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Contract service

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Should the employer give an employee the conditions of work in writing?
In principle, conditions of work should be agreed in writing in a contract of employment. If they are not agreed in writing and the period of employment exceeds one month and exceeds eight hours of work a week, the employer is bound to give a written statement to the employee showing his/her conditions of work, within 8 working days from the commencement of employment. It is also a good practice if the employee is given a job description.
What is the difference between a definite (fixed-term) and an indefinite contract of service?
As its name implies an indefinite contract of service means that the employee is engaged in an employment for an indefinite period (without a limit). On the other hand a fixed term contract is a contract wherein both parties usually agree on its duration and thus incorporates an expiry date. Excluding exceptions for justified reasons, a fixed-term contract can be successively renewed up to a maximum period of four years after which the employee shall be considered to be under a contract of indefinite duration.

Probation

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How long is the probationary period?
The first six months of employment constitute probation. The parties can however agree to a shorter term. In the case of a contract of service, or a collective agreement, in respect of employees holding technical, executive, administrative or managerial posts and whose wages are at least double the minimum wage established in that year, such probation period is of one year unless otherwise agreed (for a shorter period).
Can the employment be terminated during the probationary period?
During probation either party may terminate the employment without assigning any reason, provided that one week notice is given if the employment has exceeded one month. However, in the case of terminating the employment of a pregnant employee during probation, the employer is obliged to give her the reasons in writing to justify that the dismissal is unrelated to the employee's condition.

Wages

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Is overtime work obligatory?
The employer can oblige an employee to work overtime (1) when the total hours of work do not exceed an average of 48 hours a week, and (2) when an employee has consented in writing to work over such an average. Such consent can be withdrawn by the employee provided that a written notice of at least 7 days or such longer period not exceeding 3 months as may be agreed between the parties, is given to the employer.
What obligations concering overtime arise in cases of birth and adoption of a child?
Employees are not obliged to work overtime:
  1. During pregnancy.
  2. For a period of 12 months from either the birth of his or her child or from the effective date of the adoption of a child.
Is every worker entitled to the cost of living increase?
Yes, the cost of living increase is obligatory. A full-time employee is entitled to the full increase, while a parttime employee is entitled to part of the cost of living increase in proportion to the hours worked.
What is the minimum wage for the current year?

For 2019, the national minimum wage related to a normal working week is:

Age 18 years and over       €175.84*
Age 17 years                      €169.06
Age 16 years                      €166.22

There are other different minimum wages that are applicable to different jobs within specific industrial sectors. Every employee is entitled to statutory bonuses and weekly allowances. 

* Upon completion of the first year of employment with the same employer, the employees are entitled to mandatory increases of €3 per week, and upon completion of the second year, to an additional €3 per week. The increases should be paid to employees on a pro-rata basis.

When should wages be paid?
Wages should be paid at regular intervals not exceeding 4 weeks in arrears. Different periods of pay can be agreed in a collective agreement. If the employer fails to pay the employee wages due, a complaint can be lodged at the Department of Industrial and Employment Relations.
Can an employer offer the employee a wage that is higher than the minimum wage provided by law to compensate for overtime hours worked?
A contract of employment may, apart from specifying the basic wage, also contain a clause for an allowance to be paid in respect of a number of hours worked in excess of the normal working week. Such overtime may exceed 8 hours in a particular week provided that on average, the 48 hour maximum is not exceeded.
Can an employer make deductions from an employee’s wage (other than any tax or social security contributions)?
An employer is not allowed to make deductions from the employee’s wage except where permitted by law or by an order of a competent court.
Can the employer impose any fines that may be deducted from an employee’s wages?
Yes, if it is agreed in a collective agreement or specified in a contract of employment or written statement and authorised by the Director of Industrial and Employment Relations, the employer can impose fines on his/her employees. Fines also include suspension without pay or with reduced pay.
What is the hourly rate payable to employees of private contractors while providing services to Public Entities and Government Departments?
The applicable hourly rate payable to such employees is, in principle, the hourly rate payable to Government employees performing similar duties. For 2018, 2019 and 2020 the hourly rates applicable are thus the following for the categories indicated:
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What conditions, other than the hourly rates payable, should be observed by the employer in respect of employees of private contractors while providing services to Public Entities and Government Departments?
Such conditions include:
  1. The employee is given a written contract of employment,
  2. A detailed payslip is issued to the employee,
  3. Wages shall be deposited by direct payment in the employee’s bank account,
  4. No subcontracting shall take place to contractors employing the same employees of the principal contractor.

Hours of work

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What are the normal weekly hours of work?
The normal hours of work for full-time employment vary according to the relevant sector of industry. These are established in Wage Regulation Orders that regulate such sectors according to their activity of work. The normal hours of work of a part-time employee should be less than those worked by a comparable full-time employee, calculated on a weekly basis or on an average over a period of employment of up to one year.
Who can work on the basis of reduced hours?
Full-time employment with reduced hours is employment in respect of which social security contributions are payable and when the employee agrees with his/her employer to work less hours than those worked by a comparable full-timer. In such cases, the wage and other entitlements shall be granted on a pro-rata basis.
Are all part-timers entitled to pro-rata entitlements?
In any part-time employment, whether as a principal or secondary employment, a part-time employee is entitled to all entitlements enjoyed by the comparable full-time employee, on a pro rata basis.

Rest periods

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Is an employee entitled to rest breaks during the day?
Where the working day is longer than six hours, an employee is entitled to not less than fifteen minutes of rest, unless a longer period of rest is provided by any other regulation or agreement. Such rest break is not considered as working time.
How much rest time should be given from one working day to another?
Every worker is entitled to a minimum daily rest period of 11 consecutive hours.
Is an employee entitled to a weekly day of rest?
In addition to the 11 hour daily rest, every worker is entitled to an uninterrupted weekly rest period of:
  1. 24 consecutive hours within a seven day period, or
  2. One period of 48 consecutive hours within a 14 day period, or
  3. Two periods of 24 consecutive hours each within a 14 day period.

However, in certain circumstances specified by the law, there may be the possibility for a worker not to take the full rest period, provided that equivalent compensatory rest periods are given to the worker concerned at times immediately following the corresponding periods worked.

Leave

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Can vacation leave be carried forward to the following year?
The employee should seek to utilise his/her vacation leave entitlement during the same calendar year when it is due. If not applied for, the employee cannot claim payment. It is only possible to carry forward up to 50% of the annual leave entitlement to the following year if there is an agreement with the employer.
What arrangements are there for an employee to take urgent leave for private and personal reasons?
The employee is entitled to a total of fifteen hours with pay per year as time off for urgent family reasons. These hours are to be deducted from the annual leave entitlement of the employee. Such urgent leave has to be related to cases of sickness or accident to members of the immediate family of the employee.
Does an employee get paid if injured while on duty?
Yes, employees are entitled to a maximum period of one year injury leave on full pay, less the full amount of any injury benefit to which such employee may be entitled in terms of the Social Security Act, if s/he is injured during the actual discharge of his/her duties and not due to contributory negligence on her/his part or to any contravention of safety rules laid down by the employer.
What would the situation be whenever a public or a national holiday falls on a day of rest?
If a public or national holiday falls on any day of rest between Monday and Friday it is to be added to the annual leave entitlement of the employee. However, if a public or national holiday falls on Saturday or Sunday which happens to be a day of rest, no additional day is added to the annual leave entitlement of the employee.
What other special leave is the employee entitled to?
An employee is entitled to other special leave such as marriage leave, birth leave, bereavement leave and leave for jury service.
Can employees choose to take leave whenever they want to?
Though it is the employee’s right to choose when to apply for leave, the application for leave has to be approved by the employer before an employee can proceed with leave. The employer may approve or refuse an application for leave, taking into consideration the exigencies of work.
How much vacation leave is an employee entitled to?
An employee working an average of 40 hours per week is entitled to 192 hours in addition to 8 hours announced in Budget 2018 and another 8 hours announced in Budget 2019. If such average normal hours (excluding overtime) is below or exceeds 40 hours per week, the vacation leave entitlement in hours should be adjusted accordingly. By mutual agreement with the employer, leave can be taken in hours. Otherwise, if there is no agreement between the employer and the employee, leave has to be availed of as a whole day.
Is it possible for an employee to get paid for the annual leave instead of availing the entitlement?
A minimum period equivalent to four weeks (160 hours) cannot be replaced by any allowance, except when the worker’s employment is terminated.
How much is the amount of sick leave entitlement?
The amount of sick leave varies according to the relevant sector of industry. The applicable amount of sick leave entitlement is provided in the relevant WRO that regulates the specific sector of industry; or where the sector is not covered by a WRO, an employee is entitled to two working weeks of sick leave annually (calculated in hours).
While being on Injury Leave, does the accrual of annual leave and bonuses continue?
Yes, vacation leave and bonuses continue to accrue.
Is a pregnant worker entitled to take time off to attend antenatal examinations?
An employee is entitled to time off without loss of pay or any other benefit, in order to attend antenatal examinations, if such examinations have to take place during her hours of work.
Should an employee who is pregnant, breastfeeding or has recently given birth be exposed to hazards at the place of work?
If there are risks at work that could jeopardise the employee’s health and safety and/or the pregnancy, such employee is entitled to special maternity leave as long as the risk exists.
What is the amount of maternity leave that an employee is entitled to?
A pregnant employee can resort to maternity leave for an uninterrupted period of eighteen (18) weeks:
  • First fourteen (14) weeks with full wages paid by the employer.
  • Remaining four (4) weeks are optional and unpaid by the employer. However, if the employee chooses to avail herself of the four weeks optional maternity leave, or part thereof, the employee can apply for the Maternity Leave Benefit in terms of the Social Security Act to which the employee may be entitled. 
On termination of maternity leave, the employee has the right to resume work in the post formerly occupied on the commencement of the maternity leave and if such post is no longer available, to a related post.
What are the consequences if an employee resigns from work immediately after utilising her maternity leave?
Where a female employee resigns from employment without good and sufficient cause within six months from the date she resumes work after availing herself of maternity leave, she shall be liable, to pay the employer a sum equivalent to the wages she received during such maternity leave.
What are the rights of an employee if s/he needs to take a period of time-off from employment to be able to look after his/her children?
Both male and female workers who have been at least 12 months in continuous service with their employer have the individual right to be granted unpaid parental leave on the grounds 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 attained the age of eight years.

Notice and termination

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When the employee gives notice, can s/he cease to perform work?
If after giving notice, the employee fails to work during the notice period, s/he will be obliged to pay his/her employer a sum equal to half the wages that would be payable in respect of the unexpired period of notice.
What happens if an employee abandons his/her employment without giving notice?
If the employee fails to give notice s/he shall be liable to pay to the employer a sum equal to half the wages that would be payable in respect of the period of notice that is not worked.
What are the obligations at law when a fixed term contract is terminated before its due expiry date?
Where there is no justified reason to terminate an employment that is on definite basis, the party who breaches the contract is liable to pay the other party a sum equal to half the full wages that would have accrued had the contract of employment remained in force.
On receiving notice from the employer, can the employee cease to perform work?
If the employee chooses to cease performing work on receiving notice from the employer, the employer is obliged to pay the employee a sum equal to half the wages that would be payable in respect of the unexpired period of notice.
What is the duration of the notice period?
The duration of the notice period depends on the employee’s continuous length of service in the same employment:
  • More than one month and up to six months - one week
  • More than six months and up to two years - two weeks
  • More than two years and up to four years - four weeks More than four years and up to seven years - eight weeks
  • More than seven years and up to eight years - nine weeks
  • More than eight years and up to nine years - ten weeks
  • More than nine years and up to ten years - eleven weeks
  • More than ten years - twelve weeks
In the case of technical, administrative, executive or managerial posts, longer periods may be agreed by the employer and employee. However, if the employment is terminated during its probationary period, only one week notice applies, given that the employee has been in employment for more than one month.
Can the employer terminate an employment on grounds of redundancy and not allow the employee to work his/her due notice?
If the employee is not given the chance to work the notice, the employer would be obliged to pay the employee a sum equal to full wages that would be payable in respect of the unexpired period of notice.
When the employee gives notice and the employer does not allow him/her to work the notice, is the employee entitled to any compensation?
If the employee chooses to continue performing work until the period of notice expires but the employer precludes him/her from so doing, the employer would be obliged to pay the employee a sum equal to the full wages that would be payable in respect of the unexpired period of notice.
What is an employee entitled to on termination of employment?
Without prejudice to what may be due in respect of notice, the employee is entitled to be paid on a proportional basis according to the period of employment, for all outstanding wages, overtime, leave, bonuses etc, due to him/her as at the date of termination.
Are there situations when an employment can be terminated without giving notice?
An employment can be terminated without notice or obligation to compensate for notice when the length of service is not longer than one month, or when there is a good and sufficient cause (eg. disciplinary action, health reasons etc.)
If an employee feels that s/he was unjustly terminated from employment what are his/her rights?
An employee who alleges unfair dismissal can lodge a complaint to the Industrial Tribunal within four months from the termination of employment.
When there is a termination of employment, when should the final payments be settled?
All outstanding wages should be settled by the next pay date following the termination of employment.

Remedies

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What remedies are available to an employee who alleges a breach in his/her conditions of employment?

The employee can seek the assistance of the Department of Industrial and Employment Relations, at No. 109, Melita Street, Valletta who will investigate the case, including instituting criminal action against the employer if the case so requires. Such assistance may be provided personally from the customer care of the Department or by telephone on 21224245/6 or through e-mail on info.dier@gov.mt

The employee as a private individual can institute action within the civil court.

In case of alleged unfair dismissal, discriminatory treatment, breach of the principle of equal pay for work of equal value, victimization, harassment and all the cases which refer to the Industrial Tribunal, the employee as a private individual can institute action before the Industrial Tribunal.

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XBX1425 TA'XBIEX
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