this guide on the Covid-19 (MISCELLANEOUS PROVISIONS) Act 2020. The guide aims at demystifying the amendments related to business and employment measures.

2

BANK OF MAURITIUS ACT

• The Bank of Mauritius Act has been amended to give the Bank the power to provide grants to the Government in order to assist in its fiscal measures which aim to stabilise the economy of Mauritius.

• Subject to the approval of the Minister, the Bank may subscribe to, hold and sell shares of and provide capital to or invest in any corporation or company set up for the purpose of facilitating economic development.

• Subject to the approval of the Board, the Bank of Mauritius may invest in any corporation or company, such amount of official foreign reserves with the view of facilitating the economic development.

• The Board may approve such grant from the Special Reserve Fund to assist the Government in its fiscal measures to stabilise the economy of Mauritius.

BOARD DECISION MAKING PROCESS FOR THE FINANCIAL SECTOR • Board meetings may be held by telecommunication facilities such as telephone calls, Visio-conferencing or any methods of communication by all members participating in a quorum, who can hear each other through out the meeting.

• The meeting may also be held by a number of the members constituting a quorum, gathered together at the date and time appointed for the meeting at a designated place.

• The resolution shall then be in writing, signed or assented by all members.

• The resolution shall be deemed to be valid and effective and as though it has been passed at a duly convened and held meeting.

• Such resolution may consist of several documents that can be mailed or transmitted by any means of communication, each signed or assented by one or more members.

• Electronic signatures are accepted.

3

COMPANIES ACT

• The Registrar may issue such Practice Directions, guidelines or such other instructions as may be necessary for the proper administration of this Act, which shall be published in the Gazette and shall remain in force unless amended or revoked by publication in the Gazette

• Subsection 115 (a) and (c) (relating to Annual Meeting of shareholders) will not apply during the Covid-19 period and such further period, as the Registrar may determine, after the Covid-19 period lapses.

• Annual meeting of shareholders extended from 6 months to 9 months after the balance sheet date of the company.

• The Act excludes the application of section 162 (relating to the duty of directors on insolvency) during the Covid-19 period.

• Time limit for financial statements has been extended from 6 months to 9 months.

• The 28 days’ timeframe for the submission of accounts has been extended to 3 months.

CONSUMER PROTECTION(PRICE AND SUPPLIES CONTROL) ACT

• A new term, namely, the Fixed Penalty Notice (FPN) is introduced. If a person commits an offence under the Consumer Protection (Price and Supplies Control) Act and such offence has been detected by an authorised officer or police officer, that person can choose, either:

o To accept the Fixed Penalty Notice (FPN); or o The offence will be reported, and a case will be issued against that person

4

• If the person accepts the FPN, o a copy of the FPN (drawn up in quadruplicate) will be served on the person o the person will be called to pay the fine within 21 days at the appropriate District Court. The person must produce the FPN and his National Identity Card.

• Within 14 days of the date of payment, the District Court officer must then return the FPN to the authorised officer or police officer.

• When as a result of failure to pay the appropriate fine with in the time limit mentioned in the FPN, a criminal proceeding is issued against a person in respect of the FPN, he shall be liable to pay a fine which is not less than twice the amount of the fixed penalty of that offence.

The commission of an offence specified in the Fifth Schedule of the Act; the Permanent Secretary may apply for the suspension of the trade licence for a period not exceeding one month.

COURTS ACT

• This extends the powers of the Chief Justice to regulate the practice and procedure before any court and will determine which judicial services are deemed as essential – during and after the Covid-19 period.

• Court may now limit the number of people attending the courtroom or limit number of people in Chambers; or

• Court’s proceedings may also be heard remotely by using communication facilities such as Visio-conference.

5

IMMIGRATION ACT

• Where a person who has been issued with a permit under the Immigration Act wishes to apply for an extension or variation of the permit, he may do so whilst being in Mauritius.

• All expired visas and permits are extended by 30 days from the lifting of confinement or further period as prescribed by the amendment.

• Also, a permit will not be considered as expired if it expires 21 days after the confinement period and therefore will remain valid for 30 days.

INCOME TAX ACT

• Contribution to COVID-19 Solidarity Fund: This tax relief measure is for an individual who shas, in the income year commencing on 1 July 2019 or 1 July 2020, made a contribution to the COVID-19 Solidarity Fund – by way of a deduction from his net income (subject to sections of the Income Tax Act) of the amount contributed or donated in that income year.

COVID-19 LEVY

• This Levy applies for the year commencing on 1st July 2020 to 1st July 2021 to an employer who has received an allowance under the Wage Assistance Scheme.

• An employer is either an individual or a resident société or a company whose accounting period ends on any date during the period starting on 1 May 2020 and ending 31 December 2020

6

• The employer shall be liable to pay a levy, as follows:

• the total amount paid to him under the Wage Assistance Scheme; OR

• fifteen percent of the gross income or chargeable in come;

• whichever is lower

Penalty for late payment shall be 10% of the levy amount plus an interest rate of 1% per month.

False declarations carry a fine of up to MUR 1 Million and an imprisonment term not exceeding 2 years.

The Director-General may within a period of 3 years issue a notice to make a claim, and with interest.

SELF EMPLOYED ASSISTANCE SCHEME

• Applicable for a person who has been in business for his own account; or

• Is a trade person carrying out activities such as mason, cabinet maker, plumber, hairdresser, artist or other similar activities for a period of at least 3 months prior to the start of the COVID-19 period:

1. an allowance of 5,100 rupees for the period 16 March - 15 April 2020; 2. an allowance of 2,550 rupees for the period 16 April - 30 April 2020 3. an allowance of 5,100 rupees for the month of May 2020 4. not applicable if the consolidated income with spouse exceeds Rs 50000 monthly

• This scheme is not applicable to registered fishermen.

7

WAGE ASSISTANCE SCHEME

• Wages to all eligible employees to be paid via the employer as follows: 1. Up to 12,500 for the month of March 2020

2. Up to 25,000 for the months of April and May 2020

3. Scheme does not cover employees with salary exceeding Rs 50,000 per month.

4. False declarations from employers entails a fine not exceeding Rs 50,000 and an imprisonment term not exceeding 2 years

5. An application seeking this Assistance shall be made within a period of 3 months from the end of the month to which it is related; or within a period of 2 months from the date the Covid-19 period lapses – whichever is the earlier.

INSOLVENCY ACT

• A creditor or creditors, the trustee, provisional trustee or super-visor of a debtor may now petition the Court for a bankruptcy order where the debtor owes the creditor 100,000 rupees or more or, where 2 or more creditors join in the application, the debtor owes a total of 100,000 rupees or more to those creditors between them.

• The Court will not make a bankruptcy order on the petition of a secured creditor unless the latter has established that the amount of the debt exceeds the value of the security claimed by the creditor by at least 100,000 rupees.

• The debtor will be able to oppose a creditor’s petition whereby the value of the debt owed is less than 100,000 rupees.

8

• A debtor may file a petition with the Court to have himself ad-judicated bankrupt on the ground that he is unable to pay his debts where he has combined debts of 100,000 rupees or more.

• A creditors’ meeting held during the period of confinement and up to 3 months thereafter shall not be valid.

• The resolution for the winding up a company (other than by way of Court order) or the special resolution for the winding up a company shall be void during confinement period or within 3 months after the end of the confinement period. However, this does not apply to a company holding a Global Business Licence under the Financial Services Act.

• The appointment of a receiver under a charge deed during the Covid-19 period shall be ineffective and void.

• The minimum amount for a statutory demand debt to increase from MUR 100,000 to MUR 250,000, and the period of compli-ance with a statutory demand to increase from 1 month to 2 months from service. The time limit for a debtor to comply with a bankruptcy notice has increased from 14 to 28 days.

• The timeframe for holding the first creditors’ meeting, in case of a company under administration, is extended from 10 days after the appointment of the administrator to 30 days after the Covid-10 period lapses.

INTERPRETATION AND GENERAL CLAUSES ACT

• The amendments deal with the definition of the Covid-19 confinement.

• “Covid-19 period” is defined as starting on the 23rd March 2020 and ending on 1st June 2020 or ending on such later date as the Prime Minister may, by regulations, prescribe.

9

◊ New amendments provided under Section 39A of the IGCA now prescribes timeframes for certain events. For instance (i) time to lodge judicial proceedings (ii) make a payment (iii) applying for licence or permit and other relevant measures such as (iv) submit-ting reports, (v) make a decision or give a determination, (vi) reg-ister a document, (vii) serving a notice (viii) imposing a time on a person to do or refrain from doing any other act or thing and the time for doing or refraining from doing that other act or thing. The new timeframe will apply if the time to perform the above actions expires or falls wholly or partly, during either the COVID-19 period or a period of 30 days after the COVID-19 period lapses.

• No charge, interest, penalty, surcharge or any other additional fee will apply during the COVID-19 period or a period of 30 days after the COVID-19 period lapses.

• No offence will be committed if the time imposed on a person to do or refrain from doing an act or thing ex pires or falls wholly or partly during the COVID-19 period.

• A person who is required to follow CPD courses during a CPD year, shall, on account of the COVID-19 period, be exempted from such requirement for the current CPD year.

LANDLORD AND TENANT ACT

• No penalties for non-payment of rent for the month of March to August 2020

• All related provisions on breach of the tenancy agreement are waived. However, the above applies provided that the accrued rent is fully paid (in instalments), by 31st December 2021 The Court is precluded to issue any possession order if the total rent is paid by 31st December 2021

• The Landlord and Tenant Act applies to business premises in-tended for business, commercial, industrial or professional pur-poses that were let before the 1st July 2005 and for unfurnished non-business premises. The provisions also apply to residential

10

MAURITIUS REVENUE AUTHORITY ACT

• Deadline to apply for review under the Expeditious Dispute Resolution Tax Scheme has been extended from 30th June to 31st August 2020.

• Time period for all payable items to the MRA extended to 25th June 2020.

• If the time imposed to make an assessment, a decision, a determination, a notice or a claim, expires, or falls wholly or partly, during the COVID-19 period or a period of 30 days after the COVID-19 period lapses, there is an extension of 2 months from lifting of confinement or a period of 30 days after the COVID-19 period lapses. Extension of statutory delays regarding the proceedings before the Assessment Review Committee when the deadline falls either within the confinement period or 21 days post-confinement, is suspended and that statutory delay shall start from the day following the last day of the Covid-19 period or the last day of the 21 days’ period.

PAYMENTS OF UTILITY BILLS AND PERMITS

• Central Electricity Board – the extension period for the payment of the utility bill will be prescribed by law.

• Central Water Authority – the extension period for the payment of the utility bill will be prescribed by law.

• Therefore, there is no surcharge being imposed and the supply of these will not be disconnected. However, this applies only if the period of 20 days of issue of the bill expires during the confinement period or such further period as may be prescribed after the COVID-19 period lapses.

11

TOURISM AUTHORITY ACT

• On the ground of public health and for a given period, the Au-thority may issue guidelines to holders of pleasure craft licences which will: o Restrict the number of passengers authorised on board pleasure crafts at any one tim o Impose additional measures which is deemed to be necessary by the Authority.

• Failure to comply with the guidelines issued will be an offence.

• When a person is served a notice to pay a fixed penalty and the time expires, or falls wholly or partly, during the COVID-19 period or a period of 30 days after the COVID-19 period lapses, the person will have to pay the penalty not later than 3 months after either the COVID-19 period lapses or the period of the period of 30 days lapses.

• If the time to renew a tourist accommodation certificate, tour-ist enterprise licence, pleasure craft licence or canvasser permit expires, or falls wholly or partly within the COVID-19 period or a period of one month after the COVID-19 period lapses, the certif-icate or licence is deemed not to have expired and shall remain valid for a period of 12 months after the COVID-19 period lapses or after the period of one month lapses.

WORK FROM HOME AND FLEXITIME

• An employer may now require any worker to work from home provided a notice of at least 48 hours is given to the worker.

• A worker who is employed on shift work shall not, during the COVID-19 period and such further period as may be prescribed, be entitled to any allowance for work at night.

• A worker may now request to work on flexitime depending on reasonable business grounds.

12

ANNUAL LEAVE

• An employer is now entitled to withhold up to 15 days’ annual leave during a period of 18 months following the confinement period.

• This measure does not apply to workers who have been working during the period of confinement.

OVERTIME

• The Act has reduced the rate applicable to overtime worked on public holidays (including Sundays) that are performed outside the normal working hours.

• The rate has reduced from 3 to 2 times the normal. Furthermore, an employer may provide for time off in lieu of payment for over-time.

• The time off can be accumulated until the 31st of December 2021.

TERMINATION OF EMPLOYMENT

• No termination shall be allowed in the months where an employer benefited from the Wage Assistance Scheme or other financial assistance from the Government.

• An employer would be debarred from the Scheme if he has benefitted from funds under the Scheme and has not paid his employees for the months of March, April and May or he has laid off even one employee during the confinement period.

13

REDUCTION OF WORKFORCE

The Covid-19 Act allows the reduction of workforce in certain enterprises in the service sector such as aviation, the port, hospitals, hotel services and any other listed service sectors.

• In the abovementioned sectors, employers do not need to consult representatives or trade unions to terminate contracts of employment.

• A notice of 15 days can be issued to the Redundancy Board before reducing workforce.

• If the Board is satisfied that the reasons for the reduction of the workforce or the closing down are justified, then the Board will order that the worker be paid 30 days’ wages as indemnity in lieu of notice.

• Alternatively, in lieu of the termination of employment, at the request of the employer and subject to the consent of the worker concerned, the Board may order that the worker shall proceed on leave without pay for such period as the employer may specify in his notification subject to the condition that the resumption of employment be on such new terms and conditions.

14

Other measures that may affect business and employment are found under the Prevention of Resurgence and Further Spread of Epidemic Disease (COVID-19) Regulations 2020. In the context of business and employment the following measures shall apply:

• Employees should wear protective masks over their nose and mouth unless the employment activity requires that no protective mask may be worn or shall be removed to carry out the said activity.

• The protective mask can be removed temporarily to ascertain the identity of a person.

• Employers shall implement appropriate measures to ensure that social and physical distancing rules are complied with.

• Employers shall provide their employees with hygiene products such as soap, hand sanitisers and tissue paper. Moreover, the employer shall provide bins for the disposal of waste whilst ensuring that the waste is regularly disposed of.

• Employers shall further ensure that the place of work, including the used surfaces such as benchtops, desks and doorknobs be regularly cleaned and disinfected.

OTHER MEASURES AFFECTING BUSINESS AND EMPLOYMENT

15