Amendments to the Posting of Workers in Malta Regulations

NEWS

13 Jul 2020

On the 26th of June 2020, the Government of Malta issued Legal Notice 262 of 2020, entitled the Posting of Workers in Malta (Amendment) Regulations, 2020, which regulations shall come into force on the 30th of July 2020.

Posted workers, that is, individuals hired by employers based in a European Union Member State, whereby such individuals are sent on a temporary basis to carry out work in another European Union Member State, are already regulated by way of Subsidiary Legislation 452.82 of the laws of Malta.

Legal Notice 262 of 2020 shall serve as a supplement to the posting of workers legislation already in place in Malta, which legislation seeks to offer all posted employees equal access to employment rights and health and safety rights under Maltese law. The current legislation also ensures that the conditions of work which are provided to posted employees whilst working in Malta shall not be less than the minimum conditions of work that are generally applicable by virtue of law to a comparable employee employed within the same place of work.

Nevertheless, Legal Notice 262 of 2020, seeks to introduce various amendments to the current legislation to guarantee further rights and conditions to employees posted to Malta.

First and foremost, the amendment put in place through the aforementioned legal notice, confirms that the current legislation shall not in any way affect the exercise of fundamental rights for posted workers, which rights include the right or freedom to strike or to take legal action, and the right to negotiate, conclude and enforce collective agreements, or to take collective action.  

Furthermore, the legal notice puts forward a new obligation on all foreign service providers, the undertaking or agency posting workers to Malta, this in view to guarantee that posted workers are provided with the appropriate terms and conditions of employment in line with the Temporary Agency Workers Regulations (S.L. 452.106). The Malta company where the employees are being posted is obliged to provide such information to the foreign service provider who will be undertaking the posting of employees to Malta.

The aforementioned terms and conditions which the foreign service provider is to provide to its posted employees is to include the following:

  • Maximum work periods and minimum rest periods as applied to various classes of employees;
  • Minimum paid annual holidays as applied to various classes of employees;
  • Remuneration, including overtime rates as applied to various classes of employees, provided that supplementary occupational retirement pension schemes shall be excluded;
  • The conditions of hiring-out of workers, in particular the supply of workers by temporary employment undertakings;
  • Measures in accordance with the laws of Malta relating to health, safety and hygiene at work;
  • Protective measures in accordance with the laws of Malta with regard to the terms and conditions of employment protecting pregnant women or women who recently gave birth;
  • Protective measures in accordance with the laws of Malta with regard to terms and conditions of employment protecting children and young people;
  • Equality of treatment between men and women and other provisions of non-discrimination in accordance with the laws of Malta;
  • The conditions of workers’ accommodation where this is provided by the employer, to workers who are away from their regular place of work; and
  • Allowances or reimbursement of expenditure to cover travel, board and lodging expenses where this is provided by the employer to workers away from home for professional reasons, provided that this shall apply exclusively to travel, board and lodging expenditure incurred by posted workers where they are required to travel to and from their regular place of work in the Member State to whose territory they are posted to Malta, or where they are temporarily sent by their employer from that regular place of work to another place of work.

Moreover, Legal Notice 262 of 2020 has introduced a further obligation on the foreign service providers, whereby where the effective duration of a posting exceeds 12 months, the foreign service provider shall guarantee, on the basis of equality of treatment, workers who are posted to Malta, in addition to the terms and conditions of employment abovementioned, all the applicable terms and conditions of employment by virtue of the Employment and Industrial Relations Act, or any regulations or orders issued thereunder, provided that this will not be applicable to:

  • The terms and conditions related to the conclusion and termination of the employment contract; and
  • Supplementary occupational retirement position schemes.

The changes introduced to S.L. 452.106 by virtue of Legal Notice 262 of 2020, seek to further regularize and provide additional equality measure rights to those which are already established by law, to workers posted to effect work in Malta on a temporary basis.