A foreign employer established within an EU/EEA country, who sends employees who usually do not work in Malta to work for a limited period of time in Malta, is deemed to be posting workers locally. Such posting shall be done according to the required terms and conditions and procedures.
Posting of Workers in Malta is regulated by the Posting of Workers in Malta Regulations, 20161 regulations (S.L. 452.82). Such regulations shall apply only to foreign undertakings that:
- Send contracted employees to work, according to the agreed instructions of the undertaking, making the posting and the posted worker and for a limited time in Malta whilst having in place a formal agreement between the undertaking making the posting and the undertaking receiving the service. Furthermore, a valid employment agreement shall be fully executed between the posted worker and the undertaking receiving the services.
- Send contracted employees to provide a service in Malta to an establishment/undertaking which is owned by the undertaking making the posting. A fully executed employment agreement between the undertaking making the posting and the posted worker shall be put into effect;
- Being temporary employment undertakings or placement agencies, hire out a worker to a user undertaking established or operating in Malta. A fully executed employment agreement between the temporary employment undertaking, or placement agency, and the worker shall be in effect during the entire period of posting.
Any posted worker shall receive the same level of work benefits and conditions as those being enjoyed by comparable employees in the same place of work and thus, shall also have equal access to employment rights and health and safety rights under Maltese law.
In case of what is usually referred to as ‘long term posting', where the duration of the relevant posting exceeds twelve months, or eighteen months in case where a motivated notification is submitted, the posting relationship shall be entirely subject to the laws and regulations, including obligations, duties and benefits according to the Laws/Regulations or any other guidance notes issued in Malta, as the host Member State. This shall not apply to dismissal and supplementary occupational retirement pension schemes.
Whilst being posted in Malta, a worker being posted from an undertaking from an EU/EEA country shall not require a work permit to carry out work in Malta. On the other hand, if a third country national (non-EU) is posted in Malta from an EU/EEA country, the former shall require a work permit unless s/he is already in possession of a valid work permit issued in the EU/EEA country where the posting undertaking is established.
In case of an intention to post a worker in Malta (of whatever nationality and from any EU/EEA country), a notification to the Director of Industrial and Employment Relations (DIER) shall always be submitted.2 The notification is an online form and a list of required documentation (such as a copy of the contract of employment) is required. Moreover, it is important that such notification is submitted to the DIER at latest on the commencement day of the posting – ideally beforehand.
1 Subsidiary Legislation 452.82 – Posting of Workers in Malta Regulations
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.