Part 2 – The Regulations
Scope and Application
The amendments emerging from the Transparent and Predictable Working Conditions Regulations apply to all employees in the EU who possess an employment contract, collective agreements or practice as employees in each Member State (MS). Some parts of the Regulations also apply to seafarers and sea fishermen.
The rights and obligations delineated in the Regulations are to apply to ALL employment relationships retrospectively, by 1st August 2022. Further, if a collective agreement is introduced or implement and is more favourable than the Regulations, then the collective agreement will override.
Important Definitions
The Regulations now provide for significant definitions, that were completely absent from the Information to Employees Regulations. Refer to article 3 of the Regulations which provides for such list, including among others, definitions of:
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- Reference hours and days; this means time slots in specified days during which work can take place at the request of the employer;
- Work pattern; this means the form of organisation of the working time and its distribution according to a certain pattern determined by the employer;
- Work schedule; this means the schedule determining the hours and days on which performance of work starts and ends;
- Zero-hour contract – this means a contract of employment where an employee is required to be available for work when needed by the employer, and the employer promises payment on the basis of hours that the employee worked without guaranteeing a minimum number of hours to the employee.
Obligations of the Employer
The following are the essential duties of the employer which emerge from the Regulations:
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- To provide each employee with the information stipulated in the Regulations in writing; and to ensure that it can be stored by the employee – whether printed or in electronic form;
- To inform employees about the fundamental and basic aspects of the employment relationship, such as:
- Details on the name, registered place of business of employer and valid ID, gender and address of employee and the place of work (note that if there is no fixed place of work, the employer states that the employee will be employed at various places, and include the registered place of business nonetheless; if there is no registered place of business, the domicile of the employer should be stated instead);
- Place of work (whether fixed, not fixed, various places, if employee is allowed to determine his own place of work, the registered place of business or domicile of employer);
- Title/Grade/Nature/Category of work that the employee is employed in;
- Brief description of work or specification;
- Date of commencements of contract;
- End date or expected duration (for fixed term contracts);
- Identity of user undertakings when known (for temporary agency workers);
- Duration and conditions of probation;
- Training entitlement provided by employer (if any);
- Amount of paid leave entitled to the employee including, but not limited to: vacation leave, parental leave, paternal leave, maternity leave, carer’s leave, urgent family leave, bereavement leave; and marriage, quarantine, jury service, sick leave and injury leave;
- Procedure observed by employer and employee for termination of employment – including notice periods, length and method for termination;
- Remuneration (basic amount of pay), overtime, special rates of pay, method of payment of wages, conditions of fines and quantum of fines by employer for non-payment of any due wages;
- Organisation of working time – especially for specific occupational activities, length of work, overtime arrangements and shift work;
- If work pattern is unpredictable – employer to also inform the employee of 3 points:
- That work schedule is variable (including number of guaranteed paid hours and the pay for the work performed for these hours worked);
- Reference hours and days that employee may be required to work;
- Minimum notice period that employee is entitled before start of work assignment and any deadline for the cancellation of the work assignment;
- Existence of collective agreements affecting the employee’s conditions of work, if any;
- Identity of social security institutions that are receiving the social contributions attached to the contract of employment and any protection provided by employer regarding this;
- ANY OTHER relevant condition of employment.
The list is non-exhaustive – any other condition that the employer feels is relevant to be notified to the employee, should be duly listed in the notification being sent to the employee.
The Regulations also includes a list of requirements to be sent to the employee who is an outworker.[1] This statement needs to be signed and is to show specifically:
a. The name, registration number and registered place of business of the employer and a legally valid identification document number and address of the employee
b. The rate to be paid for the work; and
c. Special conditions regulating the contract
If the information was not previously mentioned in the existing contract of employment, then it has to be provided individually to the employee in the form of one or more documents, during a period beginning from the first working day and ending not later than the 7th calendar day.
The other information referred to in provision 5(1), regarding the full list of information to be provided to the employee, shall be provided individually to the employee in the form of a document within one (1) month of the first working day.
Employees not in Malta
Employees who are required to work in a country other than Malta for more than four (4) consecutive weeks; have to be in possession of such documents before the employee’s departure and have to include the following additional information:
(a) the country/countries in which the work abroad is to be performed and its anticipated duration;
(b) the currency to be used for the payment of remuneration;
(c) where applicable, the benefits in cash or in kind, relating to work assignments abroad; and
(d) information as to whether repatriation is provided for and if so, the conditions governing the employee’s repatriation.
A copy of any written contract of employment or statement or letter of engagement shall be kept by the employer.
A register must also be kept by the employer indicating details of that particular employee such as: their name, address, gender and ID card number, their occupation, the date of their commencement, the nature of the contract and date of termination if for a fixed duration, the time of work, leave period and rest periods and updates in any of the work conditions. This is the same for outworkers.
The general rule is that no condition of employment can be modified or amended AFTER the commencement of employment of that employee. However, modifications are permitted after the employment commences when it is a result of any change in laws, regulations or collective agreement, regarding the place of work.
Zero-Hour Contracts
Zero-hour contracts[2] shall be prohibited, subject to two exceptions:
a. If the nature of the activity concerned requires the availability of replacement employees on short notice, and such zero-hour contract is NOT the whole-time employment of the employee, it is permitted;
b. If the employee is a full-time student, the status of a whole-time employee prevails over the student full time status;
The employer must prove the existence of any materials facts indicating the above.
According to article 12, an employer may not prohibit an employee from either taking up employment with other employers outside that work schedule, or else subject the employee to adverse treatment for working with other employers. Notwithstanding this, an employer CAN prohibit an employee from taking up employment with other employers based on objective grounds like: health and safety, protection of business confidentiality, the integrity of the public service or the avoidance of conflicts of interest.
Lastly, if an employer is required to provide training to the employee for that particular work he is assigned to, the training must be provided to the employee free of cost; it shall count as working time; and it shall take place during working hours as much as possible.
Rights of the Employee
If an employee’s pattern of work is unpredictable, that employee cannot be forced to work. However, if the two below prerequisites are satisfied, the employee will be asked to work, irrespective of the unpredictability.
The two prerequisites are that:
a. The work takes place within predetermined hours and days;
b. The employee is informed by the employer, of a work assigned to him, within a reasonable notice period. The notice period shall not be less than:
c. 30 days for a work task of 6 or more weeks
d. 15 days for a work task of 2-5 weeks
e. 7 days for a work task of 1-2 weeks
f. 3 days’ notice for a work task of 5-7 days and
g. 1 day notice for a work task of less than 5 days
If they are not fulfilled, the employee has the right to refuse that work assigned to him, without any adverse consequences.
An employee who has worked six (6) months with the same employer and has completed the probation period, can request a form of employment with more predictable and secure working conditions if it is available. He is to receive a reasoned written reply within one (1) month, from the employer, stating reasons for the decision regarding this transition.[3]
Specifically regarding natural persons acting as employers, and Small and Medium sized enterprises (also known as SMEs) the deadline for the reasoned written reply shall be no more than 3 months of the request and an oral reply may be provided to a subsequent similar request submitted by the same employee if the justification for the reply as regards the situation of the employee remains unchanged.
The employee may also submit a complaint to the Director General if they have not received all or part of the relevant information listed in Article 5 (on the information to be provided to the employee) and/or article 7 (regarding employees working outside Malta) in due time. The Director is to investigate the matter, and order the employer to provide the employee with the missing information, as deemed necessary. Moreover, if the employer breaches the worker’s right, he is liable to a fine of not less than €450 (as per articles 16 and 19).
As per article 17, every employee has a right to a dispute resolution and redress in cases of infringements of their rights established by such Regulations. They may lodge a complaint to the competent authorities.
Additionally, as stated in article 18, any dismissal of an employee is regarded as unfair if the reason for dismissal was because that employee refused to comply with a requirement which the employer imposed or proposed, and goes contrary to any provision in the law. Those employees who believe that they have been unfairly dismissed may request the employer to provide them with duly substantiated grounds for the dismissal, in writing. Before the Industrial Tribunal, the employer must prove that the grounds for dismissal were not unfair but reasonable.
Concluding Remarks
The amendments formulated by Act XX of 2022 which amended the principal act primarily serve to better instil reasonable and proportional probationary periods for fixed-term contract. Whilst the law has created more fixed rules for the categories of fixed term contracts in three categories, it has failed to provide a definition for what is proportional probation and what are justifiable grounds to merit a decrease in probation. This leaves more discretion to both the employer to decide on probation depending on the facts at hand, which may in turn allow for more bias and discrimination, and also to the Industrial Tribunal and the Judiciary, which will have a final say on a case-by-case basis.
Moreover, through the implementation of the EU Directive (2019/1152) into local legislation, the Transparent and Predictable Working Conditions Regulations adequately transposes the minimum requirements of working conditions sought by the EU, into a more practical model for the local scene, in turn providing an added layer of protection to the employee, as a weaker party, to the employment contract.
Authors: Ann Bugeja & Christine Borg Millo
Footnotes
[1] Article 2 of EIRA defines who an outworker is – “outworker” means a person to whom articles, materials or services of any nature are given out by an employer for the performance of any type of work/service, where such work or service is to be carried out either in the home of the outworker or in some other premises not being premises under the control and management of that other person
[2] Which are defined as being a contract of employment where an employee is required to be available for work or services when needed by the employer, and the employer promises payment on the basis of hours that the employee worked without guaranteeing a minimum number of hours to the employee.
[3] Refer to article 14 of the Regulations for this matter.
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