The Posting of Workers in Malta Regulations (Subsidiary Legislation 452.82) aims to guarantee an appropriate level of protection of the rights of posted workers for the cross-border provision of services and establish a set of appropriate provisions, measures and control mechanisms necessary for better and more uniform implementation, including measures to prevent and sanction any abuse and circumvention of the applicable rules.
These regulations were transposed into Maltese law through legal notice 223 of 2016 and amended by legal notice 262 of 2020 to give effect to the relevant provisions of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services as amended by Directive(EU) 2018/957 of the European Parliament and of the Council of 28 June 2018, and the provisions of Directive 2014/67/EU of the European Parliament and of the Council of 15 May 2014 on the enforcement of Directive 96/71/EC concerning the posting of workers in the framework of the provision of services and amending Regulation (EU) No 1024/2012 on administrative cooperation through the Internal Market Information System.
Posted worker means a worker who for a limited period carries out his work in the territory of a EU Member State other than the State in which he normally works, with the Department of Industrial and Employment Relations (DIER) being the competent authority in Malta and with the sending party meaning a service provider which is established in a different Member State other than Malta.
These regulations shall apply to the extent that the sending parties send posted workers in Malta on their account or under their direction, to an establishment or to an undertaking owned by the sending party in Malta, or being temporary employment undertakings or hiring agencies provided that there is an employment relationship between the sending party, temporary employment undertakings or hiring agencies and the worker during the period of posting. These regulations do not apply to personnel employed on vessels which fall under the provisions of the Merchant Shipping Act.
For the identification of a genuine posting and for the prevention of abuse and circumvention, the DIER has the authority to make an overall assessment of all factual elements characterising those activities, which assist it in carrying out checks and controls as provided for under Article 4 of the Regulations.
Equality of Treatment
The Posting of Workers in Malta Regulations provides for equality of treatment for the workers, whereby the sending parties shall guarantee the terms and conditions of employment provided at law under the Act and subsidiary legislations and also as listed under the provisions of Article 5 of the Regulations including:
(a) maximum work periods and minimum rest periods as applied to various classes of employees;
(b) minimum paid annual leave as applied to various classes of employees;
(c) remuneration, including overtime rates as applied to various classes of employees: with supplementary occupational retirement pension schemes shall be excluded from such remuneration;
(d) the conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
(e) measures in accordance with the laws of Malta relating to health, safety and hygiene at work;
(f) protective measures with regard to the terms and conditions of employment protecting pregnant women or women who have recently given birth;
(g) protective measures in accordance with the laws of Malta with regards to terms and conditions of employment protecting children and young people;
(h) equality of treatment between men and women and other provisions of non-discrimination in accordance with the laws of Malta;
(i) the conditions of workers’ accommodation where this is provided by the employer to workers who are away from their regular place of work;
(j) allowances or reimbursement of expenditure to cover travel, board and lodging expenses where this is provided by the employer to workers away from home for professional reasons
However, as provided by Article 5A, in regard to temporary employment undertakings or placement agencies the terms and conditions related to the conclusion and termination of the employment contract and supplementary occupational retirement pension schemes are not applicable, where the effective duration of a posting exceeds 12 months as provided by Article 5A of the regulations.
In the cases where facts indicate possible irregularities, the DIER shall, on its own initiative, communicate to the Member State concerned any relevant information without undue delay and may ask the competent authority of the Member State of establishment, to provide information as to the legality of the service provider’s establishment, the service provider’s good conduct, and the absence of any infringement of the applicable rules.
Notification of the Posting of Workers
The regulations provides for a list of formalities of a notification to be submitted in the English Language which needs to be provided by the sending party to the DIER of the intention to post a worker to Malta prior to the date of posting of the worker, at the latest at the commencement of the posting, in order to allow factual controls at the workplace. A copy shall be kept at the undertaking in Malta and it has to retain copies, in paper or electronic form, of the employment contract or an equivalent document, including payslips, time-sheets indicating the beginning, end and duration of the daily working time and proof of payment of wages during the period of posting the posted worker.
Enforcement and Infringement
The DIER as the competent authority in Malta shall be responsible for the enforcement of the provisions of these regulations and for liaising and cooperating with the Commission and the authorities having corresponding responsibilities in other Member States on issues relating to the implementation, application and enforcement in practice.
Furthermore, this regulation shall apply to the cross-border enforcement of financial administrative penalties and, or fines, including fees and surcharges, imposed by competent authorities or confirmed by administrative or judicial bodies, on a service provider established in Malta for failure to comply with the applicable rules on posting of workers in another Member State.
When a posted worker alleges that he has been treated in a manner which infringes his rights he may submit a written request to the employer to provide him with a written statement listing the reasons of any difference in treatment which has to be provided within ten working days.
The Posted Worker has the capability of safeguarding his rights by instituting proceedings in the courts of Malta, even after the relationship in which the alleged infringement has occurred has ended and even where the posted worker has left Malta. In the event of a subcontracting chain, both contractor and subcontractor are jointly and severally liable.
Any person contravening the provisions of these regulations shall be guilty of an offence and shall, on conviction, be liable to a fine of not less than €117 and not more than one €1,165 and to refund or pay to the posted worker any amount due to him.
For more information you can contact one of our Team Members at Mifsud & Mifsud Advocates.
