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Terms and Conditions of Employment

Submitted By Firm: CSB Advocates

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

Author(s):

Date Published: 10/8/2013

Article Type: Legal Article

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Terms and Conditions of Employment

What are the main sources of employment law?

The Employment and Industrial Relations Act - Chap 452 of the Laws of Malta (EIRA) represents Malta’s primary source of employment law, including conditions of employment, protection against discrimination and industrial relations. This statute was enacted in 2002 with a view towards consolidating the previous primary sources of employment law namely the Conditions of Employment (Regulation) Act (Chap. 135 of the Laws of Malta) and the Industrial Relations Act (Chap 266 of the Laws of Malta).

There are a number of regulations made under the EIRA, the majority of which serve to implement EU regulations and directives, fleshing out the basic legal framework provided by the EIRA. The conditions of employment of many industry-specific sectors are regulated by “Wage Regulation Orders” serve to supplement the EIRA and which represent administrative regulations regulating certain conditions of employment for specific sectors, such as for example professional offices and wholesale and retail trades.  The conditions specified in these Orders include inter alia maximum hours of work, minimum wages, overtime rates, sick leave and special leave. At present, there are 31 different Wage Regulation Orders in force.

Members of the public service have their conditions of employment regulated by means of the Public Service Management Code or “PSMC” which was introduced in 2002 to replace the EstaCode. This code falls within the competence of the Management and Personnel Office (the former Establishments Division) within the Office of the Prime Minister.

What types of worker are protected by employment law? How are different types of worker distinguished?

All employees are covered by the EIRA and consequently all workers. We may classify workers to be either employed or self-employed.  Workers may either work whole time, part time or whole time with reduced hours.

Employed workers/employees are defined as persons who have entered or work under a contract of service under the immediate direction and control of another person or company.

Self-employed workers are those who perform work on their own account for more than one person or company.

The Employment Status National Standard Order (S.L. 452.108), has provided for a test in order to verify whether the relationship between an employer and employee is an employment one or one of consultancy (self-employment). If at least five of the following criteria are satisfied in relation to the person performing the work, the relationship is one of employment:

  1. he depends on one single person for whom the service is provided for at least 75% of his income over a period of one year;
  2. he depends on the person for whom the service is provided to determine what work is to be done and where and how the assigned work is to be carried out;
  3. he performs the work using equipment, tools or materials provided by the person for whom the service is provided;
  4. he is subject to a working time schedule or minimum work periods established by the person for whom the service is provided;
  5. he cannot sub-contract his work to other individuals to substitute himself when carrying out work;
  6. he is integrated in the structure of the production process, the work organisation or the company’s or other organisation’s hierarchy;
  7. the person’s activity is a core element in the organization and pursuit of the objectives of the person for whom the service is provided; and
  8. he carries out similar tasks to existing employees, or, in the case when work is outsourced, he performs tasks similar to those formerly undertaken by employees.

Whole time employees are those who work a minimum of a 40 hour week and their employment is the principal employment.

Whole-time employees with reduced hours are defined as whole-time employees who, in agreement with their employer, work for less than 40 hours, provided that such employment is the principal employment of the employee in respect of which social security contributions are payable.

Part-time employees are defined as employees whose normal hours of work, calculated on a weekly basis or on an average over a period of employment of up to one year, are less than the normal hours of work of a comparable whole-time employee. Part-time employees are therefore those that work less than a 40 hour week.

There is no significant distinction between whole-time employees with reduced hours and part time employees, since it is clear that if the employment is the principal employment, employees get pro rata benefits.  When determining whether an employee is a part time employee or a whole time employee with reduced hours, one must only establish if the employment is the sole employment of the employee. If the employee has more than one employment, the employee shall be deemed to be a part time employee.

Do contracts of employment have to be in writing? If not, do employees have to be provided with specific information in writing?

In accordance with the Information to Employees Regulations (Subsidiary Legislation 452.83) if the period of employment exceeds one month and the employee’s working hours exceed eight hours per week, the employer is bound to give the employee within 8 working days from the commencement of employment, either (i) a written contract of employment, or (ii) a written statement of minimum conditions, which must be furnished to the employee. Such information is expected to include such basic information such as the normal rates of pay, overtime rates, hours of work, place of work and leave entitlement. Wages should be paid at regular intervals not exceeding 4 weeks in arrears. Different periods of pay can be agreed in a collective agreement.

Practice is for employees to be given a contract prior to the commencement of work.

Are any terms implied into contracts of employment?

Under Maltese law the default probationary period is 6 months and in the case that probation is not specifically excluded from the period of employment, the 6 month period will apply.

Are any minimum employment terms and conditions set down by law that employers have to observe?

The minimum conditions in terms of Maltese law which have to be observed by employers are as follows:

Hours of Work - The maximum average weekly working time must not exceed 48 hours over a 7-day period, unless otherwise agreed between the employee and the employer.  A standard working week is of 40 hours, whilst an additional 8 hours represent overtime.

Night Work - A night worker’s normal hours of work must not exceed an average of 8 hours in any 24-hour period.

Minimum Daily Rest – A worker is entitled to a minimum daily rest of 11 consecutive hours per 24-hour period during which the worker performs work for his employer.

Rest Breaks - Where a working day is longer than six hours, employee is entitled to an uninterrupted rest break of at least 15 minutes.

Minimum Weekly Rest – A worker is entitled to an uninterrupted weekly rest of 24 hours in each 7-day period during which the worker works for his employer.

Vacation Leave with Full Pay – A worker is entitled to vacation leave of four working weeks and four working days (24 days, based on a 40-hour working week).  The annual leave of employees that work less than 40 hours is calculated pro rata. If the employee is employed for less than 12 months, vacation leave is calculated pro rata.

National Holidays and Public Holidays - Every whole-time employee shall be entitled to the national holidays and to all public holidays with full pay (save for the national and public holidays which fall on a weekend).

Maternity Leave - A pregnant employee may apply for maternity leave for an uninterrupted period of fourteen weeks and this uninterrupted period may increase to eighteen weeks upon request by the employee. An employee on maternity leave shall be entitled to the first fourteen weeks of maternity leave with full wages but if the employee chooses to avail herself of any additional maternity leave beyond the fourteen weeks, the employer shall not be obliged to pay any wages for those weeks of maternity leave which go beyond the aforementioned fourteen weeks, without prejudice to any relevant benefit in respect of any period of maternity leave which goes beyond fourteen weeks in terms of the Social Security Act to which the employee may be entitled if she chooses to avail herself of maternity leave beyond the paid fourteen weeks

Sick Leave – The amount of sick leave varies according to the relevant sector of industry.  The applicable amount of sick leave entitlement is provided in the relevant Wage Regulation Order that regulates the specific sector or where the sector is not covered by a Wage Regulation Order, employees are entitled to sick leave, of two working weeks as sick leave in every calendar year without loss of wages (calculated in hours).

Urgent Family Leave - 15 hours per annum with full pay-deductible from vacation leave entitlement may be availed of.

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

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

The abovementioned periods of ‘Special Leave’ may be different depending on whether the industry in question is regulated by a Wage Regulation Order. 

To what extent are terms and conditions of employment agreed through collective bargaining? Does bargaining usually take place at company or industry level?

The EIRA provides for collective agreements to be negotiated between “an employer, or one or more organisations of employers, and one or more organisations of employees regarding conditions of employment in accordance with the provisions of any law in force in Malta”. In practice collective agreements are normally negotiated between a single employer and one or possibly two unions.

Collective bargaining in Malta takes place at company level at least in the private sector. Only the public sector normally negotiates common conditions across a range of workplaces. With no agreements at industry level in the private sector, the number of employees covered by collective bargaining is broadly in line with the number of employees who form part of a union.

Collective agreements bind the employer party to the agreement and the members of the trade union negotiating on the employees’ behalf. Individuals not belonging to the trade union in question may also agree to be governed by the terms of the collective agreement.

Collective agreements would include provisions relating to the normal rates of pay, overtime rates, hours of work, place of work and leave entitlement.

It is noteworthy that in Malta, pay increases are adjusted in accordance with the cost-of-living index and are implemented through national standard orders. Collective agreements would generally include the cost-of-living forecasts on which pay increases are based, and if the increase in the agreement is less than the cost-of-living adjustment, the pay must be increased by an additional amount to make up the difference.

The employment of workers who are not covered by collective agreements are covered by minimum conditions of employment set out in the Wage Regulation Orders.

Employee Representation and Industrial Relations

Discrimination

Maternity and Family Leave Rights

Business Sales

Termination of Employment

Protecting Business Interests Following Termination

Court Practice and Procedure

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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

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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

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Wilmington Trust Corporation

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Michael A. DiGregorio
General Counsel  

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