COVID-19 (Miscellaneous Provisions) Act 2020: An Overview for Businesses UPDATED: 18 MAY 2020 - 5 Fifteen ...
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in collaboration with COVID-19 (Miscellaneous Provisions) Act 2020: An Overview for Businesses UPDATED: 18 MAY 2020 w w w. 5 f i f t e e n b a r r i s t e r s . c o m / c o v i d - 1 9
Introduction
This note follows our document dated 11 May 2020, which
summarised the main provisions that were proposed to be introduced
through the COVID-19 (Miscellaneous Provisions) Bill. While the Bill
was introduced in the National Assembly on 13 May 2020, it was
passed with certain amendments made to it on 15 May 2020.
In this update note, we summarise the main provisions of the COVID-
19 (Miscellaneous Provisions) Act (the “COVID-19 Act”) that are
relevant for businesses. Where certain amendments were made to the
initial Bill (and did not therefore feature in our initial note dated 11
May 2020), these amendments are identified in this updated note in
blue.
This note does not cover every aspect of the COVID-19 Act. Nor does it
address certain questions relating to the interpretation and/or validity
of the provisions of the COVID-19 Act. This note does not represent
legal or other advice. For any legal assistance, please contact us
directly.
While most provisions in the COVID-19 Act have been enacted with
retrospective effect, this note does not reference the date of
commencement of each provision of the COVID-19 Act.
2
General Matters
The Interpretation & General Clauses Act 1974 (the “IGCA”) is an
enactment that provides for the construction and interpretation of other
legislative instruments, as well as other related matters. The COVID-19 Act
amended the IGCA as follows:
• Where the term “COVID-19 period” is used in other enactments, it
refers to the period starting on 23 March 2020 and ending on 1 June
2020 or such later date that the Prime Minister may prescribe by
regulations.
• Where enactments provide a time period for the following matters, and
such time expires or falls wholly or partly during the COVID-19 period or
30 days after the COVID-19 period lapses, such time period may be
extended by regulations made by Ministers:
➢ the institution or lodging of judicial proceedings
➢ statutory payments (e.g. fine, tax, charge, levy, duty, penalty, interest,
surcharge, etc.)
➢ the making of a decision or determination pursuant to an enactment
➢ the submission of a report under an enactment (including any information,
book, record, return, prospectus, etc.)
➢ registration of a document
➢ service of notice or any other document
➢ power to do something or refrain from doing something
➢ the extension of a licence (e.g. permit, approval, clearance, certificate, etc.
• The exemption from CPD courses for the CPD year.
3
Employment (1/3)
The amendments made to the Workers’ Rights Act 2019
(the “WRA”) are as follows:
• Work from home – An employer may require any worker to
work from home provided a notice of at least 48 hours is given • Overtime – Workers in the construction industry or
to the worker and subject to regulations that the Minister of manufacturing sector governed by the Factory Employees
Labour may make. The WRA does not apply to an employee (Remuneration) Regulations 2019 to be entitled to the following
working from home, except in certain respects. to compensate for overtime during the COVID-19 period or such
further period as may be prescribed: either (i) remuneration for
• Flexitime – While an employer may request a worker to work on overtime, i.e. twice basic hourly rate for work on public holiday
flexitime (i.e. a core period of the day during which the and 1.5 times basic hourly rate for overtime on any other day, or
employee is required to be at work, plus a period during which (ii) paid time-off calculated in accordance with the rate at which
all remaining hours of work should be performed), the overtime remuneration would be payable and which the worker
employer must give the worker at least 48 hours’ notice. can carry forward up to 31 December 2021 and receive payment
Further, a worker may request to work on flexitime, and such if he cannot avail himself of all the time-off by then, or ceases to
request is not limited to circumstances where the worker has to be in the employment of that employer.
care for a child under the age of 4 or who has an impairment,
as the case used to be prior to the COVID-19 Act. • Annual leaves – Between June 2020 and November 2021, an
employer is entitled to withhold up to 15 days’ annual leave
• Shift work – No allowance to be paid to a worker working on a from the number of annual leaves to which a worker would have
night shift from the date of commencement of the COVID-19 been entitled from the beginning of the year of COVID-19 period
Act to such date as may be prescribed (this provision does not or such further period as may be prescribed. No such deduction
have retrospective effect). is allowed in respect of a worker who worked on such days as was
required by his employer between 23 March and 1 June.
4
Employment (2/3)
• Termination – No termination in the month during which an employer benefited
from the Wage Assistance Scheme or received some other financial assistance
from the government.
• Transfer of undertaking – The Minister of Labour may make specific regulations.
• Redundancy – The Minister of Labour may make regulations to exempt an
employer from the application of section 72 of the WRA, where that employer
provides services in certain sectors requiring a minimum service (specified in the
Third Schedule to the Employment Relations Act), and instead subject that
employer to an alternative “fast-track” process under section 72A of the WRA. In
particular, the alternative process does not require the employer to consult or
negotiate with the employees concerned before notifying the Redundancy Board
of the intended termination. Where the Redundancy Board finds that the grounds
for termination are justified under the new section 72A (i.e. the “fast-track”
procedure), the Redundancy Board may order that the employee proceeds on leave
without pay (during which time the employee is eligible to unemployment benefit
from the Workfare Programme Fund if he does not take up alternative work),
subject to the employer and the employee consenting to that approach.
• Portable Retirement Gratuity Fund (PRGF) – The payment of contributions to the
PRGF is postponed until such date as the Minister of Labour may prescribe.
Regulations will be made to provide for the contribution or gratuity to be paid by an
employer where an employee retires or dies, or resigns or is terminated, on or after
1 January 2020.
See also the provisions that are proposed to be made in respect of the Wage 5
Assistance Scheme under the Income Tax Act.
Employment (3/3)
• The COVID-19 Act also amends the Employment
Relations Act 2008 to provide that the
Commission for Conciliation and Mediation must
forthwith refer to the Employment Relations
Tribunal, all labour disputes relating to certain
industries, and that the Tribunal is required to
make an award within 30 days of the referral.
The concerned industries are civil aviation and
airport, air traffic control, health, hospital, and
port.
• An amendment to the Education Act 1957 may
also affect employees of educational institutions.
By virtue of that amendment, the Ministry of
Education is entitled to order any educational
institution to provide distance education and
online learning programmes, in which case the
teaching staff and other personnel of the
educational institutions will be required to
engage in, produce and conduct, distance
education and online learning programmes.
Employees who refuse to comply, without
reasonable excuse, are deemed to be in breach
of their respective contracts of employment and
may be liable to disciplinary proceedings.
6
Corporate
The amendments to the Companies Act 2001 (the “CA01”) include:
• No annual meeting of shareholders during COVID-19 period or such
further period that the Registrar of Companies may determine, and the
period during which an annual meeting of shareholder should take
place is extended from 6 months to 9 months after the balance sheet
date of the company or such further period that the Registrar of
Companies may determine.
• Whereas section 162 of the CA01 provides for directors’ duty to
prevent the company from trading while it is insolvent, the application
of that section is excluded during the COVID-19 period and such further
period that the Registrar of Companies may determine.
• Extension of time for the completion and filing of financial statements.
The Registrar of Companies may also issue Practice Directions, guidelines
or other instructions “for the proper administration” of the Companies Act,
the Foundations Act, the Limited Liability Partnerships Act and the Limited
Partnerships Act.
7
Insolvency
The COVID-19 Act made the following amendments to the Insolvency Act 2009:
• Winding up resolutions passed by a company or its creditors during the COVID-19 period or within 3
months after are ineffective and void, except in respect of companies holding Global Business Licence.
This new provision does not apply where the period, if any, fixed for the duration of a company by its
constitution expires, or the event, if any, occurs, on the occurrence of which the constitution provides
that the company is to be dissolved, and the company passes an ordinary resolution that it shall be
wound up. The COVID-19 Act does not provide a similar exemption for Authorised Companies
authorised under the Financial Services Act.
• No creditors’ meeting under section 142 to take place during the COVID-19 period and up to 3 months
after. This new provision offers no exemption for companies holding a Global Business Licence and
therefore this could limit the effectiveness of exempting such a company from the above provision.
• The minimum amount for a statutory demand debt increases from MUR 100,000 to MUR 250,000, and
the period of compliance with a statutory demand is increased from 1 month to 2 months from service.
The limitation period for applying to set aside a statutory demand is increased from within 14 days to 28
days of the service of the statutory demand.
• The appointment of a receiver under a charge deed during the COVID-19 period is ineffective and void.
While a company holding a Global Business Licence may be wound-up by creditors due to the
exemption referred to above, the creditors may not have the right to appoint a receiver even if the have
the right under a charge deed in their favour.
• In respect of a company under administration, the timeframe for holding the first creditors’ meeting is
extended from 10 days after the appointment of the administrator to 30 days after the COVID-19 period
lapses.
8
Income Tax (1/2)
COVID-19 Solidarity Fund – Contributions made by individuals and
companies to this fund are deductible from the net income after
deductions of income exemption threshold, interest relief in
respect of housing loan, medial or health insurance premium relief
and allowance for household employees. Any unrelieved amount
may be carried forward and deducted against the net income of
the next income year up to a maximum of 2 income years.
Wage Assistance Scheme –
• Where the employer has benefited from the Scheme in a given
• Eligible employees: part-time or full-time, basic monthly salary month and it terminates the employment of an eligible
of up to MUR 50,000, not public sector, not those excluded by employee during that month, the employer is not entitled to
Minister (i.e. Minister may by regulations exclude a category of any allowance in any subsequent month.
employees, or an employee employed by a category of
employers) • Where the employer has benefited from the Scheme in a given
month and has failed to pay the basic salary of an eligible
• Assistance from MRA to employer: 50% of basic salary for employee, the employer is liable to refund the allowance to the
March, 100% of basic salary for April (50% for Agalega and MRA and it will be precluded from any allowance in the
Rodrigues) and 100% of basic salary for May, plus further as subsequent month.
may be prescribed. The MRA may request further information
or document from the employer or employee within 1 year • Where the employer has benefited from the Scheme in a given
after payment of the allowance is made. month and during that period, it has reduced the basic salary
of an eligible employee, the employer is liable to refund the
allowance that has been paid to that eligible employee and the
employer is not entitled to any allowance in the next month. 9
Income Tax (2/2)
COVID-19 levy –
• Levy imposed on employers who have benefitted from the • No levy is payable if the employer is not liable to income
Wage Assistance Scheme. Levy is imposed on gross income tax with respect to that year.
less all allowable deductions except unrelieved amount of a
loss carried forward (for companies) from a previous year. • The Minister may make regulations to exclude certain
category of employers from the levy.
Category of employer Years of assessment in respect of which levy is payable Basis of computation of levy
Individuals Years commencing on 1 July 2020 and 1 July 2021 In the 1st year of assessment: either (i) total amount paid
under Scheme, or (ii) 15% of gross income after deduction
of allowable expenditure, whichever is lower. In the 2nd
year of assessment: either (i) amount paid under Scheme
as reduced by levy payable in previous year, or (ii) 15% of
gross income after deduction of allowable expenditure,
whichever is lower.
Companies If accounting period ends on any date between 1 May 2020 and 31 In the 1st year of assessment: either (i) total amount paid
Dec 2020, and 1 May 2021 and 31 Dec 2021, levy is payable in respect under Scheme, or (ii) 15% of chargeable income for levy*,
of the years of assessment commencing on 1 July 2020 and 1 July whichever is lower. In the 2nd year of assessment: either
2021. (i) total amount paid under Scheme as reduced by levy
payable in previous year, or 15% of chargeable income for
If accounting period ends on any date between 1 Jan 2021 and 30 Apr levy*, whichever is lower.
2021, and 1 Jan 2022 and 30 Apr 2022, levy payable in respect of years
of assessment commencing on 1 July 2021 and 1 July 2022. *chargeable income for levy means income after all
allowable deductions except the unrelieved amount of a
Resident sociétés Years commencing on 1 July 2020 and 1 July 2021.
loss carried forward from a previous year. 10Bank of Mauritius
The COVID-19 Act brings certain amendments to the Bank of
Mauritius Act to extend the powers of the Board of the Bank of
Mauritius to invest in private corporations and to assist the
Government of Mauritius.
• The Bank of Mauritius may invest, with the approval of the
Minister of Finance and the Board of the Bank of Mauritius,
such amount of the official foreign reserves as the Board of the
Bank of Mauritius may determine in any corporation or
company set up for the purpose of facilitating economic
development.
• The investment may be made in the form of shares, provision of
capital or other investments.
• Prior to this amendment, the Bank of Mauritius had the power • We note however that the words ‘facilitating economic
to hold and sell shares in a corporation or company set up for development’ is not defined in the Banking Act and as such
the purpose of facilitating economic development. The the determination of whether a corporation or company is
amendment purportedly widens the type of investment which set up for the ‘purpose of facilitating economic development’
the Bank of Mauritius can make into such corporations but is, in our view, left to the discretion of the Board of the Bank
remains subject to sections 6 and 9(b) of the Bank of Mauritius of Mauritius.
Act with regards to advances.
11Imports
The Customs Act 1988 is amended as follows:
• Where in relation to the time limit for proceeding with a
validated bill of entry by an importer, the goods are entered
and cleared by an SME or VAT registered person, the duty,
excise duty, taxes and any fees or charges leviable on the goods
cleared in any other month other than June shall now be paid
not later than 16 working days after the end of that month The Freeport Act is amended to provide as follows:
instead of 7 working days.
• A private freeport developer is authorised to provide
• Goods entered during the period of 2 November 2019 to 31 warehousing facilities for the storage of goods (which
December 2020 may be warehoused for a period of 36 months have been cleared from Customs) in a freeport zone
instead of 24 months. to any person during the COVID-19 period and such
The Customs Tariff Act is amended to provide for 0% duty on further period as may be prescribed after the COVID-
“Disinfectants” including “Hand Sanitiser” bearing H.S. Code 19 period lapses. The fees payable for such
3808.94.10 and “Other” bearing H.S. Code 3808.94.90. authorisation per enterprise are Rs 3,000 if paid
within the due date and Rs 4500 if paid after the due
date.
• Goods which are entered during the period between
1 October 2018 and 31 December 2020 can be stored
for a maximum period of 36 months instead of 24
months.
12Environment Protection
The COVID-19 Bill amended the Environment Protection Act as
follows:
• Where under the Environment Protection Act, a time limit is
imposed on a person to do or refrain from doing an act or
thing, and such time expires, or falls wholly or partly during the
COVID-19 period or 21 days after the COVID-19 period lapses,
the person may do or refrain from doing the act or thing no
later than 30 days after such period lapses or not later than
such further period as may be prescribed.
• In relation to an EIA licence, if it expires during the COVID-19
period or 21 days after the COVID-19 period, the EIA licence is
deemed not to have expired and remains valid for a period of
30 days after such period lapses or for such further period as
may be prescribed.
• The payment of the environment protection fee in relation to
(a) hotel and (b) guest house or tourist residence of more than
4 bedrooms, is not applicable for the period of 1 March 2020 to
31 December 2020.
• The requirement of a Preliminary Environmental Report for the
undertaking of “rearing of poultry above 5000 heads” has been
removed, instead the requirement is now applicable for
“rearing of poultry above 15,000 heads”.
13Tourism
The COVID-19 Act amended the Tourism Authority Act 2006 as
follows:
• As far as holders of pleasure craft licences are concerned, the
Authority may on grounds of public health and for such periods
it considers appropriate, issue guidelines for the purposes of
restricting the number of passengers allowed on board of a
pleasure craft at any one time. Failure to comply with such
guidelines will be constitute an offence.
• With regard to notices of fixed penalties issued by the
Authority, where the time period of 14 days expires or falls
wholly or partly during the COVID-19 period or 30 days after
the COVID-19 period lapses, the penalty must be paid within 3
months after such period has lapsed.
• Where a tourist accommodation certificate, tourist enterprise
licence, pleasure craft licence or canvasser permit expires or its
expiry falls wholly or partly during the COVID-19 period or one
month after the COVID-19 period lapses, such licence or permit
is deemed not to have expired and remains valid for a period of
12 months after such period has lapsed. The payment of the
renewal fee for the period such licence or permit is renewed
may be made in equal monthly instalments, however, failure to
make 3 consecutive monthly instalments will cause such licence
or permit to lapse.
14Miscellaneous (1/2)
• Moratorium for payment of electricity and water bills that
became due during COVID-19 period (moratorium period
to be provided by regulations).
• For lease agreements whether or not governed by the
Landlord & Tenant Act (i.e. both residential and commercial
leases), the non-payment of rent for the months of March
to August 2020 and as such other subsequent month as
may be prescribed, will not constitute a breach of the
lease agreement, provided that rent is fully paid in
instalments by 31 Dec 2021 or such other date as may be
prescribed.
• The Data Protection Commission may issue licences,
permits and authorisations during the COVID-19 period
provided that such action constitutes a necessary and
proportionate measure in a democratic society.
• By virtue of the amendment made to the Financial
Reporting Act, books, documents or records under the
control of an auditor required to be produced by that
auditor to the Financial Reporting Council may be in
electronic form. This amendment is irrespective of the
COVID-19 period.
15Miscellaneous (2/2)
• The Board of the Financial Services Commission may now hold
its meetings by means of audio or audio and visual
communication and where the quorum is present, or by • The 50% surchage payable in respect of late
resolutions in writing signed or assented in writing by all registration of a deed with the Registrar General
members of the Board of the financial Services Commission. under section 3B, and any penalty payable under
The signature or assent may be provided in counterparts by Section 33, of the Registration Duty Act will not apply
facsimile, electronic mail or similar means of communication. where the delay falls within the COVID-19 period or
This amendment should in principle facilitate and expedite the
within the delay prescribed in the Sixth schedule of
decision-making process of the Financial Services Commission,
especially during any confinement period. This amendment is the Registration Duty Act as from the date falling
irrespective of the COVID-19 period. after the end of the COVID-19 period.
• Occupation permits, residence permits and other permits
issued under section 9 of the Immigration Act, which expire
during the COVID-19 period or during the next 21 days after the
COVID-19 period, shall remain valid for a further period of 30
days or such further period as may be prescribed.
16+(230) 5472 6897 / 5709 5141 info@5fifteenbarristers.com www.5fifteenbarristers.com +(230) 5499 3884 admin@bridges-llc.com
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