Employment

Employment

First Step

The main legislation governing employment matters in Malta is the Employment and Industrial Relations Act (EIRA) – Chapter 452 of the Laws of Malta.

Prior to commencing employment an agreement in writing is generally entered into between the employer and the employee which would set out, inter alia, the services to be rendered and the remuneration payable.

Employment contracts may be for a definite or an indefinite period.

A fixed term contract exceeding a continuous period of four years is treated as a contract of indefinite duration for all purposes at law, unless the employer may provide objective reasons to justify such limitation

If no written agreement is entered into between the employer and the employee, the employer is bound to furnish the employee with a letter of engagement or a signed statement, by not later than eight working days from the commencement of employment and which shall include the following information:

  • the name, registration number and registered place of business of the employer and a legally valid identification document number, sex and address of the employee and the place of work. In the absence of a fixed place of work it should be stated that the employee will be employed at various places together with the registered place of business;
  • the normal hours of work;
  • the periodicity of wage payments;
  • in the case of a fixed term contract of employment, the expected or agreed duration of the contract period;
  • the paid holidays, and the vacation, sick and other leave to which the employee is entitled;
  • the conditions under which fines may be imposed by the employer;
  • the title, grade, nature or category of the work for which the employee is employed;
  • the notice periods to be observed by the employer and the employee should it be the case;
  • the collective agreement, if any, governing the employee’s conditions of work; and
  • any other relevant or applicable condition of employment:

If any of the above information is regulated by any law, regulation, national standard order, sectoral regulation order or collective agreement, the information may, where appropriate, be given in the form of a reference to the laws, regulations, orders or collective agreements governing that same information.

Probation period

The first six months of any employment under a contract of service shall be probationary employment unless otherwise agreed by both parties for a shorter probation period.

Provided that in the case of a contract of service, or collective agreement, in respect of employees holding technical, executive, administrative or managerial posts and whose wages are at least double the minimum wage established in that year, such probation period shall be of one year unless otherwise specified in the contract of service or in the collective agreement.

During the probationary period the employment may be terminated at will by either party without assigning any reason. Provided that a week’s notice of the termination of employment shall be given to the other party in the case of an employee who has been in the employment of the same employer continuously for more than one month

Hours of work

The normal hours of work for full-time employment and the maximum hours for part-time work vary according to the relevant sector of industry. Generally, the normal hours of work (excluding overtime) should not exceed a maximum of an average of 48 hours a week spread over a reference period of 17 weeks.

An employee may be requested by his/her employer to work more than an average of 48 hours per week. However in such a case, a written consent is required from the employee concerned. If an employee does not give his/her consent, the employer can neither force nor victimize that particular employee as a consequence of his/her refusal. On the other hand, if the consent is given, the employer has to ensure that the employee is given the daily rest and weekly rest periods due in terms of law. The consent given by the employee may be withdrawn by giving at least seven days notice to his/her employer.

If the employee has not consented to work over an average of 48 hours a week, the maximum working hours including overtime shall not exceed such an average when calculated over a reference period, usually of 17 weeks. It is important to clarify that if an employee who normally works on a 40 hour week is asked to perform overtime, such overtime may be of more than 8 hours in a particular week, provided that the provisions at law regarding daily rest and weekly rest periods are observed.

Notice Periods

Prior to the termination of an indefinite contract of employment the appropriate period of notice must be given either by the employee or by the employer in cases of redundancy. The notice period is calculated on the basis of the employee’s length of service with the employer.

  • Not more than one month – No notice
  • More than one month and up to six months – One week
  • More than six months and up to two years – Two weeks
  • More than two years and up to four years – Four weeks
  • More than four years and up to seven years – Eight weeks
  • More than seven years and up to eight years – Nine weeks
  • More than eight years and up to nine years – Ten weeks
  • More than nine years and up to ten years – Eleven weeks
  • More than ten years – Twelve weeks

Longer periods may be agreed by the employer and employee in the case of technical, administrative, executive or managerial posts

Notice by the employee

When the employee terminates his/her employment without notice s/he shall be liable to pay to the employer a sum equal to half the wages that would be payable in respect of the period of notice that is not worked. If during the notice period the employee decides not to continue to work the notice period, s/he is also liable to pay to the employer a sum equal to half the wages that would be payable in respect of the unexpired period of notice.

If on giving notice or while working the notice, the employer decides not to allow the employee to work or continue to work the notice, the employer will be obliged to pay to the employee a sum equal to the full wages that would be payable in respect of the unexpired period of notice.

Notice by the employer

In cases of redundancy on receiving notice from the employer, the employee has the option to either continue to work the notice period, or to request the employer to pay him/her a sum equal to half the wages that would be payable in respect of the unexpired period of notice.

If the employee decides to terminate employment at any time while working the notice, the employer is also obliged to pay the employee a sum equal to half the wages that would be payable in respect of the unexpired period of notice.

If the employer decides not to allow the employee to work or not to continue to work the notice, the employer is obliged to pay to the employee a sum equal to the full wages that would be payable in respect of the unexpired period of notice.

Waiver of Notice

Notwithstanding the foregoing provisions of this article, an employer may dismiss the employee and the employee may abandon the service of the employer, without giving notice and without any liability to make payment if there is good and sufficient cause for such dismissal or abandonment of service.

An employer may not set up as a good and sufficient 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; or
  2. except in the case of a private domestic employee, that the employee no longer enjoys the employer’s confidence; or
  3. that the employee contracts marriage; or
  4. that an employee is pregnant with child or is absent from work during maternity leave; or
  5. 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; or
  6. 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; or
  7. 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:

Collective Redundancies

Collective Redundancies are regulated by Legal Notice 428 of 2002 – Collective Redundancies (Protection of Employment) Regulations.

Collective redundancy is the termination of the employment by an employer on grounds of redundancy, over a period of thirty days, of:

  • 10 or more employees in establishments normally employing 20 to 99 employees;
  •  10% or more of the number of employees in establishments employing 100 to  299 employees; and
  • 30 or more in establishments employing 300 employees or above

Consultation with Employees’ Representatives

The Employer proposing to declare the collective redundancy has the duty to notify in writing the Employees’ Representatives, also forwarding a copy to the Director of the Department of Industrial and Employment Relations, about such intention while giving the said representatives an opportunity to consult. Such consultations between the employer and the employees’ representatives should commence within seven working days from the day of notification and are intended to cover ways and means of avoiding the collective redundancies or reducing the number of employees affected by such redundancies and for mitigating the consequences thereof.

Information to the Employees’ Representatives

Within the period of seven days mentioned above the employer has the duty to supply the Employees’ Representatives with a written statement, also forwarding a copy to the Director the Department of Industrial and Employment Relations, providing:

  • The reasons for the redundancies
  • Number of employees intended to be made redundant
  • Number of employees normally employed
  • The criteria proposed for the selection of the employees to be made redundant
  • Details regarding any redundancy payments which are due
  • The period over which redundancies are to be effected.

Posted Workers

A Posted Worker in Malta is an employee of a foreign undertaking who does not normally work in Malta but who for a limited period of time is sent by the foreign undertaking to work in Malta.

Posting of Workers in Malta is regulated by Legal Notice 430 of 2002 – Posting of Workers in Malta Regulations. These regulations apply to foreign undertakings which:

  1. send posted employees in Malta on their account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or
  2. send posted employees to an establishment or to an undertaking in Malta which is owned by the foreign undertaking, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting; or
  3. being temporary employment undertakings or placement agencies, hire out a worker to a user undertaking established or operating in Malta, provided there is an employment relationship between the temporary employment undertaking, or placement agency, and the worker during the period of posting.

Equal Treatment

All posted employees are entitled to receive equality of treatment as the comparable employees and have equal access to employment rights and health and safety rights under Maltese law.

Notification

While carrying out work in Malta an employee being posted from an EU/EEA country is not required to apply for a working licence in Malta. In the case of a third country national (TCN) employee who is employed by a posting undertaking that is established in an EU/EEA country, there is no need to go through a working licence procedure in Malta if such posted worker already holds a working licence issued in the country where the posting undertaking is established.

For any foreign national who is posted in Malta by an undertaking established outside an EU/EEA country, a working licence is required to be issued by the Employment and Training Corporation.

In any case of a posting in Malta, the undertaking posting the worker to Malta is obliged to notify the Director of Industrial and Employment Relations (DIER) of its intention to post a worker to Malta. A ‘Notification of a Posted Worker to Malta’ form, prepared for such purpose. The Notification Form accompanied with a copy of the posted worker’s employment contract (with the posting undertaking) and, in the case of a TCN posted employee from an EU/EEA country, also with a copy of his existing working licence, should reach Department of Industrial and Employment Relations prior to the commencement of the posting. The undertaking making use of the services of the posted worker is obliged to keep a copy of such Notification Form at the place of work for monitoring purposes by the inspectors of the DIER.

Breaching Conditions of Employment

Any claims for the breach of conditions of employment must be filed with the Department of Industrial and Employment Relations within four months from the alleged breach and decided upon by the Industrial Tribunal. The Industrial Tribunal is competent to hear cases involving inter alia alleged unfair dismissal, discriminatory treatment, breach of the principle of equal pay for work of equal value, victimization, harassment

A complaint can also be lodged by the employee with officers of the Department of Industrial and Employment Relations in the event that the employer fails to pay any wages due to an employee. If the officers deem that the law has been breached, the employer concerned is contacted and the Department follows the issue accordingly. In case that the employer persists in breaching the law, criminal proceedings against the employer are initiated before the Court of Magistrates as a Court of Criminal Judicature. The employee also has the right to institute a civil action.


About Dr Doran Magri Demajo

Dr Doran Magri Demajo is a Partner at Be Legal and is primarily responsible for corporate law, employment law, financial services and Maritime law.
View all posts by Dr Doran Magri Demajo

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