Employment and Industrial Relatations Act in Malta

1. By
Dr Mark Camilleri PhD (Edin.) MBA

2. The student will be able to:
Describe the purpose of employment legislation and
distinguish between employees and self employed.
Identifythe legal basis of the contract of employment
and give examples of the main duties on the parties to
such a contract.
Explain the concept of equal wage of equal value.
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3.  Workers can be categorised as:
◦ Employed (working under a contract of service).
◦ Self-Employed (working under a contract to provide
services).
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4.  Deduction and rates of taxation;
 Entitlement to sick / holiday pay;
 Rights upon dismissal;
 Liability for negligence;
 Provision of equipment.
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5.  Integration Test – Is the individual fully integrated
into the employers’ business?
 Economic Reality Test – Who bears the risk of
loss and chance of profit?
 Multiple Test – This considers a number of factors:
◦ Method of remuneration ; Method of selection and
termination, Organisation of work; Provision of tools and
Deduction of tax and national insurance.
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6. When there are no formalities involved in forming the
contract of employment;
The Information to Employees Regulations, 2002
issued under the Employment and
Industrial Relations Act (EIRA 02) is
applicable.
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7. a) When there is NO written contract of employment which has
been signed between the employer and employee; or
b) Where the contract does not cover all or some of the
information required to be notified to the employee by these
regulations.
The employer is bound to provide the employee within
eight (8) working days from the date of employment,
with a letter of engagement or a signed statement
outlining the main terms of employment.
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8. 1. Regulations issued under EIRA 02
2. National Standard Orders
3. Collective Agreements
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9.  Contract of Service for Fixed Term Regulations, 2007.
 Minimum Special Leave Entitlement Regulations, 2007.
 Employee (Information and Consultation) Regulations, 2006.
 Equal Treatment in Employment Regulations, 2004.
 Organisation of Working Time Regulations, 2003.
 Young Persons (Employment) Regulations, 2003.
 Protection of Maternity (Employment) Regulations, 2003.
 Parental Leave Entitlement Regulations, 2003.
 Urgent Family Leave Regulations, 2003.
 Information to Employees Regulations, 2002.
 Part-Time Employees Regulations, 2002.
 Posting of Workers in Malta Regulations, 2002.
 Transfer of Business (Protection of Employment) Regulations, 2002.
 Collective Redundancies (Protection of Employment) Regulations,
2002.
 Guarantee Fund Regulations, 2002.
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10. 2) National Standard Orders
◦ Issued by the respective Minister of Employment; These
orders regulate the conditions of employment of
employees in general.
3) Collective Agreements
◦ Applicable for the category to which an employee
belongs.
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11.  The first 6 months of employment is considered to
be probationary employment.
 This period is increased to 1 year period of
probation in the case of technical, executive or
managerial posts.
 Either party to a contract of employment may end
the contract without giving any reason.
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12.  The employee is entitled to receive the minimum
wage.
◦ Wages are paid in full and in legal tender in Malta;
◦ Wages are to be paid to the employee personally;
◦ Wages are to be paid at regular intervals and on working
days;
◦ Wages should not be paid subject to any conditions;
◦ Wages are to be paid without any deductions;
◦ Wages may not be attached;
◦ Wages due to employees are a privileged debt.
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13.  Principle of equal remuneration for work of equal
value.
◦ Entails the elimination of all discrimination.
◦ Jobs which are the same, should have the same pay;
irrespective who performs them.
◦ Discrepancies in pay can only be justified if they are a
result of objective factors such as qualification, experience
et cetera.
The term pay covers all benefits afforded by
the employer to the employee in connection
to employment (Pay also includes overtime,
holidays and all components of the pay
pack.
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14.  Victimisation means treating somebody less favourably
than others because they tried to make a discrimination
complaint.
 Harassment means offensive or intimidating behaviour
such as sexist language or racial abuse which aims to
humiliate, undermine or injure the person to whom it is
addressed.
 Discrimination happens when an employer treats one
employee less favourably than others.
◦ Discrimination may be on the grounds of gender, marital status,
pregnancy, sex, disability, race, colour, ethnic background,
nationality, religion or belief.
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15.  This refers to information which must be given to
employees on commencement of employment except
to:
◦ Employees who are employed for less than a month.
◦ Employees who are engaged for less than eight hours a
week.
◦ Employees employed to perform a specific defined task
period that the non-application is justified by objective
consideration.
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16.  The employer is bound to provide the employee within
eight working days from the date of employment, with a
letter of engagement or a signed statement
outlining the main terms of employment.
 The employer shall provide the employee with a signed
statement showing:
◦ The name and details of the employer,
◦ The rate to be paid,
◦ Any special conditions regulating the contract.
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17.  Collective redundancies means the termination of employment
by an employer on the grounds of redundancy, over a period of
30 days.
 An employer proposing to declare a collective redundancy must
notify the employee representatives in writing of the termination
of employment.
 Such representative must be provided with the opportunity to
consult with the employer.
 Such consultations must begin within seven working days from
the day on which the employee representatives have been
notified of intended collective redundancies.
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18.  Within the 7 day period, the employer must supply the
employees’ representative with a written statement giving
all relevant information including:
◦ The reasons of redundancy;
◦ The number of employees he intends to make redundant;
◦ The number of employees normally employed by him;
◦ The criteria proposed for the selection of the employees to be
made redundant;
◦ Details regarding any redundancy payments which are due;
◦ The period over which redundancies are to be effected.
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19.  These regulations provide that employees on a contract of
service for a fixed term shall not be treated in a less favourable
manner than comparable permanent employees.
 The regulation also oblige the employer to give fixed term
employees facilitated access to appropriate training opportunities
to enhance their skill, career development and occupational
mobility.
 When a fixed term contract extends beyond four years,
this starts to be considered as a contract of
employment for indefinite duration from the date on which
the contract for a period of more than four years was entered
into.
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20. These regulations apply to all employees whose normal
hours of work (calculated on a weekly basis or on
average over a period of employment of up to one year)
are less than the normal working hours.
Provide for the removal of discrimination against part
time workers and seek to improve the quality of part-time
work.
Facilitate the development of part-time work and
contribute to the flexible organisation of working time
taking into account the need of employees.
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21.  These regulations oblige employers to ensure that part-time
employees are not treated less favourably than full time
employees.
 These regulations specify about the leave benefits:
◦ Pro-rata leave entitlement to part-timers (principal
employment)
◦ The minimum entitlement of all public holidays, annual vacation, sick
or injury leave, birth, bereavement, marriage leave
◦ Entitlements to statutory bonuses and other income supplements
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22. Any alleged breach of the Part-Time Employees
Regulation is to be determined by the Industrial
Tribunal following the filing of a complaint by the
employee, within four months from the date
when the less favourable treatment or the alleged
unfair dismissal arose.
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23.  These regulations establish a general framework
setting out minimum requirements for the right to
information and consultation of employees in
undertakings.
 The employer shall ensure that information and
consultation of employees shall be carried out:
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24. The employer must provide the information and
consultation representatives with information on:
a)Therecent and probable development of the
undertaking’s activities and economic situation.
b)Thesituation, structure and probable development of
employment within the undertaking.
c)Information and consultation on decisions likely to lead to
substantial changes in work organisation or in contractual
relations.
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25.  This regulation applies to employees who are
pregnant, those who recently gave birth or who
are breastfeeding.
 In such cases, the employee is entitled to
maternity leave or special maternity leave. The
employer must take measures to protect the
employees’ health and safety.
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26.  Measures include:
◦ Temporary adjustment of the working environment or
hours of work and
◦ The assignment to suitable alternative work (where such
temporary readjustment is not possible, the employee is
entitled to take special maternity leave)
◦ Eight weeks of such special maternity leave shall be on
full pay.
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27.  Maternity leave is established at 14 weeks (at
least 4 weeks of which must be availed of before
confinement) and at least 6 weeks of which must be
availed of after confinement.
 A pregnant employee may attend antenatal visits
during working hours without loss of pay, if these have
to take place during working hours.
 An employer cannot dismiss a pregnant employee, an
employee who has recently given birth or a breast
feeding employee until the end of her maternity leave.
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28.  All employees are entitled to time off from work on grounds of
force majeure for urgent family reasons in cases of sickness or
accident making the immediate presence of the employee with
his or her family indispensable.
 An employer is bound to grant every employee a
minimum of 15 hours leave with pay per year, for
urgent family reasons , provided that the total number of
hours availed of shall be deducted from the employee’s annual
leave.
 The employer has the right to ask for evidence to verify and
confirm the request for urgent leave.
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29.  These regulations lay down minimum requirements designed to
facilitate the reconciliation of parental and professional responsibilities
for working parents.
 These regulations grant male and female employees who are parents,
the individual right to apply for and be granted unpaid parental leave on
the grounds of birth, adoption or legal custody of a child.
 The period of leave may be availed of for a period of up to
three months (until the child is eight years old).
 This leave may be availed of in respect of every child born to, adopted
by or under the legal custody of the employee.
 An employee remains entitled to any parental leave not availed of even
if there is a change in the employer or the employment of the employee.
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30.  The minimum requirements for the organisation of
working time. There regulations apply to:
◦ Maximum periods of daily rest, weekly rest, annual leave
and to breaks.
◦ Maximum weekly working time.
◦ Certain aspects of night work, shift work and patterns of
work.
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31.  These regulations lay down the minimum
entitlements to sick leave, birth leave, bereavement
leave, marriage leave, injury leave and leave for jury
service.
 These regulations apply to whole time employees.
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32.  These regulations:
◦Apply to employees’ claims for unpaid wages arising out
of contracts of service and existing against employers who
are in state of insolvency.
◦Set a Guarantee Fund which is used to guarantee
payment of employees’ outstanding claims for wages.
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33.  An employee must register a claim on the Fund by not later
than one month after the onset of the insolvency of the
employer.
 An employee must provide certified evidence that he is
registered a valid claim for the unpaid wages in the
insolvency proceedings of the employer.
 The maximum amount paid of the Fund for every individual
claim shall be limited to the basic wage for the relevant
unpaid period.
 The claim registered by every individual employee shall be
limited to the unpaid amounts due for unpaid wages.
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34.  These regulations put in place the principle of equal
treatment in relation to employment by laying down
minimum requirements against discriminatory
treatment on the grounds of religion, disability, age,
sex and racial or ethnic origin.
 The regulations grant to any person who claims to
have been subject to discriminatory treatment,
whether direct or indirect, in relation to his
employment, the right to , within 4 months of the
alleged breach to refer the matter to the Industrial
Tribunal.
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35.  These regulations apply to all persons in relation to:
◦ Conditions for access to employment.
◦ Access to all types and levels of vocational guidance, training
and retraining.
◦ Employment and conditions of employment including
remuneration and dismissals.
◦ Memberships of and involvement in any organisation of
employees and employers, or any organisation whose
members carry on a particular profession.

36.  Prohibits work by children.
 Establish that the minimum employment age shall not be
lower than the minimum age at which compulsory full time
schooling ends.
 Regulate work by adolescents and persons under 18 years
of age.
 Ensures that employers guarantee that persons under 18
years of age have working conditions which suit their age
and are protected against economic exploitation.
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37.  A fixed contract or a contract of definite duration may be terminated:
◦ Upon the expiry of the fixed term;
◦ By either party during probation;
◦ By either party for any reason. The penalty stipulated by law must be paid by the
party terminating the contract;
◦ By either party for good and sufficient cause.
 A contract for indefinite duration may be terminated:
◦ By the employee for any reason;
◦ By the employer on the grounds of redundancy;
◦ By either party for ‘good and sufficient cause’.
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38.  1 week if an employee has been in continuous employment between 1-6
months.
 2 weeks if an employee has been in continuous employment between 6
months to 2 years.
 4 weeks if an employee has been in continuous employment between 2 to 4
years.
 8 weeks if an employee has been in continuous employment between 4 to 7
years.
 An additional week for every subsequent year of service up to a maximum of
12 weeks.
 In case of technical, administrative, executive or managerial posts, the
employer and employee may agree that longer periods may apply.
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39.  Unfair dismissal is a statutory claim made by
qualified employees: Any employee who is not in
probationary employment has the right not to be
unfairly dismissed.
 A dismissed employee must bring a claim
to the Industrial Tribunal within 4 months
of dismissal. A this hearing the employer must
prove that the reason for dismissal was either for
good and sufficient cause or for redundancy.
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40.  Redundancy is a fair reason for dismissal. It happens
where:
 The employer has ceased, or intends to cease, to carry on in
business for the purposes of which the employee was employed.
 The requirements of that type of business for employees to carry
out work of a particular kind, in a particular place have ceased or
are expected to diminish.
 When an employer terminates employment on the grounds of
redundancy, he must observe the “last-in first-out” rule.
 An employee whose employment is terminated on grounds of
redundancy is entitled to reemployment if the post is available
again within a period of one year from the date of termination of
employment.
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41.  An unfair dismissal is a statutory claim brought before the
Industrial Tribunal. A decision of the Industrial Tribunal may be
appealed on points of law only to the Court of Appeal.
 The Tribunal has the power to award the following types of
remedies:
◦ Re-instatement (being restored to your old position)
◦ Re-engagement (being re-engaged in a different, but comparable
position)
◦ Compensation (The Tribunal may consider: real damages and losses
incurred by the employee who was dismissed; other circumstances
include the employees age and skill which affect the employees’
employment potential)
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42.  Workers can be classified as either employed or self-employed.
 The employment contract must be evidenced in writing upon employment with
additional terms implied by regulations, national standard orders and any
applicable collective agreement.
 A contract of employment is subject to a period of probation and it grants the
employee a number of rights to receive wages in full.
 Workers are entitled to receive an equal wage of equal value.
 Workers are protected for victimisation and harassment.
 A number of regulations protecting the interest of employees have been
enacted under EIRA 02.
 Contracts of employment for definite periods and for indefinite duration may be
terminated for a number of reasons.
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43.  The students acquired sufficient knowledge about
employment contracts, including statutory
requirements.
 The students learned about equality and diversity
issues in the Maltese workplace.
 This lecture explained the relevant codes of
practice in the public service and in private
organisational contexts.
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Disclaimer
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extent permitted by law) or responsibility for the accuracy or
completeness of any information contained on this site.
The author reserves the right to revise this presentation or
withdraw access to part of or all of it at any time.
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