Is there a legal obligation to keep a record of the daily start time and end time of working time for a Company’s employees? If yes, does this obligation emerge from Maltese law?
Every employer has a legal obligation, as per article 9 of the Transparent and Predictable Working Conditions Regulations (S.L. 452. 126) which transposes Directive (EU) 2019/1152, to keep a register or registers indicating, in respect of each worker, among others
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- the time, paid for at ordinary time rates, during which the worker is employed;
- the time, paid for overtime or higher rates, during which the worker is employed;
- the periods of daily and weekly rest accorded to the worker; and
- the periods of leave accorded to the worker.
Secondly, the law under the Organisation of Working Time Regulations (S.L 452.87) which implements Directive 2003/88/EC, specifically Article 20 (3), states that it shall be the duty of the employer to:
(a) keep adequate records to show the limits on the average working time for each seven-day period of a worker, and
(b) to retain such records for at least two (2) years from the date on which they are made.
These legal obligations are a local implementation of pre-existing Maltese Law in terms of the Information to Employees Regulations (S.L 452.83) and its respective provisions, which have now been abolished, and has been replaced by the Transparent and Predictable Working Conditions Regulations, (S.L 452.126).
What is the realistic penalty for a breach of record keeping?
Any person who contravenes any provision of the Regulations shall be guilty of an offence and shall, on conviction, be liable to a fine (multa) of not less than four hundred and fifty euro (€450). This is stipulated in article 19 of the Transparent and Predictable Working Conditions Regulations (S.L. 452.126).
Moreover, as per article 20 (4) of the Organisation of Working Time Regulations (S.L. 452.83), when an employer fails to keep records under in relation to an employee, in proceedings before a Court, the onus of proving that the said provision was complied with shall lie on the employer.
Are there any other material comments on working time record keeping generally that one should be made aware of?
The employer also has the duty in terms article 9 (3) of the Transparent and Predictable Working Conditions Regulations (S.L. 452.126), to provide the Director responsible for Employment and Industrial Relations with any additional information that he may request in relation to the conditions of employment of the workers such as, but not limited to:
(a) the name, gender, a legally valid identification document number and address;
(b) the occupation;
(c) the date of birth;
(d) the wages paid;
(e) the hours of work;
(f) the date of engagement;
(g) a copy of the registers or part thereof, kept in accordance with the provisions of these regulations; and
(h) any other information which the Director may request in connection with the conditions of employment of the workers.
GDPR holds that personal data and sensitive personal data should not be retained for periods that are longer than necessary. In this context, an employer has a duty to put forward a retention policy for all data and documentation that it collects and processes, with the purpose of ensuring compliance to Regulation (EU) 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and to ensure that no resources are utilised in the processing and archiving of data which is no longer of relevance.
The Retention Policy would be aimed at regulating the retention, maintenance and disposal of documentation, both personal and other, within the business, as provided for in the Data Protection Legislation and General Data Protection Regulation (EU) 2016/679 (GDPR), and in accordance with the principles of data protection legislation, and other legal provisions in Maltese Law.
Concluding remarks
Essentially, there is no specific legal rule in Malta requiring record keeping for daily start/end time for working time, but there are lots of pre-existing Maltese legal rules that require the tracking of overtime and rest breaks, and so on, that may make a daily record keeping system, practically, a good idea, but it is not specifically legally required. The law only requires the employer to keep records to show the limits on average working time of the employee and the time during which the worker is employed, and not specifically the daily start/end time.
The employer is free to choose whatever method or system it likes to keep track of its legally required data such as maximum hours /pay/breaks/limits, and so on, however, it is recommended that any retention of data based on palmprints and fingerprint is not the preferred option since it is considered to be sensitive data.