In the past year, several new legislative regulations and changes have been introduced in Maltese employment law, primarily aimed at improving the work-life balance of employees. These laws ensure transparent and predictable working conditions and better protection for digital platform delivery workers. In this article, we will explore these new regulations in more detail.
On 2 August 2022, the Work-Life Balance for Parents and Carers Regulations, Subsidiary Legislation 452.125 came into force and transposed the relevant provisions of EU Directive 2019/1158. These new regulations came into force at an opportune moment as companies have started adapting their business models to further promote work-life balance and the wellbeing of their workforce.
In virtue of this new regulation, the paternity leave entitlement has increased from one to ten working days, and each parent became entitled to four months of parental leave, which must be availed of until the child reaches eight years of age. Notably, whilst Maltese legislation previously imposed non-transferability of parental leave from one parent to another for four months, with the introduction of the Work-Life Balance Regulations, the non-transferability remains applicable only for the first two months.
The new regulation also introduced carer leave for those employees who need to provide personal care or support to a relative, or to a person who lives in the same household as the employee, and is in need of care and support for serious medical reasons. The carer leave entitlement consists of five unpaid days of leave per year.
Under these regulations, carers and employees with children up to eight years of age have the right to request flexible working arrangements from their employers for caring purposes. These flexible working arrangements may include remote work, reduced hours of work and flexi-time employment. Employers must consider and respond to such requests within two weeks and must provide reasons for any refusal or postponement of such arrangements.
Transparent and predictable working conditions
EU Directive 2019/1152 on Transparent and Predictable Working Conditions in the European Union has been transposed into Maltese law in virtue of the Transparent and Predictable Working Conditions Regulations, Subsidiary Legislation 452.126 and amendments to the Employment and Industrial Relations Act, Chapter 452 of the Laws of Malta.
The Transparent and Predictable Working Conditions Regulations build upon the list of information which employers were already bound to provide employees under the Information to Employees Regulations. In particular, these regulations outline specific information to be provided to employees who are outworkers as well as employees required to work outside of Malta for a period exceeding four weeks.
Furthermore, this Regulation also obliges the employer to keep an updated record for each worker, which must include a copy of the written contract, any changes made to the conditions of employment and other requirements outlined in the regulations. However, it is important to note that unless changes are made in the laws, regulations or collective agreements, the conditions of employment cannot be altered after the commencement date of the employment.
A significant change brought about by the introduction of this new regulation was the partial prohibition of zero-hour contracts. These types of contracts are only allowed in the following circumstances:
- Employees are full-time students;
- When the zero-hour contract is not the wholetime employment of the worker; or
- When the nature of the activity of the work to be carried out requires employees to be replaced within a short period.
Moreover, an employee has the right to take up parallel employment, provided it is outside the work schedule. Nevertheless, the employer may prohibit parallel employment due to issues of conflict of interest, the integrity of public service, health and safety concerns, and because of business confidentiality.
On 20 December 2022, a number of amendments were made to the Employment and Industrial Relations Act to incorporate further provisions of EU Directive 2019/1152. These amendments were made in relation to probationary periods of fixed term contracts and seek to ensure that the length of such probationary periods is proportionate to the expected duration and the nature of the employment contract.
The main change brought about by these amendments is the prohibition of fixed-term contracts for periods shorter than six months. The only exception to this rule is if a shorter period of employment may be justified by objective reasons based on precise and concrete circumstances characterising a given activity. It is mandatory for the employer to list these reasons in writing in the definite contract of employment. In these cases, the probationary period shall be one-third of the duration of the same fixed-term contract.
These amendments also clarify that for fixed-term contracts of a duration ranging between six and fifteen months, the probationary period shall be calculated on the basis of two-months probationary period for every six months contract duration. For a fixed-term contract exceeding fifteen months, the probationary period shall be six months.
Nonetheless, workers holding technical, executive, administrative or managerial positions whose wages are at least double the national minimum wage established that year shall be on probation for a period of twelve months.
Furthermore, the parties will still have the option to enter into an agreement for a shorter probationary period. In the case of the renewal of a contract for the same function and tasks, the employment relationship shall not be subject to a new probationary period.
Digital platform delivery workers
Over the span of a few years, the Maltese labour market witnessed a spike in digital labour platforms. The fact that such digital platforms remained mostly unregulated created numerous employment law issues and challenges – whereby it was evident that most employees in this sector were being treated unfairly, with no clear employment and social protection rights to resort to. To this end, the Digital Platform Delivery Wages Council Wage Regulation Order, Subsidiary Legislation 452.127 (the “Order”) came into force on 21 January 2023 to regulate platform workers.
Platform workers include any the following employees:
a. Any person performing digital platform work who has entered into any form of arrangement with any digital labour platform or multiple digital labour platforms under which he is engaged, whether on a regular or on an irregular basis, to provide services consisting of the delivery of any product.
b. Any person performing digital platform work who enters into any form of arrangement with a work agency and who is assigned to, or placed at the disposal of, whether on a regular or on an irregular basis, any digital labour platform or multiple digital labour platforms, to provide services consisting in the delivery of any product.
A fundamental concept introduced by S.L. 452.127 is the legal presumption of an employment relationship. In virtue of this Order, all persons performing digital platform work will be presumed to be in an employment relationship, and the digital labour platform for whom the platform work is carried out or, the work agency, as the case may be, shall be presumed to be the employer.
The recognition of such an employment relationship ensures that platform workers are protected by a number of safeguards. For instance, as a result of such an employment relationship, platform workers must be provided with a work contract within seven days from the commencement of their employment. Such contract must include the conditions of employment outlined in the Transparency and Predictable Working Conditions Regulation. In addition to the contract, the employer must provide certain information to the employee within the first day of employment. This includes information on the automated monitoring system, which is used to monitor the work performance of platform workers through electronic means, and on automated decision-making systems, which are used to take or support decisions that will significantly impact or affect platform workers’ working conditions.
By Av. Charlene Gauci
Mifsud and Mifsud Advocates
This article may also be accessed on Labour and Employment Law Expert Guide 2023
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.