ACT No. XLIII of 2023 AN ACT to further amend the Employment and Industrial Relations Act, Cap. 452.

I assent.

(L.S.)

GEORGE VELLA

President

22nd December, 2023

ACT No. XLIII of 2023

AN ACT to further amend the Employment and Industrial

Relations Act, Cap. 452.

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:-

The short title of this Act is the Employment and Industrial Short title.

Relations (Amendment No. 2) Act, 2023, and this Act shall be read

and construed as one with the Employment and Industrial Relations Cap. 452.

Act, hereinafter referred to as "the principal Act".

Article 2 of the principal Act shall be amended by the Amendment of

article 2 of the

following

principal Act.

(a) immediately after the definition "employer" thereof

there shall be added the following new definition

" "employment agency" and "employment business"

means a natural or legal person carrying out any activity in

Malta

(a) for the recruitment of persons for

employment in Malta or outside Malta;

(b)

as a temporary work agency; or

(c)

as an outsourcing agency;

and in the case of a legal person whose objects in

their memorandum of association include the carrying out

of the relevant activities as well as activities ancillary or

incidental thereto, but do not include objects which are not

compatible with the services of an employment agency or

employment business;";

(b)

immediately after the definition "national standard

order" thereof there shall be added the following new definition

"outsourcing agency" means a natural or legal

person, and in the case of a legal person whose objects in

its memorandum of association include the carrying out of

the relevant activities as well as all activities ancillary or

incidental thereto, but do not include such objects which

are not compatible with the services of an outsourcing

agency, who enters into contracts of employment or

employment relationships with employees and who

assigns, whether on a regular or on an irregular basis, the

employees to user undertakings to work there temporarily,

by being physically present at the premises of the user

undertaking or working remotely, under the supervision,

direction and control of the outsourcing agency, whether or

not such activity is the main or ancillary activity of the

outsourcing agency;";

(c) immediately after the definition "recognition" thereof

there shall be added the following new definition

" "recruitment of persons for employment" means a

natural or legal person, and in the case of a legal person

whose objects in its memorandum of association include the

carrying out of the relevant activities as well as all activities

ancillary or incidental thereto, but do not include such

objects which are not compatible with the services of

recruitment of persons for employment, that provides

services for matching offers of and applications for

employment, without the provider of recruitment of persons

for employment becoming a party to the employment

relationship that may arise from such services;"; and

(d) immediately after the definition "self-employed

persons" thereof there shall be added the following new

definition

"temporary work agency" means a natural or legal

person, and in the case of a legal person whose objects in

its memorandum of association include the carrying out of

the relevant activities as well as all activities ancillary or

incidental thereto, but do not include such objects which

are not compatible with the services of a temporary work

agency, who enters into contracts of employment or

employment relationships with temporary agency workers

and who assigns, on a regular or on an irregular basis, the

temporary agency workers to user undertakings to work

there temporarily under their supervision, direction and

control, whether or not such activity is the main or

ancillary activity of the temporary work agency;".

Immediately after article 21 of the principal Act there shall be Addition of new

articles 21A and

added the following new articles 21A and 21B

21B to the

principal Act.

(1) There

shall

be

established

an

Employment Agencies Guarantee Fund (hereinafter

referred to as the "Agencies Guarantee Fund") for the

purpose of providing compensation to any employee of

any temporary work agency or outsourcing agency, as

the case may be, whose employment is terminated

because of the revocation or non-renewal of the licence

in terms of the provisions of any applicable regulations,

which Agencies Guarantee Fund shall be regulated and

administered in such manner as the Minister may

prescribe.

(2) The Minister may, after consultation with the

Minister for Finance and with the Board, prescribe

regulations for the purpose of giving better effect to the

provisions of this article. Without prejudice to the

generality of the foregoing, such regulations may

establish

(a) the manner in which the Agencies

Guarantee Fund shall be set up and funded;

(b) the level of proof required for funds to

be utilised;

(c) the manner in which the Agencies

Guarantee Fund shall be administered;

(d) the manner and the circumstances in

which the funds may be utilised;

(e) the right of the Agencies Guarantee

Fund to claim reimbursement of any amounts so

paid; and

(f) the measures and procedures that may

be required in order to prevent abuse.

(3) The Agencies Guarantee Fund shall have a

distinct legal personality and shall be capable of

entering into contracts, of suing and being sued, and

doing all such things and entering into such

transactions as are incidental or conducive for the

fulfilment of its objectives, as may be prescribed by the

Minister.

(4) The Agencies Guarantee Fund shall be

empowered to collect, recover and institute proceedings

for the enforcement of the rights vested in it in terms of

the provisions of this Act and of any regulations issued

thereunder.

(5) The legal and judicial representation of the

Agencies Guarantee Fund shall vest in the chairperson

of that authority established to administer the Agencies

Guarantee Fund or in any other person as the Agencies

Guarantee Fund may authorise for this purpose.

(1) There shall be an appeals board to be

called the "Employment Agencies Appeals Board"

(hereinafter referred to as the "Appeals Board"), which

shall exercise and perform the functions and powers

assigned to it by law.

(2) The Appeals Board shall consist of a

Chairperson and two (2) other members selected by the

Chairperson of the Appeals Board, who shall possess

different experiences to bring to the Appeals Board

knowledge, so far as equally possible, of the interests in

the claims lodged. Said members shall be selected from

a panel of persons appointed by the Minister to serve as

members of the Appeals Board, whenever the need

arises, which panel shall have more than two (2)

persons.

(3) The Minister shall appoint a panel of not less

than two (2) and not more than five (5) persons to act as

Chairpersons of the Appeals Board either in turn or in

accordance with such distribution of duties and subject

to such provisions as to inability to serve and other

circumstances, as may be prescribed by the Minister.

(4) The Chairpersons and members shall satisfy

the criteria according to sub-articles (5) or (6), and sub-

articles (7) and (8) shall apply.

(5) The Chairperson shall be an advocate who, for

a period or periods amounting in the aggregate to not

less than seven (7) years, has served as an advocate in

Malta or served as a magistrate in Malta, or partly so

practised and partly so served.

(6) Subject to any other provision in any other law

related to the composition of the Appeals Board or to

the qualifications of its members, the other members of

the Appeals Board shall be persons who in the opinion

of the Minister possess the necessary expertise and

experience in the field of employment.

(7) The Chairperson and the other members of the

Appeals Board shall hold office for a period of three (3)

years, and shall be eligible for re-appointment and may

not be removed during their term of office except on

grounds of proved inability to perform the functions of

their office whether arising from infirmity of body or

mind or any other cause, or proved misbehaviour.

(8) The Chairperson and other members of the

Appeals Board shall receive such remuneration as may

be determined in their instrument of appointment.

(9) An appeal in accordance with the provisions of

sub-article (11) shall be made to the Appeals Board in

writing explaining clearly the grounds for the appeal by

not later than thirty (30) days from the date the decision

or act in question has been notified to the aggrieved

person, and the Director shall have thirty (30) days

from the date when it was served with such appeal to

file his reply.

(10) The Appeals Board shall proceed to deal with

any matter before it with utmost urgency and shall give

its decision without delay.

(11) The request for the determination of the

Appeals Board shall be whether, for the reasons

adduced by the appellant, the Director has wrongly

applied any of the provisions of the regulations issued

under this Act in relation to employment agencies in his

decision.

(12) The Appeals Board shall hold its sittings in

public unless, having regard to the nature of the matter

before it, the Appeals Board deems it fit and proper to

conduct the proceedings or any part thereof behind

closed doors. In any such case, the decision of the

Appeals Board shall always be delivered in public. The

address of the Appeals Board shall be any such address

which may be in use from time to time as the head

office of the department responsible for employment

and industrial relations, and any correspondence shall

be addressed to the Chairperson.

(13) The chairperson or other members of the

Appeals Board may be challenged or may abstain from

sitting in a case in those circumstances that would

disqualify a judge in a civil lawsuit, and in such case

the Chairperson or member shall be substituted by

another member appointed by the Minister in

accordance with sub-article (2) or (3) as the case may

be.

(14) The Appeals Board shall have the power to

summon witnesses and to administer the oath thereto,

and to appoint any expert as it may deem necessary for

the determination of the case before it. When the

Director is to be summoned as a witness, the Director

shall have the right to nominate any officer of the

Director’s department to provide evidence, unless the

evidence of the Director is required.

(15) (a) All evidence shall be relevant to the

matter in issue between the parties.

(b) In all cases the Appeals Board shall

require the best evidence that the party may be

able to produce.

(c) The Appeals Board shall disallow any

evidence which it considers to be irrelevant or

superfluous, or which it does not consider to be

the best which the party can produce.

(16) Upon the hearing of an appeal made to it under

any law, the Appeals Board shall have the power

(a) to confirm, annul or vary the decision

of the Director under any of the provisions of the

regulations issued under this Act in relation to

employment agencies and to give directions

within its powers under this Act or any other law

to the Director to implement the decision of the

Appeals Board;

(b) to require the production of any

document or other information; and

(c) to order the payment of expenses by

any party to the appeal.

(17) An appeal from a decision of the Appeals

Board shall lie to the Court of Appeal only on a

question of law. An appeal shall be filed by not later

than twenty (20) days from the date of the decision of

the Appeals Board. In the determination of such an

appeal, the Court of Appeal shall have all the powers of

the Appeals Board to make orders.

(18) The Minister may make regulations governing

the procedure and fees for bringing and conducting

appeals before the Appeals Board

Provided that in the absence of such

regulations and subject to the rules of natural justice,

the Appeals Board shall regulate its own procedure.

(19) The Minister responsible for justice may by

regulations made under this sub-article establish the

fees payable in the registry of the court for the filing of

judicial acts in connection with appeals to the Court of

Appeal under this article

Provided that until such fees are so established

by the Minister responsible for justice, the fees

established in Schedule A to the Code of Organization

and Civil Procedure shall apply.

(20) An appeal made under this article shall not

suspend the operation of any decision or directive from

which the appeal is made

Provided that a decision to revoke, not to grant,

or not to renew a licence, and any consequent forfeiture

of the bank guarantee in terms of any of the provisions

of the regulations issued under this Act in relation to

employment agencies shall not become operative until

the expiration of the period within which an appeal lies

under this article and, if an appeal is made within such

period, the decision shall become operative on the date

of the decision of the Appeals Board dismissing the

appeal or the date on which the appeal is abandoned

Provided further that where a licence in respect

of which a decision to revoke has been made expires

during the period within which an appeal lies under this

article and, if an appeal is made within such period, the

licence shall be deemed to be automatically extended

on the same terms until the expiration of the period

within which an appeal lies or, if an appeal is made

within such period, until the date of the decision of the

Appeals Board dismissing the appeal or the date on

which the appeal is abandoned.".

Passed by the House of Representatives at Sitting No. 190 of the

18th December, 2023.

ANĠLU FARRUGIA

Speaker

RAYMOND SCICLUNA

Clerk of the House of Representatives

€0.90