Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.

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4. Results: Answers
Labour and Employment
2.
Employment rights and representations
2.1
What, if any, are the rights to parental leave, at either a national or local level?
Malta

Answer ... The minimum parental leave entitlement for private and public sector employees is currently regulated by the Parental Leave Entitlement Regulations (SL 452.78), which is in addition to the entitlements to urgent family leave, maternity leave, paternity leave, adoption leave and IVF leave.

It is expected that these regulations will be amended in view of the new EU directive on work-life balance for parents and carers, adopted by the European Council on 13 June 2019. Member states have three years to transpose this directive into local legislation from the date of its entry into force. It envisages that an individual will have a right to four months of parental leave, of which two months are non-transferable between the parents and are to be paid. The level of payment and the age limit of the child are yet to be established, as the directive leaves this as a matter to be determined by EU member states. (The new directive also aims to introduce a minimum of 10 working days of paternity leave, a new form of carers’ leave and an extended right for employees and carers to request flexible working arrangements.)

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
2.2
How long does it last and what benefits are given during this time?
Malta

Answer ... Currently, subject to certain procedural requirements, in the private sector both male and female workers have the individual right to be granted unpaid parental leave in case of birth, adoption, fostering or legal custody of a child, to enable them to take care of that child for a period of four months until the child has reached the age of eight years.

Parental leave can be availed of in established periods of one month each. An employee must have at least 12 months’ continuous service with the employer to be eligible to apply for parental leave, unless a shorter period is agreed to.

Unless otherwise prescribed in a collective agreement, the employer with the employee may decide whether to grant the parental leave on a full-time or part-time basis, in a piecemeal way or in the form of a time credit system. If the parental leave is not availed of or there is still an existing balance of parental leave, an employee shall remain entitled to such leave even if there is a change in employer or in the employment of the employee.

During parental leave, the employee remains entitled to all rights and benefits which may accrue to other employees of the same class or category of employment at that same place of work, including to apply for promotions.

An employee who exercises the right to avail of parental leave shall be entitled to return to the same job occupied prior to the granting of parental leave or, where this is no longer possible for any valid reason, to an equivalent or similar job consistent with the original contract of employment of the employee. On return, the employee may request changes to his or her working hours and patterns for a specific period; the employer is bound to consider and respond to such requests, taking into account both its needs and the employee’s needs.

Notice of termination of employment may be given during parental leave; however, the reason for termination cannot be that the employee applied for, or enjoyed, parental leave.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
2.3
Are trade unions recognised and what rights do they have?
Malta

Answer ... Trade unions are regulated in Malta and will enjoy a certain degree of protection from liability during the course of their legitimate activities, mainly when acting in contemplation or furtherance of a trade dispute. The responsibilities, privileges and obligation of the unions are regulated in the Employment and Industrial Relations Act (Cap 452). This provides for exceptions to industrial disputes in relation to certain industries which are considered to be essential services.

The act also provides for the safeguarding of employees when they follow the directives of a union in contemplation or furtherance of a trade dispute. All employees have the option to be represented at work by a workers’ union, this being recognised as a fundamental human right in terms of the Constitution of Malta.

The formation of trade unions is regulated by law, as is the process for an employer to recognise a union to bargain conditions on behalf of employees. Typically, only employers with large workforces and parastatal companies have a strong union or employee representative presence. Recognition of unions in the public and private sector is regulated by the Recognition of Trade Unions Regulations (SL 452.112).

Where there exists no recognised union within a place of work, the law grants rights to employee representatives elected from among the employees. In certain instances, the law provides that employee representatives are entitled to receive information and to be consulted by the employer. Employee representatives and unions do not (unless expressly provided for in an agreement with them) enjoy any voting or decision-making rights.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
2.4
How are data protection rules applied in the workforce and how does this affect employees’ privacy rights?
Malta

Answer ... Data protection in Malta is regulated primarily by the EU General Data Protection Regulation (GDPR), together with the Data Protection Act (Chapter 586) and subsidiary legislation enacted thereunder. These are to be read with the Constitution of Malta, which recognises the fundamental right to privacy.

As a rule, employees enjoy a degree of privacy in the workplace and may apply for the various rights provided in the GDPR (eg, the rights to information, access, rectification and deletion). Such rights are conditional on the satisfaction of certain criteria and subject to certain derogations. In fact, employers are likely to be able to process personal data of their employees (including a degree of monitoring), in that data protection law recognises that personal data may have to be processed on several grounds, including in the case of performance of a contract, if required by law or if there is a legitimate interest that is not overridden by the rights of others. It is necessary to demonstrate compliance, which requires the ability to prove that:

  • there is a fair and proportionate balance of rights;
  • the processing is necessary to achieve legitimate purpose/s; and
  • it is all done transparently.

Data protection law is a complex and subjective area of law which employers must grapple with. Awareness of employee rights in the privacy context is on the increase and is likely to become a more relevant subject in disputes between employers and employees.

Other than such general laws, there are no employment-specific regulations which expressly regulate the processing of personal data in the employment context and/or which affect the privacy rights of employees.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
2.5
Are contingent worker arrangements specifically regulated?
Malta

Answer ... The engagement of contingent workers (eg, freelancers, independent contractors and consultants) is permissible and as such is not regulated, except for the general rules of contract law, tort and commercial law.

That said, the Employment Status National Standard Order (SL 452.108) is intended to regulate against abuse by bogus self-employment. The order provides that when an individual is engaged to provide services, if five out of eight defined conditions are satisfied, then the relationship between the client and the individual shall be deemed to be an employment relationship, notwithstanding any statement to the contrary.

Individuals may be afforded protection under the Employment and Industrial Relations Act if at least five of the following conditions are satisfied:

  • The individual depends on one party for which work is performed for at least 75% of his or her income over a one-year period.
  • The individual depends on such party to determine what work is to be done and how it should be carried out.
  • The individual performs the work using equipment, tools and machinery provided by such party.
  • The individual is subject to a working time schedule or minimum work periods established by such party.
  • The individual cannot sub-contract his or her work to other individuals or substitute himself or herself when carrying out the work.
  • The individual is integrated in the structure of the production process, the work organisation or the company’s or other organisation’s hierarchy.
  • The individual’s activity is a core element in the organisation and pursuit of the objectives of such party.
  • The individual carries out similar tasks to existing employees or to those formerly undertaken by employees.

The order may have far-reaching implications, since the employer is obliged to grant such an employee the same wages as are paid to comparable employees or, if there are no such employees, the same wage which that employee received when self-employed. The employer will be obliged to grant the same conditions of employment enjoyed by comparable employees or, if there are no such employees, the applicable minimum conditions of employment. Where five conditions appear to be satisfied in practice, there is little one can do to escape the automatic presumption at law that an indefinite employment contract exists, irrespective of any declaration to the contrary.

The rules contained in the Employment Status National Standard Order do not apply to persons who provide services to the public service or public sector. However, such persons may be entitled to compensation in terms of this order if they prove to the Industrial Tribunal that, had it not been for the inapplicability of these rules to the public service or public sector, their relationship would have been one of employment due to five of the conditions being satisfied.

For more information about this answer please contact: Paul Gonzi from Fenech & Fenech Advocates
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Labour and Employment