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The Maltese legislator is currently tasked with the implementation of the International Labour Organization Convention C190, the Violence and Harassment Convention ("the ILO Convention").
As the law currently stands, the concept of violence at the place of work is inexistent, while the offence of harassment has a narrow meaning within the employment context. Indeed, while the Employment and Industrial Relations Act (CAP 452) refers to harassment within the context of sexual discrimination, the secondary law, being the Equal Treatment in Employment Regulations, refers to harassment on the basis of any one of the grounds of discrimination addressed therein, and to sexual harassment.
The ILO Convention
This Convention aims to eliminate violence and harassment in the world of work, including gender-based violence. It recognizes such behaviors as human rights violations that harm individuals' physical, psychological, sexual, and economic well-being, as well as workplace productivity and equality. Violence and harassment are defined as unacceptable behaviors or threats causing harm, including gender-based violence and harassment. The Convention protects all workers, regardless of contractual status, including employees, trainees, volunteers, jobseekers, and employers, and applies to all sectors within different environments, including workplaces, work-related locations, employer-provided accommodations, and during commutes or work-related communications.
The Convention urges its signatories to prohibit violence and harassment in law, identify high-risk sectors, and require employers to implement workplace policies, assess risks, and provide training. In parallel, States must of course monitor compliance, provide accessible remedies, protect privacy, ensure sanctions, and address domestic violence impacts on work.
The Proposed new Article 29 A of EIRA
The proposed Article 29A starts by expressly prohibiting violence and harassment in a work environment and makes it incumbent on all employees and employers to respect each other's right to a work environment free from violence and harassment.
What immediately strikes the reader is the vast definition of employee for the purpose of article 29A. Indeed, an employee is defined as an employee as regulated by EIRA, but also includes –
- a person in training, that is, interns, trainees, and apprentices, irrespective of whether the work is regulated by a contract, or the person is paid or unpaid;
- a person whose employment has been terminated;
- a volunteer in terms of the Voluntary Organisations Act, even when such work or service is not regulated by a specific contract of service;
- a person who is a prospective employee on the basis that he is seeking employment;
- a person who is a prospective employee on the basis that he is an applicant for employment; and
- a person who is a prospective employee on the basis that he is a candidate for employment.
On the same lines as the ILO Convention, the work environment has also been given a rather wide definition, since it includes
- any workplace, including any space where work duties are performed, irrespective of its nature and whether it is public or private;
- any place where the worker is paid, takes a rest break or a meal, or makes use of sanitary, washing and changing facilities;
- any work-related trip, travel, training, events or social activities;
- work-related communications, including those carried out using information and communication technologies;
- any accommodation provided by the employer; and
- any trip when a person commutes to and from work.
The Legislator is defining "violence and harassment" as unacceptable behaviour, practices and omissions, or threats thereof, whether a single occurrence or repeated, that target, result in, or are likely to result in, physical, psychological, sexual or economic harm or suffering, and includes gender-based violence and harassment. It must be noted that gender-based violence and harassment is one element of the concept of violence and harassment in the general sense. Thus, there is no gender restriction when it comes to the application and enforcement of the proposed new law.
The crux of the new law lies in its direct reference to the illegality. Indeed, it states that it shall not be lawful for an employer or an employee to act towards an employee, the employer, another employee or a prospective employee in a manner that is equivalent to violence and harassment in a work environment. Such actions may take any form, including but not limited to, requests, conduct, behaviour or interactions, whether physical, remote or online, and whether expressed orally, in writing, through images or by any other means or materials. The illegality is not limited to direct action by the persons mentioned above but extends to inaction. In this way, the law specifies that it shall not be lawful for an employer or an employee to give rise to a circumstance or create an environment that permits or could permit violence or harassment in a work environment, or that may cause an employee, the employer, another employee or a prospective employee to feel uncomfortable or intimated, or to be subjected to an offensive or abusive atmosphere, or that breaches their right to a work environment free from violence and harassment.
Article 29A will enable the victim to seek redress through the Industrial Tribunal in the same way as victims of discrimination. Moreover, a breach of article 29A will constitute a criminal offence, and if found guilty, the perpetrator shall be liable on conviction to imprisonment for a term from six months to two years or to a fine (multa) of not less than five thousand euro (€5,000) and not more than ten thousand euro (€10,000), or to both such fine and imprisonment.
Conclusion
Violence and harassment in the workplace are not inevitable, they are preventable. Eliminating them will now be a legal obligation, which will be written black on white in our main employment law. Violence and harassment impact employee well-being, productivity, and trust. Thus, there is a commitment that employees, in the broadest sense of the word, enjoy work environments where they feel safe, respected, and valued and a commitment to have workplaces where dignity is protected and everyone has the opportunity to thrive.
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.
