Transparent and Predictable Working Conditions Regulations

Last Updated on Thursday, 1 December, 2022 at 11:32 am by Andre Camilleri

Emma Fenech is an advocate with David Zahra & Associates Advocates

The Transparent and Predictable Working Conditions Regulations came into force through Legal Notice 267 of 2022 on 21 October (hereinafter referred to as the “Regulations”).

The Regulations apply to all employment relationships with effect from 1 August 2022.

The primary scope of the Regulations is to transpose Directive (EU) 2019/1152 of the European Parliament and of the Council of 20 June 2019 regarding transparent and predictable working conditions in the European Union into Maltese law. The directive sets out the minimum requirements relating to working conditions applicable to every worker in the European Union who has an employment contract or similar arrangement.

This article aims to provide insight about the salient points that emanate from the Regulations, being essentially the introductions and changes introduced with the aim of striking a balance between guaranteeing stable and transparent working conditions to workers and simultaneously allowing for reasonable flexibility in the sphere of non-standard employment arrangements.

Information to be provided to employees

Each employer is dutybound to inform workers of the essential aspects that govern the employment relationship. Despite this already being a requirement in accordance with the Information to Employees Regulations (S.L. 452.83), which has now been repealed, the Regulations have added upon the information to be provided to workers.

In fact, a non-exhaustive list of the information to be provided to workers is clearly outlined in the Regulations and includes the identification details of the employer, the place of work, a description of the work expected to be performed, the commencement date of employment, the duration and conditions of the probationary period, any training entitlement, the amount and different categories of leave to which a worker is entitled or where this cannot be indicated, the procedures for allocating or determining such leave and the remuneration payable among other factors.  

The provision of such information must be made in writing. This may either be incorporated into the employment contract or alternatively provided to the employee in paper format or in any other form that may be stored and printed by the employee provided that the employer retains proof of transmission or receipt in electronic form.

The Regulations differentiate between the degree of importance of the information to be provided such that certain information must be provided by not later than the seventh calendar day from the first working day of employment (such as the commencement date of employment and the nature of work) while other information must be provided by not later than the first month anniversary from the commencement of employment (such as the duration and conditions of the probationary period and training entitlement).

In this regard, it is noteworthy to highlight that any training required to be provided by the employer shall be provided to the worker free of charge, shall count as working time and where possible shall take place during working hours.

Moreover, the Regulations echo the existing principles in relation to workers required to work in a country outside Malta for a period exceeding four consecutive weeks. In such scenarios, the employer must provide the required information to the employee before departure and must also stipulate the country or countries in which the work is to be performed and its anticipated duration, the currency to be used for remuneration purposes, any benefits in cash or kind and information and conditions governing the worker’s repatriation if applicable.

Records to be kept by employers

Apart from the information to be provided to employees, the Regulations also oblige employers to keep record of specific details in respect of each worker, to be maintained in a register or registers for such purpose.

The only addition in this regard is the requirement to keep record of the periods of leave accorded to the worker. Otherwise, the list of information to be retained by the employer emanated from previous statutory obligations and should therefore come as no surprise to employers.

Employers are obliged to furnish the Director General responsible for Employment and Industrial Relations with any information that may be requested in connection with the conditions of employment of the worker.

Modifications of employment relationship

The Regulations stipulate that following the commencement of employment, no amendments to the conditions of employment are permissible. The only exceptions to this general rule are any changes required by laws, regulations or collective agreements or due to the application of a temporary measure in accordance with the Employment and Industrial Relations Act (Cap. 542 of the laws of Malta) that may be applied by the employer with the agreement of the employee in cases of redundancy.

This general prohibition has raised several questions and concerns. Are alterations to the employment conditions that are mutually agreed upon by the employer and the worker also prohibited? What about any changes that benefit the worker such as an increase in wages?

Prohibition of zero-hour contracts

The Regulations introduced a statutory definition of a zero-hour contract as referring to contracts of employment or other working arrangements which involve a worker being expected to be available for work without being guaranteed a minimum number of hours and only remunerated on the basis of the hours actually worked.

Such working arrangements are common in industries requiring flexibility such as the hospitality and healthcare sectors as well as on-demand employees such as food delivery couriers.

In attempt to safeguard predictable and stable working conditions for the employee, the use of zero-hour contracts is expressly prohibited saving for two specific exceptions. Firstly, such employment contracts are allowed in instances where the nature of the work requires the availability of replacement workers on short notice provided that the zero-hour contract does not constitute the whole-time employment of an individual. Secondly, this working arrangement is allowed in instances where the worker is a full-time student. However, in the event that the student is also a whole-time worker, the latter status shall prevail.

Parallel employment

Employers ought to be mindful that they may not prohibit a worker from taking up employment with other employers, including providing services to competitors, outside the work schedule.

Having said so, an employer is indeed permitted to prohibit a worker from taking up employment with other employers on the basis of objective grounds, such as the protection of business confidentiality, health and safety considerations and the avoidance of conflicts of interest.

Minimum predictability of work

One of the key introductions brought about by the Regulations is the imposition of thresholds to safeguard a degree of work predictability. In instances where the work pattern is largely unpredictable, a worker may only perform such type of work provided that the worker is notified of the work assignment within a reasonable period of time as defined in the Regulations and that the work takes place within a predetermined timeframe.

Having said so, a worker who has completed at least six months of service with an employer and successfully completed the probationary period is entitled to request the employer to provide a form of employment with more predictable and secure working conditions, where available.

The employer is obliged to provide a written reasoned reply within one month from the request being made. Interestingly, the time period within which to provide the written reply is extended to three months in the event that the employer is a natural person acting as a small or medium enterprise.

Remedies available to the worker

A worker who does not receive all or part of the relevant information in due time may lodge a complaint to the Director General responsible for Employment and Industrial Relations, who following an investigation shall order the employer to source the worker with the missing information.

Where the employer is found to be in breach of the worker’s rights, the employer shall be liable to a fine (multa) of not less than €450.

In the case of infringements of any rights arising from the Regulations, a worker shall also have the right to dispute resolution and a right to redress by lodging a complaint to the competent authorities. Such rights shall survive the termination of employment.

Lastly, any worker dismissed from employment for refusing to comply with a requirement imposed by the employer in contravention of the Regulations, shall be regarded as being unfair dismissal. In such scenarios, the worker may request the employer to provide duly substantiated grounds for dismissal, in writing, and would also be entitled to present a complaint to the Industrial Tribunal.

Ultimately, the spirit of Directive (EU) 2019/1152 as transposed through the Regulations is to address the inadequate protection for workers in more precarious jobs and afford workers with broader rights, while simultaneously maintaining sufficient leeway to be able to adapt to an ever-changing and developing labour market.

The contents of the article are intended for general informational purposes and shall not constitute legal advice.

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