Posting of Workers in Malta
Posting of Workers in Malta
To guarantee that the rights and working conditions are protected throughout the European Union, and to safeguard against any abuse which may occur, the EU has issued the Posted Workers Directive 96/71/EC (amended by Directive (EU) 2018/956), which provides for the core mandatory rules regarding the terms and conditions of employment to be applicable to an employee posted to work in another Member State.
The above-mentioned directive has been transposed into Maltese law in 2020 with the amendments made to the Subsidiary Legislation 452.82, entitled “Posting of Workers in Malta Regulations” (hereinafter referred to as the “Subsidiary Legislation”). This Subsidiary Legislation applies to all foreign undertakings which:
- send posted employees to Malta on their behalf and under their direction, pursuant to a contract between the undertaking making the posting and the party for whom the services are intended, provided that the undertaking making the posting and the worker has an employment relationship during the period of posting; or
- send posted employees to a foreign enterprise's establishment or undertaking in Malta, provided that there is an employment relationship between the foreign undertaking and the worker during the period of posting; or
- being temporary employment undertakings or placement agencies, hire out a worker to a user undertaking established or functioning in Malta, provided the temporary employment undertaking, or placement agency, and the worker has an employment connection throughout the term of posting.
The Subsidiary Legislation emphasizes that all posted employees must be treated equally to other comparable employees and have equal access to employment and health and safety rights under Maltese law. The Subsidiary Legislation also and seeks to avoid situations whereby service providers try to undercut other foreign service providers with poorer labour standards.
Equality of Treatment
The Subsidiary Legislation provides that the conditions of posted employees while working in Malta shall not be less than the minimum conditions of work that are applicable to comparable employees working in the same working place. Such minimum conditions include:
- maximum work periods and minimum rest periods as applied to various classes of employees;
- minimum paid annual leave 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 from such remuneration;
- 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 with regard to the terms and conditions of employment protecting pregnant women or women who have recently given birth;
- protective measures in accordance with the laws of Malta with regards 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;
- 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.
Notification and the requirement of a Working License
The posted worker may in some cases be required to obtain a working license in Malta. In cases where the posted worker is an employee being posted from an EU/EEA country, a working license would not need to be obtained in Malta. Likewise, in the case of a third country national (TCN) employee who is employed by a posting undertaking that is established in an EU/EEA country, there would also be no need to go through a working licence procedure in Malta, provided that such posted worker already holds a working licence issued in the country where the posting undertaking is established.
However, in the case of a third-party national who is posted in Malta by an undertaking established outside an EU/EEA country, the third party national would be obliged to obtain a working licence issued by Jobsplus.
In any case, the undertaking intending to post a worker to Malta is obliged to notify the Director of Industrial and Employment Relations (DIER) of such intention. The 'Notification of a Posted Worker to Malta' form, accompanied with a copy of the posted worker’s employment contract (with the posting undertaking) and, in the case of a Third Country National posted employee from an EU/EEA country, with a copy of his existing working licence, should be sent to DIER prior to the commencement of the posting.
The undertaking making use of the services of the posted worker is obliged to keep a copy of such Notification Form at the place of work for monitoring purposes by the inspectors of the DIER.
Infringement of Posted Employee right and the Institution of Proceedings.
When a posted employee alleges that he or she has been treated in a way that violates any of his or her rights under the Subsidiary Legislation, the employee may submit a written request to the employer for a written statement outlining the reasons, if any, for any disparity in treatment. Such statement shall be provided by the employer within ten working days from the date of the request.
Moreover, a posted worker has the right to institute proceedings in the Courts of Malta to safeguard any right granted to him by virtue of the Regulations.