ACT No. I of 2003 AN ACT to promote equality for men and women BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same, as follows>- (nationalcommission)

I assent.

G UIDO D E M ARCO

(L.S.)

President

4th February, 2003

ACT No. I of 2003

AN ACT to promote equality for men and women

BE IT ENACTED by the President, by and with the advice and

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same, as follows>-

(1) The short title of this Act is the Equality for Men and Short title

and

Women Act, 2003.

commencement.

(2) This Act shall come into force on such date as the

Minister responsible for social policy may by notice in the Gazette

appoint and different dates may be so appointed for different purposes

or provisions of the Act.

(1)

In this Act, unless the context otherwise requires>

Interpretation.

“Commissioner” means the Commissioner for the promotion

of equality appointed under article 11 of this Act, and Commission

means the Commission established under the said article<

“discrimination” means discrimination based on sex or

because of family responsibilities and includes the treatment of a

person in a less favourable manner than other person has been or

would be treated on the grounds of sex or because of family

responsibilities and “discriminate” shall be construed accordingly<

“employment” means any gainful activity including self-

employment and includes promotion and transfer to another post,

as well as access to vocational or professional training, the duration

of the employment or its extension or termination<

“Minister” means the Minister responsible for equality<

“sexual harassment” means the unlawful activities listed in

subarticle (1) of article 9<

“vocational training” includes all forms of vocational training

and retraining.

(2) For the purposes of this Act, and unless the context

otherwise requires, the terms “man” and “woman” include males and

females irrespective of their age.

(3) For the purposes of subarticle (1) of this article

discrimination based on sex or because of family responsibilities

(a) the giving of less favourable treatment, directly or

indirectly, to men and women on the basis of their sex or because

of family responsibilities<

(b) treating a woman less favourably for reasons of actual

or potential pregnancy or childbirth<

(c) treating men and women less favourably on the basis of

parenthood, family responsibility or for some other reason related

to sex<

(d) any treatment based on a provision, criterion or practice

which disadvantages a substantially higher proportion of members

of one sex unless that provision, criterion or practice is appropriate

and necessary and can be justified by objective factors unrelated

to sex.

(4) Nothing in subarticle (2) of this article shall be deemed

to constitute discrimination in so far as such treatment -

(a) is given to grant special protection to women during

childbirth or pregnancy<

(b) constitutes measures of positive action for the purpose

of achieving substantive equality for men and women.

(5) In relation to access to employment, a less favourable

treatment which is based on a characteristic related to sex shall not

constitute discrimination where by reason of the particular occupational

activities concerned, or of the context in which they are carried out,

such a characteristic constitutes a genuine occupational requirement

and where such treatment remains within the limits of what is appropriate

and necessary in the circumstances>

Provided that the burden of proof shall lie on the person who

alleges that there is a genuine occupational requirement.

Nothing in this Act shall be construed as affecting any rule Scope of

this Act.

relating to religious practice, access to priesthood or membership in

any religious order or other religious communities.

(1) It shall be unlawful for employers to discriminate, directly Discrimination

in employment.

or indirectly, against a person in the arrangements made to determine

or in determining who should be offered employment or in the terms

and conditions on which the employment is offered or in the

determination of who should be dismissed from employment.

(2) Without prejudice to the provsions of article 26 of the

Employment and Industrial Relations Act, employers shall also be Act XXII of 2002.

deemed to have discriminated against a person if such employers –

(a) manage the work, give promotions, distribute tasks, offer

training opportunities or otherwise arrange the working conditions

in a manner that employees are assigned a less favourable status

than others on the basis of sex or because of family responsibilities<

or

(b) alter the working conditions, or the terms of employment

of employees to the detriment of such employees after such

employees have invoked any right accorded to him under this Act

or claimed the performance in his favour of any obligation or duty

under this Act< or

(c) neglect their obligation to suppress sexual harassment

as provided under subarticle (2) of article 9 of this Act.

(1) It shall be the duty of employers upon the request of any Report on

employment

person claiming to have been sexually harassed or discriminated against, procedures.

or upon a request made by the Commissioner acting upon a complaint

or otherwise, to provide such person or the Commissioner, as the case

may be, within ten working days of such a request with a report on the

allegation made or the procedures used by the employers in the matter

alleged to constitute such sexual harasment or discrimination.

(2) The employers shall be entitled to claim from the person

requesting the report, reimbursement of such reasonable expenses

incurred in drawing up and making the report>

Provided that such expenses may be recovered from the

person responsible for such sexual harassment or discrimination

if it is found that such sexual harassment or discrimination did

in fact take place.

(1) No bank or financial institution or insurance company

shall discriminate against any person in the grant of any facility in respect

of the establishment, equipment or in the launching or extension of any

business or the launching or extension of any form of self employment

or the insurance of that business or the person in self employment.

(2) Nothing in subarticle (1) of this article shall be deemed

to constitute discrimination in so far as the conditions under which the

facility or the insurance cover is offered or withheld reflect genuine

considerations based on the financial risk in the grant of such facilities

or of such insurance cover.

(1) Spouses of self employed workers not being employees

or partners, who participate in the activities of the self employed workers

and perform the same or ancillary tasks as their spouse shall be entitled

to receive from their spouse a fair compensation for their activity

commensurate to the value of their contribution.

(2) The provisions of subarticle (1) of this article shall not

apply where the system of Community of Acquests or Community of

the Residue under separate administration subsists between the spouses.

(1) It shall be unlawful for any educational establishment or

for any other entity providing vocational training or guidance to

discriminate against any person in -

(a) the access to any course, vocational training or guidance<

or

(b) the award of educational support for students or trainees<

or

(c)

in the selection and implementation of the curricula< or

(d) in the assessment of the skills or knowledge of the

students or trainees.

(2) Failure by the persons responsible for such

establishments and entities to fulfil their obligation to suppress sexual

harassment as provided under subarticle (2) of article 9 of this Act shall

for the purposes of subarticle (1) of this article constitute discrimination.

(3) It shall be the duty of educational establishments and

entities providing vocational training, within the limits of their

competence to ensure that curricula and textbooks do not propagate

discrimination.

(1) Without prejudice to the provisions of article 29 of the Sexual

harassment.

Employment and Industrial Relations Act, it shall be unlawful for any Act

person to sexually harass other persons, that is to say>

(a) to subject other persons to an act of physical intimacy< or

(b) to request sexual favours from other persons< or

(c) to subject other persons to any act or conduct with sexual

connotations, including spoken words, gestures or the production,

display or circulation of any written words, pictures or other

material, where the act, words or conduct is unwelcome to the

persons to whom they are directed and could reasonably be regarded

as offensive, humiliating or intimidating to the persons to whom

they are directed< or

(d) the persons so subjected or requested are treated less

favourably by reason of such persons’ rejection of or submission

to such subjection or request, it could reasonably be anticipated

that such persons would be so treated.

(2) (a) Persons responsible for any work place, educational

establishment or entity providing vocational training or guidance or for

any establishment at which goods, services or accommodation facilities

are offered to the public, shall not permit other persons who have a

right to be present in, or to avail themselves of any facility, goods or

service provided at that place, to suffer sexual harassment at that place.

(b) It shall be a defence for persons responsible as aforesaid to

prove that they took such steps as are reasonably practicable to prevent

such sexual harassment.

(3) Persons who sexually harass other persons shall be guilty

of an offence against this article and shall, without prejudice to any

greater liability under any other law, be liable on conviction to a fine

(multa) of not more than one thousand liri or to imprisonment of not

more than six months or to both such fine and imprisonment.

(1) Without prejudice to the provisions of article 26 of the Discriminatory

advertisement.

Employment and Industrial Relations Act, it shall be unlawful for Act XXII of 2002.

persons to publish or display or cause to be published or displayed any

advertisement, or, otherwise to advertise a vacancy for employment

which discriminates between job seekers or to request from job seekers

information concerning their private life or family plans>

Provided that the provisions of this subarticle shall not apply

in such cases where employers prove that the work in connection with

the situation advertised can only be performed by a person of a specific

sex.

(2) It shall not be lawful for persons to publish or display or

cause to be published or displayed any advertisement which promotes

discrimination or which otherwise discriminate.

(3) Persons who act in breach of subarticle (1) or (2) of this

article shall be guilty of an offence against this article and shall, on

conviction, be liable to the penalties established for contraventions.

(4) For the purposes of subarticle (1) of this article,

advertising includes disseminating information about the vacancy by

word of mouth from person to person.

(1) The Prime Minister shall upon the advice of the Minister

appoint a Commission to be called the National Commission for the

for the Promotion of

Promotion of Equality for Men and Women (hereinafter referred to as

“the Commission”) composed of a chairperson who shall be called the

Commissioner for the Promotion of Equality (hereinafter referred to as

“the Commissioner”) and six other members, at least three of whom

shall be women.

(2) All the members of the Commission shall be appointed

by the Prime Minister from among such persons appearing to him to be

best suited to deal with issues of equality for men and women, and, or,

administrative issues connected therewith.

(3) Every member of the Commission shall hold office for

a term of two years and may be reappointed at the end of their term of

office.

(4) The Prime Minister may terminate the appointment of

members of the Commission if he is satisfied that>

(a) without the consent of the Commission the members

failed to attend the meetings of the Commission during a continuous

period of six months<

(b) the members are undischarged bankrupt persons, or have

made an arrangement with their creditors, or are insolvent or have

been found guilty of any voluntary crime against the person< or

(c)

the members are incapable of carrying out their duties.

(5) The quorum of the Commission shall be of four

members, one of whom shall be the Commissioner.

(6) The validity of any proceedings of the Commission shall

not be affected by any vacancy among the members of the Commission

or by any defect in the appointment of any member.

(7) Decisions of the Commission shall be taken by the

majority of the votes of the members present. The Commissioner shall

also have a casting vote.

(8) Subject to the provisions of this Act and of any regulation

made thereunder, the Commission may appoint sub-committees and, in

general, shall regulate its own proceedings.

(1) The Commissioner, with the assistance of the Functions and status

of Commissioner

Commission, shall have the following functions, that is to say>

and of Commission.

(a) to identify, establish and update all policies directly or

indirectly related to issues of equality for men and women<

(b) to identify the needs of persons who are disadvantaged

by reasons of their sex and to take such steps within its power and

to propose appropriate measures in order to cater for such needs in

the widest manner possible<

(c) to monitor the implementation of national policies with

respect to the promotion of equality for men and women<

(d) to liaise between, and ensure the necessary co-ordination

between, government departments and other agencies in the

implementation of measures, services or initiatives proposed by

Government or the Commission from time to time<

(e) to keep direct and continuous contact with local and

foreign bodies working in the field of equality issues, and with

other groups, agencies or individuals as the need arises<

(f) to work towards the elimination of discrimination

between men and women<

(g) to carry out general investigations with a view to

determine whether the provisions of this Act are being complied

with<

(h) to investigate complaints of a more particular or

individual character to determine whether the provisions of this

Act are being contravened with respect to the complainant and,

where deemed appropriate, to mediate with regard to such

complaints<

(i) to inquire into and advise or make determinations on

any matter relating to equality between men and women as may

be referred to it by the Minister<

(j) to provide assistance, where and as appropriate, to

persons suffering from discrimination in enforcing their rights

under this Act<

(k) to keep under review the working of this Act, and where

deemed required, at the request of the Minister or otherwise, submit

proposals for its amendment or substitution<

(l) to perform such other function as may be assigned by

this or any other Act or such other functions as may be assigned

by the Minister.

(2) On the appointment by the Prime Minister of the first

members, the Commission shall have a legal personality separate from

that of the Government and its judicial representation shall vest in the

Commissioner>

Provided that the Commission may appoint any one or more

of its members or any other person, to appear in its name and on its

behalf in any judicial proceedings, and on any act, contract, agreement

or document whatsoever.

(1) The Commission shall be administered by an Executive

Director who shall act in accordance with such policies established by the

Commission and such instructions as may be given to him by the Commissioner.

(2) The Executive Director shall hold office under such

terms and conditions as the Commissioner, with the concurrence of the

Minister, may establish. Where the Executive Director is a public

officer seconded from the Government, such person shall have the right

on the termination of the secondment to revert to the former post without

loss of rank or seniority.

(3) The Commission may, after consultations with the

Minister and subject to the approval of such Minister as to their number,

remuneration and terms and conditions of service, appoint such officers

as it deems fit.

(4) The Prime Minister may, at the request of the Detailing

public officers.

Commission, from time to time direct that any public officers shall be

detailed for duty with the Commission in such capacity and with effect

from such date as may be specified in the direction.

(5) The period during which a direction as aforesaid shall

apply to any officers specified therein, shall unless the officers retire

from the public service, or otherwise cease to be public officers at an

earlier date, and on the date specified in the direction or on the happening

of any of the following events, that is to say -

(a) the acceptance by such public officers of an offer of

permanent employment with the Commission< or

(b) the revocation by the Prime Minister of any direction

made by him under this section in relation to such officers.

(6) Where a public officer is detailed for duty with the

Commission under this article, such officer shall, during the time the

direction has effect in relation to him, be under the administrative

authority and control of the Commission, but shall for all other intents

and purposes remain and be considered and treated as a public officer

and without prejudice to the generality of the aforesaid such public

(a)

shall not during the time while he was so detailed -

(i) be precluded from applying for transfer to a

department of the Government in accordance with the terms

and conditions of service attached to the appointment under

the Government held by the officer at the date on which such

officer was detailed for duty< or

(ii) be so employed that his remuneration and

conditions of service are less favourable than those which

are attached to the appointment under the Government held

by such officer at the date the officer was so detailed or which

would have become attached during the said period had such

officer not been so detailed< and

(b) shall be entitled to have the service with the Commission

considered as service with the Government for the purpose of any Cap. 93.

pension, gratuity or benefit under the Pensions Ordinance and the Cap. 58.

Widows and Orphans’ Pension Act < and

(c) any application made under subparagraph (i) of

paragraph (a) above, shall be given the same consideration as if

the applicant had not been so detailed.

(7) The Commission shall pay to the Government such

contributions as may from time to time be determined by the Minister

responsible for finance in respect of the cost of pensions and gratuities

earned by an officer detailed for duty with the Commission during the

period in which the officer was so detailed.

(1) The Commission shall be funded out of funds allocated

to it by the Minister out of funds voted by Parliament for activities

under the Ministry or out of funds that may be donated or allocated to it

from other sources in Malta or abroad.

(2) At least two months prior to the end of its financial year

the Commission shall submit to the Minster, a business plan (including

a financial plan) covering the proposed activities of the Commission

during the following financial year. When approved by the Minister

and by the Minister responsible for finance, such business plan, shall

be the approved budget of the Commission.

(3) The Commission shall keep proper accounts of its

income and expenditure and shall prepare and send to the Minister

statements of accounts in relation to each of its financial years.

(4) The accounts of the Commission shall be audited by an

auditor or auditors appointed by it with the approval of the Minister>

Provided that the Minister responsible for finance may require

the books and records of the Commission to be audited or examined by

the Auditor General who for the purpose shall have power to carry out

such physical checking or other verifications, and may demand and

acquire such information, as may be necessary.

(5) The financial year of the Commission shall commence

on the 1 st January and shall end on the 31 st December of each year>

Provided that the first financial year of the Commission shall

begin on the coming into force of this Act and end on the 31 st December

of the next following year.

(1) As soon as practicable after the end of every calendar

year, but in any case not later than the 31 st day of March of the following

year, the Commission may submit to the Minister a report of its activities

during the year (such report hereinafter in this section referred to as an

“Annual Report”).

(2) Each Annual Report shall include a general report of

developments during the period to which it relates in respect of matters

falling within the functions of the Commission and shall also include a

report on the activities, initiatives, investigations and initiatives

undertaken to suppress discrimination and to promote equality for men

and women.

(3) The Minister shall, as soon as practicable but in any

case not later than two months after its submission to him by the

Commission, cause a copy of the Annual Report together with a copy

of the then current business and financial plan of the Commission to be

laid on the Table of the House.

The Commission shall be exempt from any liability to pay Exemption for

Income Tax,

tax, in respect of its income, under the Income Tax Act.

Cap 123.

(1) The Commissioner may initiate investigations on any Complaints and

investigation.

matter involving an act or omission that is allegedly unlawful under the

provisions of this Act.

(2) The Commissioner may also initiate investigations on

the receipt of a complaint in writing by persons who claim to be the

victims of an act or omission contrary to the provisions of this Act.

(3) If it appears to the Commissioner that persons who wish

to make a complaint under subarticle (2) of this article require assistance

to formulate the complaint, the Commissioner shall take or order the

taking of such reasonable steps as may be necessary to assist such persons

in making the complaint.

(1) After carrying out an investigation the Commissioner Action by the

Commissioner

may -

following an

investigation.

(a)

dismiss the complaint, or

(b) find that the complaint is proved and thereupon, shall>

(i) where the action complained of constitutes an

offence, make a report to the Commissioner of Police for

action on his part< or

(ii) where the action complained of does not constitute

an offence, call upon the person against whom the complaint

is directed to redress the situation, and mediate between the

complainant and such person to settle the matter<

(2) The findings of the Commissioner under subarticle (1)

shall not be binding on the complainant and the person against whom

the complaint is directed unless they expressly declare in writing to be

so bound.

(3) In respect of general investigations or of investigations

upon complaints by the Commissioner, the Minister may prescribe>-

(a) the procedure whereby the Commissioner may require

any person to furnish such information as may be necessary for

the investigation, as well as the time within which and the manner

in which such information is to be furnished<

(b) the procedures to be followed where a person fails to

supply such information the circumstances, in which following an

investigation as aforesaid, the Commission may itself take legal

action.

(4) Regulations under subarticle (3) may provide, in the case

of an alleged discrimination by one person against another, the

arrangements whereby the Commission may itself refer the matter to

the competent civil court or to the Industrial Tribunal for redress>

Provided that nothing in this subarticle shall prevent any

person having a legal interest from himself taking action for redress or

where action has been taken by the Commission, from joining in and

becoming a party to the suit.

(5) The Commissioner and every other member of the

Commission or any member of the staff of the Commission shall treat

any matter coming to their knowledge in the course of an investigation

as confidential and shall not disclose the same unless such disclosure is

necessary in the course of a prosecution or an action for redress under

this Act.

(1) Without prejudice to the provisions of article 30 of the

Employment and Industrial Relations Act, a person who alleges that

any other person has committed in his or her regard any act which under

any of the provisions of this Act is unlawful, shall have a right of action

before the competent court of civil jurisdiction requesting the court to

order the defendant to desist from such lunlawful acts and, where

applicable, to order the payment of compensation for such damage

suffered through such unlawful act.

(2) In any proceedings under subarticle (1) of this article it

shall be sufficient for the plaintiff to prove that he or she has been treated

less favourably on the basis of sex or because of family responsibilities

and it shall be incumbent on the defendant to prove that such less

favourable treatment was justified in accordance with the provisions of

this Act.

(1) The Minister may make regulations generally for giving Power to

make

effect to the provisions of this act, and the enforcement thereof, and in regulations.

particular, but without prejudice to the generality of the foregoing>-

(a) for providing for any matter which is required or

authorised by the Act to be prescribed< and

(b) for providing for any matter relating to equality between

men and women< and

(c) for the exemption of any person, or class of persons or

body, from the requirements of article 4 (1) of this Act in so far as

it relates to article 4 (1) paragraphs (a) and (b), article 5 and article

10 of this Act as may be specified in the aforesaid regulations<

provided that any such exemption shall only be prescribed by the

Minister after consultation with the Commission and provided that

such exemption shall be for a specified period of time which can

be renewed by the Minister after consultation with the Commission.

Passed by the House of Representatives at Sitting No. 858 of the 27th January,

2003. A NTON T ABONE

R ICHARD J. C AUCHI

Clerk to the House of Representatives