Monthly Archives: March 2023

Pursuant to the implementation of EU Directive 2019/1152 of the European Parliament and of the Council regarding transparent and working conditions (the ‘Directive’), the Transparent and Predictable Working Conditions Regulations (the ‘Regulations’) (Legal Notice 267 of 2022) and amendments to the Employment and Industrial Relations Act (the ‘Act’) (Act XX of 2022) were published to transpose the Directive’s provisions into Maltese law.

The Regulations provide for the minimum requirements for employees relating to their working conditions and shall apply to all employment relationships with effect from the 1st of August 2022.

1. Information to Employees

• The name, registration number and registered place of business of the employer and a legally valid identification document number, gender and address of the employee and place of work;

• The place of work;

• The title, grade, nature or category of work for which the worker is employed;

• A brief specification or description of the work;

• The date of commencement of the employment relationship;

• The duration and conditions of the probationary period;

• If any, the training entitlement provided by the employer;

• The amount of paid leave to which the worker is entitled. This does not only refers to vacation leave entitlement, but also includes all the different leave entitlements under Maltese law;

• The procedure to be observed by the employer and the employee, including the formal requirements and the notice periods, where the employment relationship is terminated;

• Without prejudice to the provisions of the Employment and Industrial Relations Act (the‘Act’) and ancillary regulations in force, the remuneration including the initial basic amount, any other component elements, if applicable, indicated separately as well as the frequency and method of payment of the remuneration;

• Without prejudice the Organisation of Working Time Regulations (S.L. 452.87) and any other applicable legislation regulating the organisation of working time, the length of an employee’s workday or week, and any arrangements for overtime and its remuneration.

This aspect is applicable when the work pattern is entirely or in its majority predictable. The Regulations require employers to provide different information when the work pattern is unpredictable;

• Any collective agreements that regulate the worker’s condition of work or, if such collective agreements, are concluded outside by external bodies, the name of the body or institution within which the agreement was concluded;

• Where it is the responsibility of the employer, the social security institutions that are receiving the contributions attached to the employment relationship and any social protection security that is provided by the employer.

Some of the above-mentioned information, such as the description of the work and date of commencement of the employment relationship, must be provided to the employee within 7 calendar days. However, certain information must be provided to the worker in the form of a document within a month from the employee’s first working day.

2. Employees working outside of Malta

The Regulations determine that if an employee is required to work for more than 4 consecutive weeks outside of Malta, then the information must be provided by the employer to the employee before his departure. Furthermore, the following additional information must be provided:

• The country or countries in which the work abroad is to be performed and its anticipated duration

• The currency to be used for the payment of remuneration

• Where applicable, the benefits in cash or in kind relating to the work assignments abroad and

• Information as to whether repatriation is provided for, and if so, the conditions governing the worker’s repatriation

3. Employer Records

Apart from providing the statutory information to employees under the Regulation, employers are further obliged to keep records of the employment relationship and the employee.

It is noted that the Regulations on record-keeping reflect those that were included in the repealed Information to Employees Regulations (S.L. 452.87), with the exception of the duty to keep a record of the periods of leave accorded to the employee.

4. Changes to the employment relationship

An interesting provision introduced by virtue of the Regulations determines that the conditions of employment agreed upon between the employer and the employee cannot be modified or amended after the commencement of the employment relationship unless changes are required due to a change in laws, regulations or a collective agreement.

5. Prohibition of zero-hour contracts

As the name implies, zero-hour contracts refer the employment agreements or work arrangements under which “a worker is required to be available for work or services as and when needed by the employer, and where the employer promises payment on the basis of hours so worked, without guaranteeing a minimum number of hours to the worker”.

These types of working arrangements are expressly prohibited in terms of Regulation 11 of the Regulations unless the zero-hour worker is a full-time student or the nature of the activity requires the availability of replacement workers on short notice. It is noted that the latter situation is shall only be allowed provided that the zero-hour work is not the employees full-time employment.

6. Parallel Employment

Regulation 12 tackles parallel employment. It confirms that employers cannot prohibit their employees from taking up another employment with other employers outside of their work schedule and shall not treat the said employee adversely for doing so.

An exception to this is if the employer has objective grounds for prohibiting its employees from taking up such parallel employment, such as for health and safety reasons, the protection of business confidentiality, the integrity of the public service or the avoidance of conflicts of interest.

7. Minimum Predictability of Work

Due to the far-reaching changes of the labour markets, particularly the development of new forms of employment, there may be instances when employees were subject to unpredictable working times hindering their work-life balance.

To tackle this aspect, Regulation 5 determines that if an employee’s work pattern is mostly or entirely unpredictable, the employer shall inform him about:

• The fact that the work schedule is variable

• The number of guaranteed paid hours and remuneration for work performed in addition to those guaranteed hours

• The reference hours and days within which the worker may be required to work

• The minimum notice period to which the worker is entitled before the start of a work assignment and, if applicable, the deadline for the cancellation of the work assignment.

Linked to the above, the employee shall have the right to refuse a work assignment unless the work takes place within the reference hours and days that he was informed about at the beginning of the employment relationship and the employer provides reasonable notice of the work assignment. The Regulations also clarify what is classified as reasonable notice.

Workers also have the right to request a form of employment with more predictable and secure working conditions where this is available, and the employer is obliged to provide a reasoned written reply within a month from the date of the request. In cases of individual employers and SMEs, the period to provide the reasoned written reply is 3 months.

8. Probationary Period

The amendments to the Act introduced by virtue of Act XX of 2022 clarify obligations related to the probationary period, particularly in relation to fixed term employment contracts.

The standard length of the probationary period shall be 6 months. Employees holding technical, executive, administrative or managerial positions and whose wage is at least double the national minimum wage established on the date of employment shall be subject to a 12-month probation.

For fixed-term contracts, the newly introduced Article 36(1a) of the Act, stipulates that although a probationary period may be fixed, its duration must be proportional to the expected duration of the employment contract. In fact, the law specifically determines the duration of the probationary
period for fixed term contracts:

• If the fixed term employment contract is between 6 and 15 months, the probation shall be calculated based on 2 months per 6 months of contract duration.

• If the fixed term employment contract is less than 6 months, the probation shall be one-third of the duration of the fixed term contract.

• If the fixed term employment contract is more than 15 months, the probation shall not be less than 6 months.

The duration of the probationary period may be set for less than the above-mentioned timeframes provided that such reduced timeframe is expressly agreed between the employer and the employee.

It is noted that fixed term employment contracts are prohibited from being less than 6 months, unless there are objective reasons based on ‘precise and concrete circumstances characterising a given activity’. Furthermore, employers are obliged to list down the reasons for a fixed-term employment contract being less than 6 months in writing in the same employment agreement.

Another aspect introduced by virtue of Act XX regulates the possible suspension of the probationary period. Under Article 36(1c), the probationary period may be suspended in the case of any 2 weeks or more of approved leave, whereupon the probation shall be extended to a corresponding duration of this leave. It is also prohibited for an employer to dismiss an employee whilst the probation is suspending under this article.

The contents of this article are intended for general information and shall not constitute legal, financial or tax advice. Should you require further information, please do not hesitate to contact us on [email protected].