The Finance (Miscellaneous Provisions) Bill has now been circulated and captures the measures from the Mauritian National Budget which have been adopted by the National Assembly.
As announced in our E-Alert on 6 June 2023, the Minister of Finance, Economic Planning and Development (Minister of Finance) had previously tabled the Mauritian National Budget for the fiscal year 2023-2024 under the theme “To Dare & to Care” on 02 June 2023.
For the contents of the Bill, please use the drop downs below.
COMPANIES ACT
- a public listed company must reckon a minimum of 25% of women forming part of its board of directors;
- where the last remaining director of a company has either resigned or has passed away, shareholders must hold a meeting within one month of the resignation date or the date of the passing away of the last remaining director, as applicable. Otherwise, the Registrar of Companies has discretion to remove the company from her register of companies; and
- the financial statements for the most recent accounting period as well as the auditors’ report on these financial statements must now be sent to each shareholder of the company at least 21 days prior to the date of the annual meeting of the shareholders – these financial statements must be in a form approved by the Registrar of Companies and it is open to a shareholder to request a printed copy of these statements within a reasonable time.
FINANCIAL SERVICES ACT
- licensees must submit an independent compliance report on terms and conditions set by the Financial Services Commission;
- the Financial Services Commission is now empowered to determine the form and manner in which documents that must be filed and submitted are to done; and
- the recovery by the Financial Services Commission of outstanding annual fees and charges that arise under the Financial Services Act will not be barred by limitation provisions of the laws of any jurisdiction.
NON-CITIZENS (EMPLOYMENT RESTRICTION) ACT
- as from 01 October 2023, applications for work permits must now be submitted to the National Electronic Licensing System (NELS);
- An application shall be deemed to have been granted where it has not been determined within a period of 30 working days from the date on which the application is complete, as defined under the legislation.
NON-CITIZENS (PROPERTY RESTRICTION) ACT
- The concept of Smart City scheme will henceforth be known either as the ‘Smart City or Sustainable City Scheme’;
- The circumstances in which a certificate will not be required from a non-citizen who wishes to hold, dispose of, or purchase or otherwise acquire a property have been refined as follows namely:
(a) a non-citizen who is resident under the Immigration Act and who purchases or otherwise acquires residential property not caught by section 3A of the Non-Citizens (Property Restriction) Act. This condition will apply provided that the following conditions apply:
– the status of residency of the non-citizen was not acquired by reason of being the spouse, dependent, child or other dependent of the holder of a permit under the Immigration Act;
– only one property is being purchased or otherwise acquired by the non-citizen;
– the purchase price is not less than USD 500,000 or its equivalent in any hard convertible currency or in such other amount as may be prescribed; and
– any additional duty which is levied under Part IIA of the Registration Duty Act is paid.
(b) The range of property to which the Non-Citizens (Property Restriction) Act does not apply has been expanded as follows:
– property being residential care home under the Residential Care Homes Act or a residential unit or similar unit situated outside a smart city under the Investment Promotion (Smart City Scheme) Regulations;
– a luxury villa, apartment, penthouse or other similar properties used, or available for use, as residence with or without attending services or amenities from a company holding a certificate under the Invest Hotel Scheme, Property Development Scheme or Smart City Scheme, prescribed under the Economic Development Board Act;
– an apartment used, or available for use, as residence, in a building of at least 2 floors above ground floor, for which the purchase price is not less than 6 million rupees or its equivalent in any other hard convertible foreign currency, or in such other amount as may be prescribed, on production of an authorisation from the Economic Development Board granted after it has obtained the approval of the Minister;
– a plot of service land for the construction of a residence from a company holding a certificate under the Smart City Scheme or Property Development Scheme prescribed under the Economic Development Board Act 2017;
– residential property acquired from a company holding what was formerly known as an IRS certificate or a RES certificate.
– property situated on State land including the Pas Geometriques;
– a bare land or serviced land which exceeds 0.5276 hectare (i.e. 1.25 arpent); and
– a standalone residential property constructed on an extent of land exceeding 0.5276 hectare (i.e. 1.25 arpent).
SECURITIES ACT
The definition of the terms “closed end fund” and “collective investment scheme” have been extended as follows:
- closed end fund now accommodates the concept of ‘money market instruments’ and now means the following:
“closed-end fund” means an arrangement or a scheme, other than a collective investment scheme, constituted in such legal form as may be approved by the Financial Services Commission and whose object is to invest funds, collected from subscribers during an offering made under Part V of this Act or from sophisticated investors, in a portfolio of securities money market instruments including loans, debt obligations or similar instruments, or in other financial or non-financial assets, or real property, as may be approved by the Commission;
- collective investment scheme means:
(a) means a scheme constituted as a company, a trust, or any other legal entity prescribed or approved by the Commission –
(i) whose sole purpose is the collective investment of funds in a portfolio of securities, money market instruments or debt instruments including loans, debt obligations or similar instruments, or other financial assets, real property or non-financial assets as may be approved by the Financial Services Commission;
(ii) whose operation is based on the principle of diversification of risk;
(iii) that has the obligation, on request of the holder of the securities, to redeem them at their net assets value, less commission or fees; and
(iv) where the participants do not have day to day control over the management of the property, whether or not they have the right to be consulted or to give directions in respect of such management; and
(b) includes closed-end funds whose shares or units are listed on a securities exchange; but
(c) excludes schemes specified at Part II of the First Schedule.
VARIABLE CAPITAL COMPANIES ACT
- one of the matters which the constitution of a VCC company must confirm is the below:
(a) the primary object of the company is to operate as a VCC Fund;
(b) a family office through a special purpose vehicle; or
(c) such other activity as may be specified by the Rules of the Financial Services Commission
- in order that a company operates as a variable capital company, it must be authorised by the Financial Services Commission to operate:
(a) a VCC Fund;
(b) a family office through a special purpose vehicle; or
(c) such other activity as the Rules of the Financial Services Commission may prescribe.
- The scope of a special purpose vehicle is to operate as one of the following:
(a) as a vehicle ancillary to the variable capital company or a sub-fund of the variable capital company;
(b) family office activities; or
(c) as such other activities as the Rules of the Financial Services Commission may prescribe.
- The powers of the Financial Services Commission to issue Rules under the VCC Act is confirmed by introducing a new clause namely section 27A which empowers the Financial Services Commission to issue Rules which it deems necessary to give effect to the VCC Act.
The scope of the FSC Rules is as follows:
(a) provide the criteria, requirements and obligations which apply to a variable capital company, sub-fund or special purpose vehicle; and
(b) the taking of fees and the imposition of charges.
VIRTUAL ASSET AND INITIAL TOKEN OFFERING SERVICES ACT
- the custodian of a virtual asset is authorised to hold securities tokens or such other instruments approved by the Financial Services Commission despite contrary provisions in VAITOS Act; and
- a person who has been licensed by the Financial Services Commission as a custodian in respect of digital assets shall be deemed to be licensed as a Class R Virtual Asset Custodian as from 06 August 2023 on the terms and conditions laid down by the Financial Services Commission.
WORKERS’ RIGHTS ACT
PART-TIME WORKER REDEFINED
The definition of ‘part-time worker’ has been reviewed and now means “a worker whose normal hours of work are less than the stipulated hours’.
The amendment introduces flexibility regarding the number of working hours to be performed by a worker. Thus, it is possible for an employer to request a worker to work for the stipulated hours in on 4-day week basis in respect of any working week. However, the pre-condition is that the worker must consent and the employer must provide 48-hours’ notice to the worker.
Conversely, a worker may request his employer to work for the stipulated hours on a 4 days’ week basis. As a general rule, the employer is under an obligation to grant the request subject however to the operational requirements of the employer.
COMPUTATION OF OVERTIME FOR WORKER ON A 4-WEEK BASIS
The formula for computing overtime has been revised in respect of workers who work on a 4-day week basis and it varies depending on whether the overtime relates to a public holiday or not.
For a public holiday, the formula is as follows:
(a) first 8 hours, twice the basic rate; and
(b) every subsequent hour, 3 times the basic rate
For a day not being a public holiday, the applicable formula is 1.5 times the basic rate for every additional hour of work. The formula applies where the worker has performed more than 45 hours on normal working days and this captures days on which the worker has taken authorised leave, whether paid or unpaid, injury leave, shall be deemed to constitute attendance at work.
1.5 times the basic rate for every additional hour of work.
FLEXITIME
An employer may employ a worker to work part-time and on flexitime basis for the number of hours agreed by them. However, this remains subject to the provisions of section 28 of the Workers’ Rights Act which distinguishes the situation where the basic wage or salary being prescribed by legislation of a collective agreement.
Thus, where the basic wage or salary is not prescribed, the part-time worker must be paid at a rate being (i) not less than what is calculated proportionately on the notional hourly rate of a comparable full-time worker and (ii) increased by not less than 5%.
However, where the basic wage or salary is prescribed by legislation or a collective agreement, the salary or wage of the part-time worker is calculated (i) proportionately on the notional hourly rate and (ii) increased by not less than 5%. The exception to the rule is when (a) the legislation overrides the collective agreement for the category or grade for which the part-time worker is employed depending on which rate is the higher.
COMPUTATION OF NOTIONAL HOURLY RATE
- Formula 1
This formula applies for a full-time worker:
M/195
M = prescribed monthly wage or the monthly agreed wage
- Formula 2
This formula applies for a part-time worker:
(M x 12)/ (52 x D x N)
D = the number of working days per week
M = the agreed monthly wage
N = the number of working hours per day
However, Formula 1 will not apply where the monthly wages are prescribed.
LEAVE TO CARE FOR CHILD, PARENTS AND GRANDPARENTS WITH HEALTH-CARE RELATED ISSUES
Henceforth, a worker is entitled to paid leave against any of his paid leaves under the Workers’ Rights Act (i.e. annual leave, additional 2 days’ leave, sick leave, vacation leave) in order to look after his child (including adopted child), parents or grandparents with healthcare related issues.
The conditions for an employer to grant leave in the circumstances are (i) notification to the employer as from the first day of leave and (ii) production of such relevant documents as the employer may require over and above the applicable ones i.e. birth certificate of worker and child and/or grandparent, marriage certificate of spouse.
However, a medical certificate will be required to confirm that the child or grandparent or parent has healthcare-related issues where the worker is absent for 3 consecutive working days.
LEAVE TO ATTEND INTERNATIONAL SPORT OR CULTURAL EVENTS
The scope of section 50 of the Workers’ Rights Act has been extended to capture cultural events in respect of which a worker has been selected to attend to represent Mauritius over and above international sport events.
Once, the worker has given advance notice and the supporting documents regarding the duration of his absence from work, the employer shall grant paid leave to the worker for the duration of the event or such longer period as may be required.
ORAL HEARINGS
An employer must now make available to a worker who is due to appear at an oral hearing such information or documents which are relevant to the charge which the employer intends to produce in evidence in the course of hearing.
Any such documents or information must be made available.
The process for terminating a worker’s employment is being amended.
Henceforth, an employer must terminate a worker’s employment not later than 7 days after the worker has answered charges made against him whether (i) in writing (ii) in an oral hearing or (iii) in an oral hearing following his written explanations as the case may be.
