White Paper by the Ministry of Employment, Entrepreneurship Development and Business Innovation |19 May 2017
New proposals to be included in the Employment Bill
The Employment Bill 2016, proposed to replace the Employment Act 1995, which governs the rights and obligations of workers and employers in Seychelles, was presented, along with a White Paper, in public consultations on both Mahé and Praslin in October 2016.
Following these consultations, there was a strong call to improve the proposed piece of legislation to bring it in line with Seychelles’ progressive economic development and to provide a more equitable distribution of rights and obligations to ease business operations as well as to enhance productivity.
The following are the new proposed amendments to the Employment Bill, as well as new amendments being proposed to the Conditions of Employment Regulations, 1991 (SI 34 of 1991).
NEW AMENDMENTS PROPOSED TO THE EMPLOYMENT BILL 016
Restriction on employment of non-Seychellois - Section 18
Rationale: Currently the minister has power to approve or not approve the recruitment of a non-Seychellois in a vacant post that exists in an organisation. However, there are circumstances where approval has been granted and the employers have breached certain provisions on the condition for approval, and thereby creates frustration and instability in the organisation.
Proposal: Where the minister is of the view that an employer or a worker is in breach of certain provisions on the condition for approval in respect of the post approved for the employment of non-Seychellois, the minister may revoke his decision.
Restrictions on employment of minors
Rationale: The Constitution establishes that the minimum age is 15 years and that the law may permit exceptions for light work. The law must provide a higher minimum age for work which is dangerous, unhealthy or likely to impair the normal development of a child or young person. The Constitution also states that the State undertakes to ensure special protection against social and economic exploitation and physical and moral dangers to which children and young persons are exposed.
However, the minimum age appears in the Regulations, but not in the Act, which is criticised by the
International Labour Organisation (ILO).
Proposals:
• Concerning light work, the proposal is to keep the current situation where children under 15 years cannot work at all (without reintroducing anything similar to the repealed sub-regulations (2) and (4) of Regulation 21 of the Conditions of Employment Regulations 1991).
• To remove the minimum age of 15 years from the regulations and move to the Employment Act in order to be in line with the Constitution and ILO standards.
• Amend Section 24 “Contracts by Minors” in order for a legal guardian to sign a contract of employment on behalf of the minor to provide additional safeguard to the minor about to enter employment.
• In regards to hazardous work, it is proposed that a provision is inserted in the Act to adapt the working age of children for work which the State regards as dangerous, unhealthy or likely to impair the normal development of a child or young person; exploitation and physical and moral dangers to which children and young persons are exposed.
Thirteenth month pay – Section 46
Rationale: The current section 46 C (4) (c) establishes the following: “This entitlement shall be independent from any bonus paid under an employer's scheme or any other payments made by the employer provided however that where the employer who is contractually obligated to pay a bonus as per the contract of employment and if the amount of bonus is higher than the thirteenth month pay, the employer may deduct the thirteenth month pay from the bonus, and the balance amount shall be paid to the employee.
Proposals: To amend section 46 C (4) (c) as follows:
“Where an employer pay an end of year bonus which is equivalent or more than the thirteenth month pay, the bonus shall be converted into the thirteenth month pay and the employer shall pay the worker the balance as bonus if the bonus is more than the thirteenth month pay.
Where the bonus is less than the thirteenth month pay, the bonus shall be converted into a thirteenth month pay and the employer shall pay the difference to the equivalent of the workers’ basic salary.”
Redundancy of workers - Section 63 (1)
Rationale: Section 63 of the Employment Act deals with the issue of redundancy and its accompanying procedures. The said procedures are as follows;
• Employer notifies the Chief Executive 21 days before the employer intends to give Notice of Redundancy to a worker specifying certain particulars.
• The Competent Officer registers the notification, holds consultations and makes a determination within the said period of 21 days. The employer gives notice to the worker after 72 hours have elapsed from the date of the determination.
• The worker or employer, whichever the case may be, may appeal within 7 days against the determination of the Competent officer to the Minister.
• The Minister has to give his decision within 30 days.
• The worker or the employer may seek Judicial Review of the Minister’s decision if any of them is aggrieved.
The World Bank and International Monetary Fund is of the opinion that Seychelles should review its hiring and redundancy procedures to provide for more flexibility in business and also allow the employers and employees to negotiate and agree on conditions when there is a need for redundancy. The Business community feels that their hands are tied up due to lengthy procedures when they want to restructure their business to make it more profitable.
Proposals:
In order for Seychelles to be more progressive and respond to the modern business environment, it is proposed that where an employer ceases the operation of his business, the employer shall not be required to initiate and comply with the negotiation procedures.
The new proposal will allow employer to negotiate with employees through the workers’ organisation and agree on the conditions of the proposed termination subject to satisfying payment of all mandatory benefits. Only notification of the Redundancy, proof of agreement and payment of benefits which should be submitted to the Ministry.
Worker(s) who feels aggrieved by the redundancy may lodge a case against the employer to the Employment Department for mediation within 14 days after notice of termination has been served on the worker(s). If there is no settlement a certificate shall be issued and the case may be brought before the Employment Tribunal for unjustified dismissal. However, a worker who has agreed to accept redundancy, should not have the right to do so, unless there is a dispute of quantum in the calculation of terminal benefits.
However where an employer wishes to make redundant five (5) or more workers for any other reasons, the employer shall be required to initiate and comply with the negotiation procedure for redundancy.
Retirement - Section 66
Rationale: When a worker is about to reach retirement age, an employer shall seek permission of the Employment Department to retain the person in employment above retirement age.
Proposals:
To amend section 65 to allow a worker to work above retirement age but up to 65 years without having to seek the Ministry’s approval. However, where an employer wishes to employ a worker over 65 years, the employer shall first seek the approval from the Ministry.
Severance pay - Section 70
Rationale: Presently, where a worker under a contract for an indefinite period resigns on completion of not less than 5 years of service with the employer, the employer shall pay severance pay to the worker, in addition to the wages and other benefits earned, at the rate of five sixths of one day’s wage for each completed month of service calculated on the basis of the last wage.
Proposals:
To increase the qualifying period of severance pay corresponding to resignation from 5 years to 10 years as per the following;
5 years (Nil)
10 years (⅚ of 1 day’s wage for each completed month of service)
More than 10 years (1 day’s wage for each completed month of service).
CONDITIONS OF EMPLOYMENT REGULATIONS
Regulation 9 – Annual leave
Rationale: A worker, other than a casual worker or part-time worker, is entitled to 21 days’ paid leave.
Proposals: To amend this provision to increase annual leave from 21 days to 23 days.
Regulation 12 – Sick leave
Rationale: Currently workers are entitled to 30 days paid sick leave followed by another 30 days paid if confined. It is noted from discussions with concerned parties, notably employers, that workers abuse of the sick leave provision and consequently impacts on productivity of organisations. Based on statistics from the ASP, the reimbursements claims are also a huge expense for government amounting to around R9 million in 2014.
Proposals:
• The sick leave entitlement in the Employment Act is reduced from 30 days to 15 days.
• A worker who is confined at the hospital or similar institution or at home for a continuous period which extends beyond the unexhausted part of the first period of paid sick leave, is entitled to a further maximum 15 days (reduced from 30 days)’ paid sick leave during that continuous period.
• Where a worker’s child under 12 years of age is medically certified sick and a medical practitioner or official authorised by the Minister of Health recommends that the worker attends the child, the worker is entitled to 7 days independent of the worker’s own sick leave entitlement.
Prohibited employment of young persons
Rationale: For some years now ILO committee of experts have commented on the shortcomings of our legislation with regards to protection of young people in employment and against worst forms of child labour. To align our legislation with the Minimum Age and Worst forms of Child Labour Conventions in order to take care of the shortcomings, the provisions under section 22 (1) must take into consideration if the nature of work or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.
Proposal:
• To amend section 22 (1) to include the following provisions;
(i) The worst forms of child labour shall be prohibited.
(ii) For the purposes of child labour, the term child shall apply to all persons under the age of 18.
(iii) For the purposes of this provision, the term the worst forms of child labour shall comprise:
(a) All forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour, including forced or compulsory recruitment of children for use in armed conflict;
(b) The use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances;
(c) The use, procuring or offering of a child for illicit activities, in particular for the production and trafficking of drugs as defined in the relevant international treaties;
(d) Work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children.
(e) It shall be an offence for any person to permit a child to undertake such labour. The penalty for committing such an offence shall be a fine not more than R50,000.
• The minimum age for admission to any of the following types of employment or work, which by their nature or the circumstances in which they are carried out are likely to jeopardise the health, safety or morals of young persons, shall not be less than 18 years:
a) In a hotel, guesthouse, boarding house, any place where tourists are accommodated, restaurant, shop, bar, nightclub, dance hall, discotheque or similar places of entertainment or on a ship or aircraft.
b) Handling of or exposure to any harmful chemicals, including cleaning equipment, decontamination, disposal or return of empty receptacles; work where there is a risk of contact with organic or non-organic solvents, hydrocarbon fuels, acids or other products derived from mineral oil.
c) Use of heavy industrial, agricultural or fisheries tools either causing the worker to work in awkward postures or liable to cause major perforation, cuts or crush injuries,
d) Building demolition and removal of debris
e) Work which entails carrying a load more than 15% of his/her body weight, or awkward lifting, or pushing of any weight.
f) Lubrication, cleaning, controlling and repair of moving machinery.
g) Handling animal waste without proper training, supervision and use of appropriate protective gears.
h) Handling sewage
i) Working in landfills and in garbage trucks
j) Work performed in a cold store in the preservation of food by freezing.
k) Preventing work involving risk to health from extreme heat of above 27 degrees centigrade.
l) Any underwater work
m) Work involving animal birth, slaughter, artificial insemination, handling of a decomposing carcass and exposure and handling of animal body fluids
n) Work involving risks to health from prolonged exposure to wet condition, sustained over one hour
o) Working in confined spaces
p) Working with excessive/continuous exposure to noise levels exceeding 90 decibels, vibrations, dust and fumes
q) Working above 1.5m
r) Dock work, stevedoring
s) Transportation and handling of dangerous goods and packages
t) Working on outer islands
u) Taking care of patients/clients in medical establishments and any medical research involving direct contact with biological matters
v) Linesmen
w) Working in trenches deeper than 1m
x) Petrol station attendant.
•To amend section 22 (4) to provide for the competent officer to authorise employment or work as from the age of 16 years instead of 15 years on condition that the health, safety and morals of the young persons concerned are fully protected and that the young persons have received adequate specific instruction or vocational training in the relevant branch of activity.
Regulation 48 (A) – Interest on compensation
Rationale: The Act makes provision for interest to be imposed on employer for failing to pay compensation. The rate was to be prescribed by the Central Bank but has never been done making the provision inapplicable.
Proposals:
To amend section 48 (A) as follows:
“The rate of interest for the purpose of compensation shall be prescribed by the Minister”.
CONCLUSION
The new proposals as part of the Employment Act review strengthen the government’s commitment to creating decent work in Seychelles and its strategies to address emerging employment challenges. The proposed Act shall present provisions that facilitate business operations while creating favourable working conditions.
Contributed by the Ministry of Employment, Entrepreneurship Development and Business Innovation