Employment law and industry codes of practice

transcript

By Dr Mark Camilleri PhD (Edin.) MBA

The student will be able to:

Describe the purpose of employment legislation and distinguish between employees and self employed.

Identify the legal basis of the contract of employment and give examples of the main duties on the parties to such a contract.

Explain the concept of equal wage of equal value.

Workers can be categorised as:

◦ Employed (working under a contract of service).

◦ Self-Employed (working under a contract to provide services).

Deduction and rates of taxation; Entitlement to sick / holiday pay; Rights upon dismissal; Liability for negligence; Provision of equipment.

Integration Test – Is the individual fully integrated into the employers’ business?

Economic Reality Test – Who bears the risk of loss and chance of profit?

Multiple Test – This considers a number of factors:◦ Method of remuneration ; Method of selection and

termination, Organisation of work; Provision of tools and Deduction of tax and national insurance.

When there are no formalities involved in forming the contract of employment;

The Information to Employees Regulations, 2002 issued under the Employment and Industrial Relations Act (EIRA 02)

is applicable.

a) When there is NO written contract of employment which has been signed between the employer and employee; or

b) Where the contract does not cover all or some of the information required to be notified to the employee by these regulations.

The employer is bound to provide the employee within eight (8) working days from the date of employment, with a letter of engagement or a signed statement outlining the main terms of

employment.

1. Regulations issued under EIRA 022. National Standard Orders3. Collective Agreements

Contract of Service for Fixed Term Regulations, 2007. Minimum Special Leave Entitlement Regulations, 2007. Employee (Information and Consultation) Regulations, 2006. Equal Treatment in Employment Regulations, 2004. Organisation of Working Time Regulations, 2003. Young Persons (Employment) Regulations, 2003. Protection of Maternity (Employment) Regulations, 2003. Parental Leave Entitlement Regulations, 2003. Urgent Family Leave Regulations, 2003. Information to Employees Regulations, 2002. Part-Time Employees Regulations, 2002. Posting of Workers in Malta Regulations, 2002. Transfer of Business (Protection of Employment) Regulations,

2002. Collective Redundancies (Protection of Employment)

Regulations, 2002. Guarantee Fund Regulations, 2002.

2) National Standard Orders ◦ Issued by the respective Minister of Employment;

These orders regulate the conditions of employment of employees in general.

3) Collective Agreements◦ Applicable for the category to which an employee

belongs.

The first 6 months of employment is considered to be probationary employment.

This period is increased to 1 year period of probation in the case of technical, executive or managerial posts.

Either party to a contract of employment may end the contract without giving any reason.

The employee is entitled to receive the minimum wage.

◦ Wages are paid in full and in legal tender in Malta;◦ Wages are to be paid to the employee personally;◦ Wages are to be paid at regular intervals and on

working days;◦ Wages should not be paid subject to any conditions;◦ Wages are to be paid without any deductions;◦ Wages may not be attached;◦ Wages due to employees are a privileged debt.

Principle of equal remuneration for work of equal value.◦ Entails the elimination of all discrimination.◦ Jobs which are the same, should have the same pay;

irrespective who performs them.◦ Discrepancies in pay can only be justified if they are a

result of objective factors such as qualification, experience et cetera.

The term pay covers all benefits afforded by the employer to the employee in connection to employment (Pay also includes overtime, holidays and all components of the pay pack.

Victimisation means treating somebody less favourably than others because they tried to make a discrimination complaint.

Harassment means offensive or intimidating behaviour such as sexist language or racial abuse which aims to humiliate, undermine or injure the person to whom it is addressed.

Discrimination happens when an employer treats one employee less favourably than others.◦ Discrimination may be on the grounds of gender, marital

status, pregnancy, sex, disability, race, colour, ethnic background, nationality, religion or belief.

This refers to information which must be given to employees on commencement of employment except to:

◦ Employees who are employed for less than a month.

◦ Employees who are engaged for less than eight hours a week.

◦ Employees employed to perform a specific defined task period that the non-application is justified by objective consideration.

The employer is bound to provide the employee within eight working days from the date of employment, with a letter of engagement or a signed statement outlining the main terms of employment.

The employer shall provide the employee with a signed statement showing:◦ The name and details of the employer,

◦ The rate to be paid,

◦ Any special conditions regulating the contract.

Collective redundancies means the termination of employment by an employer on the grounds of redundancy, over a period of 30 days.

An employer proposing to declare a collective redundancy must notify the employee representatives in writing of the termination of employment.

Such representative must be provided with the opportunity to consult with the employer.

Such consultations must begin within seven working days from the day on which the employee representatives have been notified of intended collective redundancies.

Within the 7 day period, the employer must supply the employees’ representative with a written statement giving all relevant information including:

◦ The reasons of redundancy;

◦ The number of employees he intends to make redundant;

◦ The number of employees normally employed by him;

◦ The criteria proposed for the selection of the employees to be made redundant;

◦ Details regarding any redundancy payments which are due;

◦ The period over which redundancies are to be effected.

These regulations provide that employees on a contract of service for a fixed term shall not be treated in a less favourable manner than comparable permanent employees.

The regulation also oblige the employer to give fixed term employees facilitated access to appropriate training opportunities to enhance their skill, career development and occupational mobility.

When a fixed term contract extends beyond four years, this starts to be considered as a contract of employment for indefinite duration from the date on which the contract for a period of more than four years was entered into.

These regulations apply to all employees whose normal hours of work (calculated on a weekly basis or on average over a period of employment of up to one year) are less than the normal working hours.

Provide for the removal of discrimination against part time workers and seek to improve the quality of part-time work.

Facilitate the development of part-time work and contribute to the flexible organisation of working time taking into account the need of employees.

These regulations oblige employers to ensure that part-time employees are not treated less favourably than full time employees.

These regulations specify about the leave benefits:◦ Pro-rata leave entitlement to part-timers (principal

employment)

◦ The minimum entitlement of all public holidays, annual vacation, sick or injury leave, birth, bereavement, marriage leave

◦ Entitlements to statutory bonuses and other income supplements

Any alleged breach of the Part-Time Employees Regulation is to be determined by the Industrial Tribunal following the filing of a

complaint by the employee, within four months from the date when the less

favourable treatment or the alleged unfair dismissal arose.

These regulations establish a general framework setting out minimum requirements for the right to information and consultation of employees in undertakings.

The employer shall ensure that information and consultation of employees shall be carried out:

The employer must provide the information and consultation representatives with information on:

a)The recent and probable development of the undertaking’s activities and economic situation.

b)The situation, structure and probable development of employment within the undertaking.

c)Information and consultation on decisions likely to lead to substantial changes in work organisation or in contractual relations.

This regulation applies to employees who are pregnant, those who recently gave birth or who are breastfeeding.

In such cases, the employee is entitled to maternity leave or special maternity leave. The employer must take measures to protect the employees’ health and safety.

Measures include:

◦ Temporary adjustment of the working environment or hours of work and

◦ The assignment to suitable alternative work (where such temporary readjustment is not possible, the employee is entitled to take special maternity leave)

◦ Eight weeks of such special maternity leave shall be on full pay.

Maternity leave is established at 14 weeks (at least 4 weeks of which must be availed of before confinement) and at least 6 weeks of which must be availed of after confinement.

A pregnant employee may attend antenatal visits during working hours without loss of pay, if these have to take place during working hours.

An employer cannot dismiss a pregnant employee, an employee who has recently given birth or a breast feeding employee until the end of her maternity leave.

All employees are entitled to time off from work on grounds of force majeure for urgent family reasons in cases of sickness or accident making the immediate presence of the employee with his or her family indispensable.

An employer is bound to grant every employee a minimum of 15 hours leave with pay per year, for urgent family reasons, provided that the total number of hours availed of shall be deducted from the employee’s annual leave.

The employer has the right to ask for evidence to verify and confirm the request for urgent leave.

These regulations lay down minimum requirements designed to facilitate the reconciliation of parental and professional responsibilities for working parents.

These regulations grant male and female employees who are parents, the individual right to apply for and be granted unpaid parental leave on the grounds of birth, adoption or legal custody of a child.

The period of leave may be availed of for a period of up to three months (until the child is eight years old).

This leave may be availed of in respect of every child born to, adopted by or under the legal custody of the employee.

An employee remains entitled to any parental leave not availed of even if there is a change in the employer or the employment of the employee.

The minimum requirements for the organisation of working time. There regulations apply to:

◦ Maximum periods of daily rest, weekly rest, annual leave and to breaks.

◦ Maximum weekly working time.

◦ Certain aspects of night work, shift work and patterns of work.

These regulations lay down the minimum entitlements to sick leave, birth leave, bereavement leave, marriage leave, injury leave and leave for jury service.

These regulations apply to whole time employees.

These regulations: ◦Apply to employees’ claims for unpaid wages arising out of contracts of service and existing against employers who are in state of insolvency.

◦Set a Guarantee Fund which is used to guarantee payment of employees’ outstanding claims for wages.

An employee must register a claim on the Fund by not later than one month after the onset of the insolvency of the employer.

An employee must provide certified evidence that he is registered a valid claim for the unpaid wages in the insolvency proceedings of the employer.

The maximum amount paid of the Fund for every individual claim shall be limited to the basic wage for the relevant unpaid period.

The claim registered by every individual employee shall be limited to the unpaid amounts due for unpaid wages.

These regulations put in place the principle of equal treatment in relation to employment by laying down minimum requirements against discriminatory treatment on the grounds of religion, disability, age, sex and racial or ethnic origin.

The regulations grant to any person who claims to have been subject to discriminatory treatment, whether direct or indirect, in relation to his employment, the right to , within 4 months of the alleged breach to refer the matter to the Industrial Tribunal.

These regulations apply to all persons in relation to:◦ Conditions for access to employment.

◦ Access to all types and levels of vocational guidance, training and retraining.

◦ Employment and conditions of employment including remuneration and dismissals.

◦ Memberships of and involvement in any organisation of employees and employers, or any organisation whose members carry on a particular profession.

Prohibits work by children. Establish that the minimum employment age

shall not be lower than the minimum age at which compulsory full time schooling ends.

Regulate work by adolescents and persons under 18 years of age.

Ensures that employers guarantee that persons under 18 years of age have working conditions which suit their age and are protected against economic exploitation.

A fixed contract or a contract of definite duration may be terminated:◦ Upon the expiry of the fixed term;

◦ By either party during probation;

◦ By either party for any reason. The penalty stipulated by law must be paid by the party terminating the contract;

◦ By either party for good and sufficient cause.

A contract for indefinite duration may be terminated: ◦ By the employee for any reason;

◦ By the employer on the grounds of redundancy;

◦ By either party for ‘good and sufficient cause’.

1 week if an employee has been in continuous employment between 1-6 months.

2 weeks if an employee has been in continuous employment between 6 months to 2 years.

4 weeks if an employee has been in continuous employment between 2 to 4 years.

8 weeks if an employee has been in continuous employment between 4 to 7 years.

An additional week for every subsequent year of service up to a maximum of 12 weeks.

In case of technical, administrative, executive or managerial posts, the employer and employee may agree that longer periods may apply.

Unfair dismissal is a statutory claim made by qualified employees: Any employee who is not in probationary employment has the right not to be unfairly dismissed.

A dismissed employee must bring a claim to the Industrial Tribunal within 4 months of dismissal. A this hearing the employer must prove that the reason for dismissal was either for good and sufficient cause or for redundancy.

Redundancy is a fair reason for dismissal. It happens where:

The employer has ceased, or intends to cease, to carry on in business for the purposes of which the employee was employed.

The requirements of that type of business for employees to carry out work of a particular kind, in a particular place have ceased or are expected to diminish.

When an employer terminates employment on the grounds of redundancy, he must observe the “last-in first-out” rule.

An employee whose employment is terminated on grounds of redundancy is entitled to reemployment if the post is available again within a period of one year from the date of termination of employment.

An unfair dismissal is a statutory claim brought before the Industrial Tribunal. A decision of the Industrial Tribunal may be appealed on points of law only to the Court of Appeal.

The Tribunal has the power to award the following types of remedies:◦ Re-instatement (being restored to your old position)

◦ Re-engagement (being re-engaged in a different, but comparable position)

◦ Compensation (The Tribunal may consider: real damages and losses incurred by the employee who was dismissed; other circumstances include the employees age and skill which affect the employees’ employment potential)

Workers can be classified as either employed or self-employed. The employment contract must be evidenced in writing upon

employment with additional terms implied by regulations, national standard orders and any applicable collective agreement.

A contract of employment is subject to a period of probation and it grants the employee a number of rights to receive wages in full.

Workers are entitled to receive an equal wage of equal value. Workers are protected for victimisation and harassment. A number of regulations protecting the interest of employees have

been enacted under EIRA 02. Contracts of employment for definite periods and for indefinite

duration may be terminated for a number of reasons.

The students acquired sufficient knowledge about employment contracts, including statutory requirements.

The students learned about equality and diversity issues in the Maltese workplace.

This lecture explained the relevant codes of practice in the public service and in private organisational contexts.

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Despite every effort made to provide accurate information on these pages, the author does not assume any legal liability (to the extent permitted by law) or responsibility for the accuracy or completeness of any information contained on this site.The author reserves the right to revise this presentation or withdraw access to part of or all of it at any time.