1.1 What are the main sources of employment law?
The Employment and Industrial Relations Act (hereinafter referred to as the ‘EIRA’), Chapter 452 of the Laws of Malta, serves as the main source of Maltese employment law. The EIRA provides the basic legal framework, regulating the main conditions of employment in Malta. Specific areas of employment law are in turn regulated by various subsidiary legislations promulgated under the EIRA, as the latter transposed a number of different directives of the European Union. The EIRA is complemented by the Wage Regulation Orders, which determine the minimum entitlement of specific sectors including the specific leave entitlement applicable to each particular sector. Another important source of Maltese employment law is the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta. This Act established the Occupational Health and Safety Authority (‘OHSA’) to ensure that the physical, psychological and social well-being of all workers in all workplaces are promoted and safeguarded by whoever has such duty. Furthermore, the Employment and Training Services Act, Chapter 594 of the Laws of Malta, regulates employment and training services, including traineeships and the employment of third-country nationals. The National Employment Authority and Jobsplus are also established in virtue of this Act. Decisions of the Industrial Tribunal, the Court of Appeal and the European Court of Justice of the European Union also constitute an important source of Maltese employment law, despite the fact that Malta does not follow the doctrine of precedent.
1.2 What types of worker are protected by employment law? How are different types of worker distinguished?
Maltese employment law seeks to protect all types of employees, despite the various categories which an employee might be classified under. One may classify workers into two categories: employed; or self-employed. In virtue of Section 2 of the EIRA, a worker is classified as an employee if such worker has entered into or works under a contract of service or has undertaken personally to execute any work or service for, and under the immediate direction and control of another person, including an outworker. However, any work or service performed by a person in a professional capacity or in the capacity of a contractor for another person when such work or service is not regulated by a specific contract of service is excluded from the definition of an employee under the EIRA. This definition is complemented by the Employment Status National Standard Order (Subsidiary Legislation 452.108) which provides specific criteria on the basis of which one might determine whether they may in actual fact be classified as employed or self-employed. In fact, an employment relation is established if an employee satisfies at least five of the following criteria:
- s/he depends on one single person for whom the service is provided for at least 75% of his income over a period of one year;
- s/he depends on the person for whom the service is provided to determine what work is to be done and where and how the assigned work is to be carried out;
- s/he performs the work using equipment, tools or materials provided by the person for whom the service is provided;
- s/he is subject to a working time schedule or minimum work periods established by the person for whom the service is provided;
- s/he cannot sub-contract his work to other individuals to substitute himself when carrying out work;
- s/he is integrated in the structure of the production process, the work organisation or the company’s or other organisation’s hierarchy;
- the person’s activity is a core element in the organisation and pursuit of the objectives of the person for whom the service is provided; and
- s/he carries out similar tasks to existing employees, or, in the case when work is outsourced, he performs tasks similar to those formerly undertaken by employees.
Employees are then sorted into three categories: full-timers; whole-timers; or part-timers. Maltese employment law stipulates that part-timers shall not be treated less favourably than full-time or whole-time employees insofar as remuneration and benefits are concerned, as the latter would need to be calculated on a pro rata basis.
1.3 Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?
In terms of Maltese employment law, an employment contract may be concluded either verbally or in writing. However, if the period of employment exceeds one month and the employee’s working hours exceed eight hours per week, a verbal contract will not suffice and must be followed by a written contract of employment or a written statement of minimum conditions. In line with the Information to Employees Regulations, Subsidiary Legislation 452.83, the employer is obliged to provide the employee with such written contract of employment or written statement within eight working days from the commencement of employment.
The statement of minimum conditions must include information relating to the commencement date and duration of employment, probationary and notice periods, normal and overtime rates of wages, normal hours of work and information relating to paid holidays, vacation, sick or other leave to which the employee might be entitled, amongst others.
1.4 Are any terms implied into contracts of employment?
Should employment contracts remain silent in relation to certain minimum conditions of work or duties of both the employer and the employee, as outlined by Maltese law, then such minimum conditions will be deemed to be implied in the employment contract. Such terms might include the duration of probationary and notice periods or the safeguarding of health and safety at the place of work.
1.5 Are any minimum employment terms and conditions set down by law that employers have to observe?
The EIRA and the subsidiary legislations issued under it, set out the minimum employment terms and conditions which employers and employees must follow, irrespective of any agreement to the contrary. Employers in specific sectors of employment might also be obliged to observe more specific terms and conditions of employment as might be set out in the applicable Wage Regulations Orders. The Organisation of Working Time Regulations, Subsidiary Legislation 452.87 regulates the hours of work of employees, setting out the minimum daily rest, weekly rest, rest breaks and vacation leave with full pay, amongst others. The maximum hours of work and night work is also regulated in virtue of this legislation. The Minimum Special Leave Entitlement Regulations, Subsidiary Legislation 452.101 lays down the minimum leave entitlements for employees who are not regulated by any Wage Regulation Order, including sick leave, bereavement leave, birth leave, marriage leave, injury leave, jury leave and quarantine leave. Other minimum terms and conditions which employers would be legally obliged to observe would also include the payment of a national minimum wage and the granting of maternity leave, as well as national and public holidays to employees. The recent introduction of the Work-Life Balance for Parents and Carers Regulations, Subsidiary Legislation 452.125 also lays down the minimum requirements of paternity leave, parental leave and carers’ leave.
1.6 To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?
Despite several Wage Regulation Orders setting out the minimum pay and working conditions in specific sectors of employment, the EIRA still allows for terms and conditions of employment to be negotiated through collective bargaining, as long as such conditions of employment are in accordance with the provisions of any law in force in Malta. Collective bargaining in the private sector takes place predominately at company level, whereas in the public sector it is generally carried out at industry level. The terms and conditions concluded in terms of a collective agreement will be applicable to the employer and those employees forming part of the trade union negotiating on behalf of those same employees. However, employees not forming part of the trade union in question may also opt to be bound by the terms and conditions as set out in the collective agreement.
1.7 Can employers require employees to split their working time between home and the workplace on a hybrid basis and if so do they need to change employees’ terms and conditions of employment?
In the case of a new employment relationship, an employer may include the requirement of carrying out work on a hybrid basis as a condition of employment by including such requirement in the employment contract. However, in the case of an existing employment relationship which did not previously entail any form of remote working, this may only be done with the agreement of the employee in question. Such an employee remains free to accept or refuse an offer to work on a hybrid basis. If an existing employee is in agreement with carrying out work on a hybrid basis, then an additional written agreement must be entered into between the employer and the employee during the employment relationship to reflect the changes in the conditions of work. In the event that an employer requires an employee to work on a hybrid basis, then the conditions of employment relating to telework laid down in the contract of employment, or in an additional contract entered into between the employer and the employee, shall not be less favourable than the conditions laid down in the Telework National Standard Order, Subsidiary Legislation 452.104.
1.8 Do employees have a right to work remotely, either from home or elsewhere?
Employees bound by an employment contract, which does not make any reference to remote working, do not have any right to work remotely unless a request for remote working is approved by the employer. However, with the introduction of the Work-Life Balance for Parents and Carers Regulations, Subsidiary Legislation 452.125, employees with children up to the age of eight years, and carers, may request their employer to allow them to carry out work remotely for caring purposes. In this case, the employer is bound by law to consider and respond to such request within two weeks and must provide reasons for any refusal or postponement of such arrangements. Such a flexible arrangement may, however, be limited in duration and the employee shall always retain the right to request to return to the original working conditions where justified or due to changes in circumstances.
Av. Charlene Gauci
Mifsud & Mifsud Advocates
This article was first published in ICLG – Employment & Labour Law and may be accessed on the ICLG to Employment and Labour Law 2023 publication.
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.