News & Events

Balancing it out - Family and Employment

Submitted By Firm: CSB Advocates

Contact(s): Andrew J. Zammit, Ann Bugeja

Author(s):

Date Published: 10/8/2013

Article Type: Legal Article

Share This:

The recent increase in maternity leave has created strong views, unsurprisingly divided into two broad categories: those who insist that the increase of the maternity leave to 18 weeks was essential and inevitable, and those who feel that the extended maternity leave will prove to be too much of a financial burden for the employer.

The guiding principle of maternity leave – as explained in ILO conventions on the subject - is based on health considerations, whereas the extension of such leave is often quoted as being necessary because the mother needs to spend time with her child after childbirth, which, in itself is more of a work-life balance matter than a health issue.

The Increase in Maternity Leave

The increase in the length of maternity leave was raised a while back and the proposals were originally introduced on October 3rd 2008 by the European Commission. The two proposals by the European Commission were to increase maternity leave from 14 to 18 weeks, and the second was to improve the situation of self-employed women by providing equivalent access to maternity leave, on a voluntary basis. For the purpose of this article, I will be focusing on the first proposal – that of the increase in maternity leave. 

In June 2011, the European Parliament wanted to go a step further when it proposed maternity leave of 20 weeks that is fully remunerated as well as the introduction of two weeks of paternity leave. When called to vote, the Council of the European Union and the European Parliament did not manage to reach an agreement on these proposals.

In terms of Maltese law the entitlement to maternity leave is governed by the Protection of Maternity (Employment) Regulation, Subsidiary Legislation 452.91. The more significant and awaited amendment was by virtue of Legal Notice 503 of 2011, which legal notice introduced the extension to maternity leave.

Prior to the 2011 legal notice, a pregnant employee was entitled to apply to her employer in writing (at least 4 weeks before the maternity leave begins) for maternity leave for an uninterrupted period of 14 weeks with full wages.

If the employee was unable to avail herself of the maternity leave entitlement before the date of birth, such remaining balance of entitlement could be availed of after the child’s birth. A pregnant employee was entitled to time-off without loss of pay or any other benefit, in order to attend ante-natal examinations.

By virtue of Legal Notice 503 of 2011, the mentioned uninterrupted period of fourteen weeks increased to sixteen weeks with effect from 1st January 2012 and to eighteen weeks with effect from 1st January 2013.

Employees who shall be on maternity leave on 1st January 2013 shall be automatically entitled to enjoy maternity leave for a period of eighteen weeks, even where such maternity leave commenced before 1st January 2013.

The Regulations provide that an employee on maternity leave shall be entitled to the first fourteen weeks of maternity leave with full wages paid by the employer, but if the employee chooses to avail herself of any additional maternity leave beyond the fourteen weeks (up to the eighteen), the employer shall not be obliged to pay any wages in respect of maternity leave which goes beyond the aforementioned fourteen week period.

Therefore the additional period availed of by the employee beyond the fourteen weeks, is deemed to be a benefit in terms of the Social Security Act paid by the Government.

The Rights of the Employer and the Employee before and after Maternity Leave

The Employment and Industrial Relations Act (Chapter 452 of the Laws of Malta) states that where the mother does not resume work after the birth of her child or, having resumed work, terminates her employment without good and sufficient cause within six months of the resumption of work she is liable to refund the wages received during the maternity leave availed of.

When an employee is on maternity leave, the employee is deemed to have been in employment and during any such absence she is still deemed to be entitled to all rights and benefits which may accrue to other employees of the same class or category of employment at the same place of work. Such opportunities include the right to apply for promotion opportunities at her place of work and the entitlement to return to the same job (when this is no longer possible for a valid reason, to equivalent or similar work which is consistent with her original contract of employment). However, during the period of maternity leave the employee has no right to any bonus or allowance related to performance or productivity.

Moreover in terms of the Protection of Maternity (Employment) Regulations an employer may not dismiss a pregnant employee, an employee who has recently given birth or a breastfeeding employee, as of:

  • the date in which such employee formally notifies the employer of her pregnancy to the end of her maternity leave; or 
  • during any period of special maternity leave, because of her condition or because she avails herself of any rights in accordance with her entitlements at law.  

An employer may however dismiss such an employee during her probationary period, on grounds of redundancy or if there is good and sufficient cause for such dismissal.  

In cases where there is good and sufficient cause to dismiss the employee, the employer must cite duly substantiated grounds for her dismissal in writing in her notice of termination and send a copy of such notice to the Director responsible for Employment and Industrial Relations. The same would be applicable in the case when a pregnant employee would be dismissed during probation. If the employer fails to give written reasons for dismissal at the time of dismissal or if the employee considers that any reason given by the employer is unjustified, and that she considers that the dismissal was unfair, the employee may present a complaint of alleged unfair dismissal before the Industrial Tribunal within four months from the date of the dismissal. It is important to note that in the last two scenarios, the onus of proof is on the employer to prove that the employee was dismissed for a good and sufficient cause, failure of such proof is considered by the Tribunal as an inference that the dismissal was indeed related to the employee’s pregnancy.

In the case of a pregnant employee who is in her probationary period, if the probationary period has not been exhausted on the date when the pregnant employee is to start her maternity leave, the probationary period shall be deemed to have been automatically suspended on the commencement of the maternity leave for the whole period of maternity leave.  Any remaining probationary period shall thereafter continue to run upon her return to work following the end of the maternity leave.

If a pregnant employee or an employee who has recently given birth or who is breastfeeding is granted special maternity leave before the probationary period has been exhausted, the probationary period shall be considered to have been automatically suspended for the duration of the special maternity leave and shall, only start to run again upon her return to work.

Leave for Parents

Maltese law does not cater specifically for paternity leave, but provides for one day of special leave as birth leave, and parental leave of up to 4 months (in line with Council Directive 2010/18/EU of 8 March 2010), however such leave will be unpaid.

The following is the breakdown of leave which may be availed of by parents.  

Urgent family leave

15 hours per year with full pay-deductible from vacation leave entitlement.

Urgent circumstances covered would include accidents to members of employee’s immediate family, sudden illness or sickness requiring the presence of the employee and presence during births and deaths of members of the employee’s immediate family.

Special Leave

Every employee is entitled to the following minimum periods of special leave, in addition to the vacation leave allowances:

  1. 1 working day of bereavement leave;
  2. 1 working day of birth leave;
  3. 2 working days marriage leave;
  4. up to 1 year of injury leave;
  5. jury service leave for as long as necessary.

Parental Leave

Unpaid leave for a period of four months until child turns 8, which must be availed of in periods of one month each. This can be availed of by both parents on the grounds of birth, adoption, fostering or legal custody of a child.

Maternity Leave

Paid leave for a period of eighteen weeks for the female employee.  

Parents and employers are encouraged to agree how (parental) leave will be taken collectively, to ensure continuity and that the rights of both employee and employer are respected. 

Conclusion

In Malta, the justification for employers to pay the maternity leave is based on the principle that the employer will benefit from the experience and productivity of the employee on her return to work. Therefore if the employee will no longer be obliged to work after giving birth, then the obligation of employers to pay maternity leave should also be removed, as this payment becomes a social benefit.

It is interesting to note how family friendly measures are at the top of the priority list in order to safeguard the interest of the employees and the ‘family institution’. One must also bear in mind that our law and, in turn, the Industrial Tribunal lean more towards the protection of the rights of the employee and not the employer.

Therefore, the contention that the rights of the employer are not safeguarded and protected to the same extent as the employee’s is a legitimate one, and what the legislator tends to overlook is the risk factor undertaken by entrepreneurs to keep their undertakings viable with the burden of such social costs. The increase in maternity leave has been perceived by some employers as somewhat one-sided in that it was not counter-balanced by an extension in the minimum period that an employee returning from maternity leave is obliged to work in order to retain the right to the paid maternity leave.

After all, how is social justice being achieved when an employer who pays an employee for not working for 18 weeks is given the questionable consolation that the employee is bound to return to employment for a minimum period of six months after her return? Extending this period to one year could have gone some way towards alleviating this grievance

For further information about how CSB Advocates can help you with your Employment Law and/or Industrial Relations requirements kindly contact us on employment@csb-advocates.com

Find an Employment Lawyer

In all 50 U.S. states, every Canadian province, and over 135 countries. View or print a complete ELA member list by clicking here.

Find an Immigration Lawyer

Facilitate employee transfers around the globe. View or print a complete ELA member list by clicking here.

International Background Checks Summaries

Your free resource summarizing the requirements for pre-employment checks around the world.

Client Successes

Altra Industrial Motion Inc.

Altra Industrial Motion Inc. has multiple locations in the U.S., as well as Central America, Europe, and Asia. The Employment Law Alliance has proved to be a great asset in assisting us in dealing with employment issues and matters in such diverse venues as Mexico, Australia, and Spain. We have obtained excellent results using the ELA network for matters ranging from a multi-state review of employment policies to assisting with individual employment issues in a variety of foreign jurisdictions.

In one instance, we were faced with an employment dispute with a former associate in Mexico that had the potential for substantial economic exposure. The matter had been pending for over a year, and we were not confident in the employment advice we had been receiving. I obtained a referral to the ELA counsel in Mexico, who was able to obtain a favorable resolution of the dispute in only a few days. Based on our experiences with the ELA, we would not hesitate to use its many resources for future employment law needs.

American University in Bulgaria

In my career I have been a practicing attorney, counsel to the Governor of Maine, and CEO of a major public utility. I have worked with many lawyers in many settings. When the American University in Bulgaria needed help with employment litigation in federal court in Syracuse, New York, we turned to Pierce Atwood, the ELA member we knew and trusted in Maine, for a referral. We were extremely pleased with the responsiveness and high quality of service we received from Bond Schoeneck & King, the ELA's firm in upstate New York. I would not hesitate to recommend the ELA to any employer.

David T. Flanagan
Member of Board of Trustees 

Arcata Associates

I really enjoyed the Conducting an Effective Internal Investigation in the United States webinar.  We are in the midst of a rather delicate employee relations issue in California right now and the discussion helped me tremendously.  It also reinforced things that you tend to forget if you don't do these investigations frequently.  So, many, many thanks to the Employment Law Alliance for putting that webinar together.  It was extremely beneficial.

Lynn Clayton
Vice President, Human Resources

Barrett Business Services, Inc.

I recently participated in the ELA-sponsored webinar on the Employee Free Choice Act.  I was most impressed with that presentation.  It was extremely helpful and very worthwhile.  I have also been utilizing the ELA's online Global Employer Handbook.  This compliance tool is absolutely terrific. 

I am familiar with several other products that purport to provide up-to- date employment law information and I believe that this resource is superior to other similar compliance manuals.  I am delighted that the ELA provides this free to its members' clients.

Boyd Coffee Company

Employment Law Alliance (ELA) has provided Boyd Coffee Company with a highly valued connection to resources, important information and learning. With complex operations and employees working in approximately 20 states, we are continually striving to keep abreast of specific state laws, many of which vary from state to state. We have participated in the ELA web seminars and have found the content very useful. We appreciate the ease, cost effectiveness and quality of the content and presenters offered by these web seminars.  The Global Employer Handbook has provided our company with a very helpful overview of legal issues in the various states in which we operate, and the network of attorneys has helped us manage issues that have arisen in states other than where our Roastery and corporate headquarters are located in Portland, Oregon.

Capgemini Outsourcing Services GmbH

As an international operating outsourcing and consulting supplier Capgemini has used firms of the Employment Law Alliance in Central Europe. We were always highly satisfied with the quality of employment law advice and the responsiveness. I can really recommend the ELA lawyers.

Hirschfeld Kraemer

As an employment lawyer based in San Francisco, I work closely with high tech clients with operations around the globe. Last year, one of my clients needed to implement a workforce reduction in a dozen countries simultaneously. And they gave me 48 hours to accomplish this. I don't know how I could have pulled this off without the resources of the ELA. I don't know of any single law firm that could have made this happen. My client received all of the help they needed in a timely fashion and on a cost effective basis.

Stephen J. Hirschfeld
Partner 

Hollywood Entertainment Corporation

As the Vice President for Litigation & Associate General Counsel for my company, I need to ensure that we have a team of top-notch employment lawyers in place in every jurisdiction where we do business. And I want to be confident that those lawyers know our business so they don't have to reinvent the wheel when a new legal matter arises. With more than 3400 stores and 35,000 employees operating in all 50 U.S. states and across Canada, we rely on the ELA to partner with us to help accomplish our objectives. I have been delighted with the consistent high quality of the work performed by ELA lawyers. I encourage other in-house counsel to use their services, as well.

Ingram Micro

Ingram Micro is the world's largest technology distributor, providing sales, marketing, and logistics services for the IT industry around the globe. With over 13,000 employees working throughout the U.S. and in 35 international countries, we need employment lawyers who we can count on to ensure global legal compliance. Our experience with many multi-state and multi-national law firms is that their employment law services are not always a high priority for them, and many do not have experts in many of their offices. The ELA has assembled an excellent team of highly skilled employment lawyers, wherever and whenever I need them, and they have proven to be an invaluable resource to our company.

Konami Gaming

Our company, Konami Gaming, Inc., is growing rapidly in a very diverse and highly regulated industry. We are aggressively entering new markets outside the domestic U.S., including Canada and South America. I have had the recent opportunity to utilize the services provided by the ELA. The legal advice was both responsive and professional. Most of all, the entire process was seamless since our Nevada attorney coordinated the services and legal advice requested. I look forward to working with the ELA in the future, as it serves as a great resource to the legal community.

Jennifer Martinez
Vice President, Human Resources

Nikkiso Cryo, Inc.

Until recently, I was unaware of the ELA's existence. We have subsidiaries and affiliates throughout the United States, as well as in Asia, the Middle East and Europe. When a recent legal issue arose in Texas, our long-time Nevada counsel, who is a member of the ELA, suggested that this matter be handled by his ELA colleague in Dallas. We are very pleased with the quality and timeliness of services provided by that firm, and we are excited to now have the ELA as an important asset to help us address employment law issues worldwide.

Palm, Inc.

The ELA network has been immensely important to our company in helping us address an array of human resources challenges around the world. I strongly encourage H.R. executives who have employees located in many different jurisdictions to utilize the ELA's unparalleled expertise and geographic coverage.

Stacy Murphy
Former Senior Director of Human Resources

Rich Products

As the General Counsel for a company with 6,500 employees operating across the U.S. and in eight countries, it is critical that I have top quality lawyers on the ground where we do business. The ELA is an indispensable resource. It has taken the guesswork out of finding the best employment counsel wherever we have a problem.

Jill K. Bond
Senior Vice President/General Counsel, Shared Services and Benefits

Ricoh Americas Corporation

We have direct sales and service offices all over the U.S., but have not necessarily had the need in the past for assistance with legal work in every state where we have a business presence. From time to time, we suddenly find ourselves facing a legal issue in a state where we have no outside counsel relationship. It has been a real benefit to know that the ELA has assembled such an impressive team of experts throughout the U.S. and overseas.

A few years ago, we faced a very tough discrimination lawsuit in Mississippi. We had never had to retain a lawyer there before. I was absolutely delighted with the Mississippi ELA firm. We received an excellent result. They will no doubt handle all of our employment law matters in Mississippi in the future. I have also obtained the assistance of several other ELA firms around the U.S. and have received the same outstanding service. The ELA is a tremendous resource for our company.

Roberts-Gordon LLC

Our affiliated companies have used the Employment Law Alliance in connection with numerous acquisitions, and have always been extremely pleased with our ability to obtain the highest quality legal advice on due diligence issues from jurisdiction to jurisdiction. We have found the Employment Law Alliance firms to be not only first rate with respect to their legal advice but also responsive and timely in assisting us with federal and state law issues critical to our due diligence efforts. We consider the Employment Law Alliance to be an important part of our team.

Rockwell Collins, Inc.

We have partnered with many ELA firms on the development and execution of case management strategies with very positive results. We have been very pleased with the legal advice and counsel provided by the law firms we have utilized who are affiliated with the Employment Law Alliance. The ELA firms we have worked with are customer focused, responsive, and thorough in their approach to handling labor and employment law matters.

Elizabeth Daly
Assistant General Counsel

Sanmina-SCI

Sanmina-SCI has facilities strategically located in key regions throughout the world. Our customers expect that we will provide them with the highest quality and most sophisticated services in the marketplace. We have that same expectation for the lawyers with whom we do business. With operations in 17 countries, we need to be certain that we have a team of lawyers working together to address our employment law needs worldwide. The ELA has delivered exactly what it promised-- seamless and consistent high quality services delivered in each locale around the globe. It has quickly become a key asset for our human resources department.

Starwood

We own, manage, and franchise hotels throughout the U.S. and in more than 90 countries. With more than 145,000 employees worldwide, ensuring that we comply with the complex web of local labor and employment laws in every one of these jurisdictions is a daunting task. The Employment Law Alliance has served as an important resource for us and we have benefited greatly from its expertise and long reach. When a legal dispute or issue has arisen in some far-flung place, Employment Law Alliance lawyers have always provided responsive, practical, and cost-effective assistance.

Wilmington Trust Corporation

Wilmington Trust has used the ELA to locate firms in California, Washington State, Georgia, and Europe. Our experience with the ELA lawyers with whom we have worked has always been one of complete satisfaction and prompt, practical advice.

Michael A. DiGregorio
General Counsel  

Loading...