An Overview of current Labour Law in Malta

Andrew Borg-Cardona LL.D., M.APartner BCGL Advocates56 Melita Street Valletta

andrewbc@bcgladvocates.com

BCGLBCGL

ADVOCATESADVOCATES © Andrew Borg-Cardona 2010

COPYRIGHT & WAIVERCOPYRIGHT & WAIVER

This presentation is not intended to This presentation is not intended to constitute legal advice and shall not constitute legal advice and shall not be taken as a legal opinion.be taken as a legal opinion.

You are advised to seek legal advice You are advised to seek legal advice on any issues that arise or on any on any issues that arise or on any interpretation that is relevant.interpretation that is relevant.

This presentation may not be This presentation may not be reproduced except with the express reproduced except with the express consent of the rights holder.consent of the rights holder.

BCGLBCGL

ADVOCATESADVOCATES

The Employment & Industrial Relations Act 2002

The Act was finally brought into effect in 2002 replacing the 1952 CE(R)A and the 1976 IRA

It was introduced not without controversy in the industrial relations aspect

The Act is supplemented by a number of Legal Notices giving effect to certain areas and by other legislation

BCGL BCGL

ADVOCATES ADVOCATES

BCGLBCGL

ADVOCATESADVOCATES

Some important definitions "comparable whole-time employee" "conditions of employment” "contract of service” "discriminatory treatment" "employee" "part-time employee” "unfair dismissal” "trade dispute” "whole-time employee / with reduced hours”

BCGLBCGL

ADVOCATESADVOCATES

The Relevant Organs

The Department of Employment & Industrial Relations (overall involvement)

The Employment Relations Board (S.3) The Industrial Tribunal (S.73) The Conciliation Panel (S.68) The OHSA The ETC

BCGLBCGL

ADVOCATESADVOCATES

Sources of Recognised Conditions of Employment

National Standard Orders Collective Agreements Statute (including Health & Safety) Contract of Employment Sectoral Standard Orders (old WROs) Practise

BCGLBCGL

ADVOCATESADVOCATES

Matters of General Application

Maternity Leave (expanded by Regulations) Annual Bonus & Weekly Allowance Protection of wages Protection from discrimination & victimisation Maximum working hours Occupational Health & Safety Information & Consultation Sick/special leave entitlement (LN432/07) 4-year rule (LN51/07)

BCGLBCGL

ADVOCATESADVOCATES

LN 432/07

BCGLBCGL ADVOCATESADVOCATES

APPLICABLE TO EMPLOYEES NOT OTHERWISE COVERED BY WRO / CA / CONTRACT

Sick-leave: 2 working weeks per calendar year (less Social Security Benefits)

Bereavements/birth: 1 day Marriage: 2 days Injury: up to 1 year Jury service: as required

FAMILY FRIENDLY MEASURESAvailable to Public Service* employees

BCGLBCGL ADVOCATESADVOCATES

Child bearing:• Maternity Leave 14 wks pd• Pro Rata in hours taken in days for part-time• Special Maternity Leave 5 wks unpaid• 6 month work obligation on return• Paternity – 2 days

(* Public Service appears to mean any entity in which Government has management or control)

FAMILY FRIENDLY MEASURES (2)

BCGLBCGL ADVOCATESADVOCATES

Available to both parents• Adoption leave – 5 wks pd (may be shared)

• 3 month work obligation on return

• Foreign adoptions – consideration given to up to 3 months unpaid

• Fostering – up to 1 yr unpaid (max 1 yr in 4)

• Parental leave – up to 1 yr for each child under age 6 (in blocks of months) (can be shared)

• Career break up to 5 years (may be shared)

• Rules on resumption during summer/teaching grades

FAMILY FRIENDLY MEASURES (3)

BCGLBCGL

ADVOCATESADVOCATES

Available to all• Bereavement – 2 days

• Marriage – 3 days

• Reduced hours – available to care for relatives (Armed Forces / Performance Contract not eligible)

• Responsibility Leave (1 year at a time) (may be shared)

• Urgent family leave – up to 4 days from annual allowance

• 30 days unpaid – for any reason by arrangement

• Total of 8 years allowed

Teleworking

Telework: organising and/or performing work in which a considerable proportion of an employee’s working time is spent away from the firm’s premises or from where the output is delivered

BCGLBCGL

ADVOCATESADVOCATES

Benefits to Employers

Save costs on office space Increase service hours / productivity Reduce staff absenteeism / mistakes Enhance recruitment and retention Retain professional / experienced

employees who would have to leave work due to family commitments

BCGLBCGL

ADVOCATESADVOCATES

Benefits to Employees

Save time and money in travelling Reduce stress by improving work-life

balance Flexibility of working from home Allows multi-task with other areas Higher disposable income by saving Enhance career:new skills/ competences

BCGLBCGL

ADVOCATESADVOCATES

Legal Issues - examples

Working time control – issues of proportionality / entitlements

Health & Safety – who is responsible? Discipline – how can you control

behaviour / quality Time-keeping

BCGLBCGL

ADVOCATESADVOCATES

Protection of Wages

Salary has to be paid in full, on time and without deductions except as allowed by law

No terms and conditions as to manner in which to be spent

To be paid in tender or by cheque – direct credit debatable though much easier

BCGLBCGL

ADVOCATESADVOCATES

Pro-Rata Benefits

Employees on part-time or reduced hours are entitled to pro rata benefits of leave (including sick, special & injury) and bonus/weekly allowance

Comparison is to be made with comparable whole time employees

All P/T employees are entitled to receive and there is no distinction between principal and other employment

BCGLBCGL

ADVOCATESADVOCATES

Protection against Discrimination

It shall not be lawful for any person when advertising or offering employment or in regard to employees already in employment to discriminate on the basis of any distinction, exclusion or restriction which is not justifiable in a democratic society including discrimination made on the basis of marital status, pregnancy or potential pregnancy, sex, colour, disability, religious conviction, political opinion or membership in a trade union

BCGLBCGL

ADVOCATESADVOCATES

Protection against victimisation

It shall not be lawful to victimise any person for having made a complaint to the lawful authorities or for having initiated or participated in proceedings for redress on grounds of alleged breach of the provisions of this Act, or for having disclosed information, confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer

BCGLBCGL

ADVOCATESADVOCATES

Protection against harassment

It shall not be lawful for an employer or an employee to harass another employee or to harass the employer by subjecting such person to any unwelcome act, request or conduct, including spoken words, gestures or the production, display or circulation of written words, pictures or other material, which in respect of that person is based on sexual discrimination and which could reasonably be regarded as offensive, humiliating or intimidating to such person.

BCGLBCGL

ADVOCATESADVOCATES

Redress in the Tribunal

A person who alleges that the employer is in breach of the foregoing may within four months of the alleged breach, lodge a complaint to the Industrial Tribunal and the Tribunal shall hear such complaint and carry out any investigations as it shall deem fit.

An employer might be liable for acts of employees if an adequate system for prevention or protection is not in place.

BCGLBCGL

ADVOCATESADVOCATES

Contracts of Employment

A person may bind himself to give his services for a fixed term or for an indefinite term, or in respect of a specified task, undertaking, work or service

Probation of 6 months is assumed but can be varied, as can notice

Can be part-time, whole-time or casual

BCGLBCGL

ADVOCATESADVOCATES

Termination of Contracts (1)

During probation no need to give reason: don’t give a reason

In the case of indefinite contracts due to redundancy with notice applying LIFO in the class and taking into consideration rules relating to information

In the case of definite contracts by paying half of balance outstanding

BCGLBCGL

ADVOCATESADVOCATES

Termination of Contracts (2) Any type of contract can be terminated summarily if

good and sufficient cause exists There is no adequate definition The cause should be such as to strike at the heart of

the relationship and if not preceded by warnings be of sufficient gravity to justify summary dismissal

The law tells us what is NOT a good cause

BCGLBCGL

ADVOCATESADVOCATES

Not a Good Cause (1) that the employee at the time of the dismissal was a

member of a trade union, or is seeking office as, or acting or has acted in the capacity of an employees’ representative

except in the case of a private domestic employee, that the employee no longer enjoys the employer’s confidence

that the employee contracts marriage that an employee is pregnant with child or is absent from work during maternity leave

BCGLBCGL

ADVOCATESADVOCATES

Not a Good Cause (2) that the employee has filed a complaint or is

participating in proceedings against the employer involving alleged violation of laws or regulations or is having recourse to competent administrative authorities

that the business in which the employee is engaged has undergone a transfer of ownership, unless he proves that the termination is necessary for economic, technical or organisational reasons entailing changes in the workforce

BCGLBCGL

ADVOCATESADVOCATES

Not a Good Cause (3)

that the employee discloses information, whether confidential or otherwise, to a designated public regulating body, regarding alleged illegal or corrupt activities being committed by his employer or by persons acting on the employer’s name and interests

All of the above are not good causes for termination in themselves though it can be argued that they are if there is abuse or special circumstances

BCGLBCGL

ADVOCATESADVOCATES

Good causes – maybe…

Theft – must be “real” Violence – consider circumstances Performance – warnings? Abuse of sick-leave – medical opinion? Insubordination – refusal of orders Repetition of minor offences Reaching retirement age as defined in the

Social Security Act. Anything can be a good cause, really

BCGLBCGL

ADVOCATESADVOCATES

Disciplinary procedures

Objective consideration with the employee allowed to state case

Punishment to fit the crime Warning – suspension – demotion Don’t discriminate between employees or

create precedents No legal obligation for formal procedure exists,

unlike UK, but if one is stipulated it should be followed

BCGLBCGL

ADVOCATESADVOCATES

Industrial Relations

Nothing much has changed here The law relating to industrial disputes is

the same The categories of employees that should

not take action has been widened The Industrial Tribunal has been

modified• Composition for certain cases

BCGLBCGL

ADVOCATESADVOCATES

The Subsidiary Legislation (1)

Definite Contracts• No discrimination between employees on

different types of contract

• 4-Year rule - objective reasons for extension of definite status

BCGLBCGL

ADVOCATESADVOCATES

The Subsidiary Legislation (2)

Part-Time Workers • Pro-Rata Benefits to be given

• What are the benefits?

BCGLBCGL

ADVOCATESADVOCATES

The Subsidiary Legislation (3)

Foreign Workers• Same treatment to be given as to Maltese

Collective Redundancy• Consultation rules – when do they apply

Guarantee Fund• Rules of operation

Transfer of Business• Implications

BCGLBCGL

ADVOCATESADVOCATES

The Subsidiary Legislation (4)

Parental Leave• Expanded rights

Urgent Family Leave• No notification necessary

Organisation of Working Time• Limitations and breaks

Information & Consultation

BCGLBCGL

ADVOCATESADVOCATES

The Other Legislation

Social Security Act Occupational Health & Safety Authority

Act • Regulations thereunder

Employment & Training Services Act• Regulations thereunder

BCGLBCGL

ADVOCATESADVOCATES

This presentation is available This presentation is available for personal use – please for personal use – please email me on email me on andrewbc@bcgladvocates.com

THE THE ENDEND