Organisation of Working Time Regulations, 2003

L.N. 247 of 2003

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT, 2002

(ACT NO. XXII OF 2002)

Organisation of Working Time Regulations, 2003

IN exercise of the powers conferred by article 6 of the Employment

and Industrial Relations Act 2002, the Deputy Prime Minister and

Minister for Social Policy, has made the following regulations.

(1) The title of these regulations is the Organisation of Title and

commencement.

Working Time Regulations, 2003.

(2) These regulations shall come into force on such date as

the Minister responsible for employment and industrial relations may,

by order or orders, direct and different dates may be fixed in respect of

different provisions or purposes of these regulations or different sectors

of employment.

(1)

In these regulations, unless the context otherwise Interpretation.

requires>

“the Act” means the Employment and Industrial Relations

Act, 2002<

“adequate rest” means such rest periods, the duration of which

is expressed in units of time and which are sufficiently long and

continuous to ensure that, as a result of fatigue or other irregular

working patterns, workers do not cause injury to themselves, to

fellow workers or to others<

“civil protection services” includes the police, fire brigades

and ambulance services, the security and intelligence services,

customs and immigration officers, the prison service, any voluntary

rescue services, port and airport safety officers and air traffic

controllers<

“Director” means the Director responsible for employment

and industrial relations<

“employer” includes a partnership, company, association or

other body of persons, whether vested with legal personality or

not, and in relation to a worker means the person by whom the

worker is, or, where the employment has ceased, was employed<

“family worker” shall mean a relative of the employer to the

second degree, ascending or descending as well as persons under

the legal custody of the employer<

“Minister” means the Minister responsible for employment

and industrial relations<

“mobile worker” means any worker employed as a member

of travelling or flying personnel by an undertaking which operates

transport services for passengers or goods by road, air or inland

waterway<

“night time” means the period between 10 p.m. of any one

day and 6 a.m. of the next day<

“night worker” means a worker who>

(a) works at least three hours of his daily working

time as a normal course during night time< or

(b) works more than 50 per cent of his annual working

time, or such lower proportion as may be specified in

appropriate provisions of a relevant collective agreement

during night time>

Provided that for the purposes of paragraph (a) of this

definition, the term “normal course” means those instances where

the worker works such hours on the majority of days during which

he works<

“offshore work” means work performed mainly on or from

offshore installations, including drilling rigs, directly or indirectly

in connection with the exploration, extraction or exploitation of

mineral resources, including hydrocarbons, and diving in

connection with such activities, whether performed from an

offshore installation or from a vessel<

“rest period” means any period which is not working time

and does not include leave to which a worker is entitled under

these regulations<

“shift work” means any method of organising work in shifts

whereby workers succeed each other at the same work stations

according to a certain pattern, including a rotating pattern, and

which may be continuous or discontinuous, entailing the need for

workers to work at different times over a given period of days or

weeks<

“shift worker” means any worker whose work schedule is

part of shift work<

“working time” means any period during which the worker

is available for service to the employer and is carrying out his

activity or duties, and includes any relevant training and any other

additional period which is to be treated as working time for the

purpose of these regulations under any relevant agreement and

“work” shall be construed accordingly.

(2) Subject to the provisions of sub-regulation (1) of this

regulation, terms and expressions used in these regulations shall, unless

the context otherwise requires, have the meaning assigned to them in

the Act.

(1) These regulations shall be construed as a National Purpose, scope and

applicability of

Standard Order and lay down the minimum requirements for the regulations.

organisation of working time.

(2) These regulations shall apply>

(a) to minimum periods of daily rest, weekly rest and annual

leave, and to breaks< and

(b) to maximum weekly working time< and

(c) to certain aspects of night work, shift work and patterns

of work< and

(d) unless otherwise provided hereunder in these regulations

or in any applicable law, these regulations shall apply to all sectors

of activity, both public and private.

(3) These regulations shall not apply>

(a) where other legislation laying down more specific

provisions relating to the organisation of working time for certain

occupations or occupational activities are in force<

(b) to seafarers on board every seagoing vessel, whether

publicly or privately owned.

(4) These regulations shall be applicable without prejudice

to the introduction and implementation of provisions in collective

agreements or any other agreement entered into between employers

and employees, which are more favourable to the protection of the safety

and health of workers.

(5) These regulations shall be read and construed together

with the provisions of any applicable health and safety legislation and

in the case of conflict, these regulations shall apply.

Minimum Rest Periods and Maximum Working Time

Every worker shall be entitled to a minimum daily rest period

of 11 consecutive hours per 24-hour period during which the worker

performs work for his employer.

(1) Every worker shall be entitled to a rest break where the

working day is longer than six hours.

(2) The rest break to which a worker shall be entitled,

including its duration and the terms on which it is granted, shall be in

accordance with any provisions laid down in collective agreements or

any other agreement entered into between employers and employees.

(3) Subject to the provisions of any applicable collective

agreement in accordance with regulation 3(4), the rest break provided

for in sub-regulation (1) of this regulation shall be for an uninterrupted

period of not less than fifteen minutes, and the worker shall be entitled

to spend it away from his workstation, if he has one.

(1) Subject to the provisions of sub-regulations (2) and (3)

of this regulation, every worker shall be entitled to a minimum

uninterrupted weekly rest period of 24 hours, in addition to the daily

rest period of 11 hours referred to in regulation 4, for each seven-day

period during which the worker works for the employer>

Provided that, if the employer proves to the Director that technical

or work organisation conditions so require, then a minimum rest period

of 24 hours for each seven day period shall be applied so as to resolve

the technical or work organisation conditions>

Provided further that if the employer fails to prove to the Director

that technical or work organisation conditions so require, the Director

shall have the power to oblige the employer to allow the worker a weekly

rest period as provided in the first paragraph of this sub-regulation.

(2) Notwithstanding the provisions of sub-regulation (1) of

this regulation, the weekly rest period may be calculated over a 14-day

reference period if the employer so determines, and in such cases, a

worker shall be entitled to either -

(a) two uninterrupted rest periods each of not less than 24

hours, each preceded by a daily rest period, in each 14-day period

during which the worker works for the employer< or

(b) one uninterrupted rest period of not less than 48 hours,

preceded by a daily rest period, in each such 14-day period during

which the worker works for the employer.

(1) Saving as otherwise provided in these regulations, the Maximum average

weekly working

average working time for each seven-day period of a worker, including time.

overtime, shall not exceed 48 hours>

Provided that>

(a) the average weekly working time shall be calculated

from the total number of hours worked in a reference period as

specified in sub-regulation (3) of this regulation<

(b) the periods of paid annual leave, granted in accordance

with regulation 8 of these regulations, the periods of sick leave as

specified in any relevant legislation issued in terms of the Act or

as may be specified in a relevant collective agreement and any

other leave to which a worker shall be entitled pursuant to any

relevant legislative provision issued in terms of the Act shall not

be included in the calculation of the average.

(2) Sub-regulation (1) of this regulation shall not apply>

(i) until 31st July, 2004 in the following manufacturing sub-

sectors>

- food and beverages,

- textiles,

- clothing and footwear,

- transport equipment,

- electrical and electronic machinery, appliances and

supplies,

- furniture<

(ii) until 31st December, 2004 in respect of collective

agreements existing on 12th December, 2001 in the above

mentioned sub-sectors where these agreements contain clauses

relevant to this regulation with validity beyond July 2004.

(3) Subject to any relevant provisions in any applicable

collective agreement in accordance with regulation 3(4) of these

regulations, the reference periods which apply in the case of a worker

are -

(a) in the case of the manufacturing sector and the tourism

sector, including travel and catering establishments, a period of

52 weeks<

(b) where a relevant collective agreement provides for the

application of this regulation in relation to successive periods of

17 weeks, each such period<

(c) in any other case, any period of 17 weeks in the course

of the worker’s employment.

(4) Where a worker has been in employment for his

employer for less than 17 weeks, the applicable reference period shall

be the period that has elapsed since starting work for the employer.

(5) It shall be the duty of the employer to ensure that the

limit specified in sub-regulation (1) shall be complied with, in the

interests of the health and safety of the workers.

(6) Any provisions in any other legislation issued under the

Act which relate the minimum weekly wage of a whole-time employee

to a weekly working time of more than 48 hours, shall, henceforth, be

considered to relate such minimum weekly wage to a maximum average

weekly working time of 48 hours.

(1) Every worker shall be entitled to paid annual leave of at

least the equivalent in hours of four weeks and four working days

calculated on the basis of a 40-hour working week, and an 8-hour

working day and out of this paid annual leave entitlement, a minimum

period equivalent to four weeks may not be replaced by an allowance

in lieu, except where the employment relationship is terminated, and

any agreement to the contrary shall be null and void>

Provided that in cases where the average weekly working time,

calculated on the basis of a reference period of 17 weeks, is below or

exceeds 40 hours per week, the annual leave entitlement in hours shall

be adjusted accordingly>

Provided further that the average weekly working time shall be

calculated on the normal hours of work of the employee and shall not

include overtime hours.

(2) With the exception of the hours of annual leave

entitlement which may be availed of as urgent leave, leave shall be

availed of as whole working days, with the equivalent number of hours

being deducted from the annual leave entitlement calculated in hours,

unless otherwise provided for in a collective agreement or established

by mutual consent>

Provided that in cases when the residual hours of annual leave

entitlement is less than the equivalent of a whole working day, such

residual leave entitlement shall be granted on one occasion as part of a

whole working day.

(3) Notwithstanding the provisions of sub-regulation (1) of

this regulation, a proportion of the leave entitlement not exceeding 50%

of the annual leave entitlement, may, by mutual agreement between

employer and employee, be carried over once to the next calendar year.

Such vacation leave carried forward from the previous year will be

utilised first, and may not be carried forward again.

(4) When an employee is in employment for less than 12

months in any calendar year, the worker shall be entitled to such annual

leave as is in proportion to the period in employment.

(5) Every whole-time employee shall be entitled to the

national holidays and to all public holidays with full pay.

(6) Subject to any relevant provision in a recognised

collective agreement or established by mutual consent>

(a) in the case of workers on a regular daily schedule, when

a national holiday or public holiday falls on a worker’s day of rest,

the worker shall be credited with extra hours of annual leave

equivalent to the number of hours of a normal working day<

(b) notwithstanding the preceding paragraph, in the case of

workers on irregular schedules or where the hours of work vary

from day to day, the hours of work equivalent to a working day

which are to be credited to the annual leave entitlement of such

workers when a public holiday or a national holiday falls on a day

of rest shall be calculated on the basis of the number of normal

hours scheduled to be worked in a 17 week period, divided by the

number of working days in that same period.

Night Work and Shift Work

(1) Subject to the provisions of sub-paragraph (2) of this

regulation a night worker’s normal hours of work shall not exceed an

average of eight hours in any 24-hour period>

Provided that the average number of hours worked each night shall

be calculated on the total number of hours worked in a reference period

as specified in sub-regulations (4) and (5) of this regulation>

Provided further that if the minimum weekly rest period of 24

hours required by regulation 6 falls within the reference period it shall

not be included in the calculation of the average.

(2) The employer shall ensure that no night worker whose

work involves special hazards or heavy physical or mental strain shall

work more than eight hours in any period of 24 hours during which

night work is performed.

(3) For the purposes of sub-regulation (2) of this regulation,

work involving special hazards or heavy physical or mental strain shall

be recognised as such by means of >

(a) a risk assessment carried out by the employer pursuant

to article 6 of the Occupational Health and Safety Authority Act<

or

(b) appropriate provisions in collective agreements pursuant

to regulation 3(4) of these regulations specifying particular work

activities, taking account of the specific effects and hazards of

night work.

(4) The reference periods which apply in the case of a night

worker shall be defined>

(a)

by collective agreements, or

(b) in any other case by any period of 17 weeks in the course

of employment.

(5) Where a worker has been in employment with his

employer for less than 17 weeks, the applicable reference period shall

be the period that has elapsed since starting work for the employer.

(1) Prior to assigning a worker to carry out night work and Health assessment

and transfer of night

at regular intervals thereafter, it shall be the duty of an employer to workers to day

take the necessary measures to ensure that the worker concerned work.

undergoes a suitable health assessment to determine the worker’s health

status in order to ascertain fitness for the proposed work>

Provided that an employer shall repeat the health assessment after

a reasonable length of time has elapsed since a previous assessment or

whenever there has been a change in the working environment or in the

health status of the worker.

(2) No person shall disclose a health assessment made for

the purposes of this regulation to any person other than the worker to

whom it relates, unless -

(a) the worker has given his consent in writing to the

disclosure, or

(b) the disclosure is confined to a statement that the

assessment shows the worker to be fit or unfit as the case may be

prior to undertaking an assignment, or to continue to undertake an

assignment.

(3) Where –

(a) a registered medical practitioner has advised an employer

that a worker employed by the employer is suffering from health

problems which the practitioner considers to be connected with

the fact that the worker performs night work, and

(b) it is possible for the employer to transfer the worker to

work -

(i) to which the worker is suited, and

(ii) which is to be undertaken during periods such that

the worker will cease to be a night worker,

the employer shall transfer the worker accordingly.

(4) The employer shall not levy or permit to be levied on

any worker any charge or deduction in wages in respect of anything

done pursuant to any measure required by these regulations.

It shall be the duty of an employer who regularly uses night

workers, to keep adequate records on any workers carrying night work

to show that there is suitable compliance with the provisions of these

regulations and to furnish the Director, whenever so requested, with

any information related to night work which may be considered

necessary.

It shall be the duty of the employer to ensure that a worker

shall be given adequate rest breaks, to the satisfaction of the Director,

where a risk assessment in terms of the General Provisions for Health

and Safety at Workplaces Regulations, or any other relevant health and

safety legislation which may be in force from time to time, and carried

out to the satisfaction of the Occupational Health and Safety Authority,

shows that the pattern according to which an employer organizes work

is such as to put the health and safety of a worker employed by him at

risk, and in particular, because the work is monotonous or the work-

rate is predetermined.

Miscellaneous Provisions

Regulations 4, 5, 6, 7 and 9, shall not apply in relation to a

worker where, on account of the specific characteristics of the activity

in which the worker is engaged, the duration of the working time is not

measured or predetermined or can be determined by the worker, as may

be the case for, but not limited to –

(a) managing executives or other persons with autonomous

decision-taking powers<

(b) family workers< or

(c) workers officiating at religious ceremonies in churches

and religious communities.

Where the application of any provision of these regulations

is excluded by regulation 15 or 16 hereunder, or is modified or excluded

by means of a collective agreement under regulation 17, and a worker

shall be accordingly required by his employer to work during a period

which would otherwise be a rest period or rest break -

(a) the employer shall, notwithstanding such exemption, be

obliged to ensure that any worker concerned is allowed such

compensatory rest period or rest break, as the case may be, that

can be reasonably considered as equivalent to the rest period or

break referred to in regulation 4 or 6 of these regulations, and

(b) in exceptional cases in which it shall not be possible,

for objective reasons, to grant such a period of rest, the employer

shall afford the worker such protection as may be appropriate in

order to safeguard the worker’s health and safety>

Provided that the arrangement with regards to the conditions

of work provided for in this regulation shall not include>

(i) the granting of monetary compensation to the

worker< or

(ii) the provision of any other material benefit to the

worker other than the provision of such a benefit as will

improve the physical conditions under which the worker

works or the amenities or services available to the worker

while working.

Subject to the provisions of regulation 14, regulations 4, 5, Other special cases.

6, and 9 shall not apply -

(a) in relation to activities where the worker’s place of work

and place of residence are distant from one another, including

offshore work, or his different places of work with the same

employer are distant from one another<

(b) in relation to security and surveillance activities requiring

a permanent presence in order to protect property and persons, as

may be the case for security guards and caretakers or security firms<

(c) in relation to activities involving the need for continuity

of service or production, as may be the case in relation to -

(i) services relating to the reception, treatment or care

provided by hospitals or similar establishments, residential

institutions and prisons<

(ii) work at docks or airports<

(iii) press, radio, television, cinematographic

production, postal and telecommunications services and civil

protection services<

(iv) gas, water and electricity production, transmission

and distribution, household refuse collection and incineration

plants<

(v) industries in which work cannot be interrupted on

technical grounds<

(vi) research and development activities<

(vii) agriculture<

(viii) workers concerned with the carriage of

passengers on regular urban transport services<

(d) where there is a foreseeable surge of activity, as may be

the case in relation to -

(i) agriculture<

(ii) tourism< and

(iii) postal services<

(e)

in the case of persons working in railway transport>

(i) whose activities are intermittent<

(ii) who spend their working time on board trains< or

(iii) whose activities are linked to transport time-tables

and to ensuring the continuity and regularity of traffic<

(f)

where the worker’s activities are affected by –

(i) an occurrence due to unusual and unforeseeable

circumstances, beyond the control of the worker’s employer<

(ii) exceptional events, the consequences of which

could not have been avoided despite the exercise of all due

care by the employer< or

(iii) an accident or the imminent risk of an accident.

Shift workers.

Subject to the provisions of regulation 14 above -

(a) regulation 4 shall not apply in relation to a shift worker

when he changes shift and cannot take a daily rest period between

the end of one shift and the start of the next one<

(b) regulation 6 shall not apply in relation to a shift worker

when the worker changes shift and cannot take a weekly rest period

between the end of one shift and the start of the next one< and

(c) regulation 4 shall not apply to workers engaged in

activities involving periods of work split up over the day, as may

be the case for cleaning staff.

(1) With respect to doctors in training, regulation 7 (1) shall Doctors in training.

not apply until such date as the Minister may by notice in the Gazette

prescribe>

Provided that as from the 1st August, 2004 a transitional period

shall take effect in which the number of weekly working hours for

doctors in training shall not exceed an average of 58 during the first

three years, an average of 56 for the following two years and an average

of 52 for any remaining period.

(2) The employer shall consult the representatives of the

employees in good time with a view to reaching an agreement, wherever

possible, on the arrangements applying to the transitional period. Within

the limits set out in the preceding sub-regulation, such an agreement

may cover>

(i) the average number of weekly hours of work during the

transitional period< and

(ii) the measures to be adopted to reduce weekly working

hours to an average of 48 by the end of the transitional period.

(3) Regulation 7 (3) shall not apply to doctors in training

provided that the reference period does not exceed>

(a) 12 months, during the first three years commencing on

the 1st August, 2004 and

(b) six months for the following 2 years.

Subject to the provisions of regulation 14, a collective

agreement may>

(a) modify or exclude the application of regulations 4, 5, 6

and 9 in relation to workers or a group of workers<

(b) modify the application of regulation 7(3) by the

substitution for each reference to 17 weeks with a different period

not exceeding 52 weeks, when there are sufficient objective or

technical reasons or reasons concerning the organisation of working

time.

(1) Regulations 4, 5, 6, and 9 shall not apply to mobile

workers>

Provided that necessary arrangements are taken to ensure that

such mobile workers shall have adequate rest except in

circumstances laid out in regulation 15 (f).

(2) In cases where there may be objective or technical

reasons or reasons concerning the organisation of work, the reference

period referred to in regulation 7 (3) may be extended to twelve months

in respect of workers who mainly perform offshore work.

(1) The provisions of regulation 7 shall not apply in relation

to a worker who has agreed with his employer in writing that it should

not apply, provided that the employer takes the necessary measures to

ensure that>

(a) no worker shall be required to work more than 48 hours

over a seven-day period, calculated as an average for the reference

period referred to in paragraph (b) of regulation 14, unless the

employer has first obtained the worker’s agreement to perform

such work<

(b) no worker shall be subjected to any detriment by his

employer because he is not willing to give his agreement to perform

such work<

(c) the employer keeps up-to-date records of all workers

who carry out such work, which shall include the specific number

of hours to be worked by the employee in a particular reference

period<

(d) the records are placed at the disposal of the Director,

who may, for reasons connected with the safety and, or health of

workers, prohibit or restrict the possibility of exceeding the

maximum weekly working hours<

(e) the employer provides the Director at his request with

information on cases in which agreement has been given by workers

to perform work exceeding 48 hours over a period of seven days,

calculated as an average for the reference period referred to in

paragraph (b) of regulation 7(3).

(2) Any written agreement pursuant to what is stated in

paragraph (a) of sub-regulation (1) of this regulation shall be terminable

by the worker by giving no less than seven days’ written notice to his

employer or any other longer period, not exceeding three months, that

is stipulated in the written agreement.

(3) It shall be the duty of the employer to>

(a) keep adequate records to show that the limits specified

in regulations 7 and 9, and the requirements pursuant to regulation

10 are being complied with in the case of any workers to whom

these regulations apply, and

(b) to retain such records for at least two years from the

date on which they are made.

(4) When an employer fails to keep records under any

relevant provision in these regulations in relation to an employee, the

onus of proving, in proceedings before a Court, that the said provision

was complied with in relation to the employee shall lie on the employer.

Unfair dismissal and other offences

(1) An employee who is dismissed shall be regarded for Unfair dismissal.

the purposes of these regulations as having been unfairly dismissed if

the reason, or, if more than one, the principal reason, for the dismissal

is that the employee -

(a) refused, or proposed to refuse, to comply with a

requirement which the employer imposed, or proposed to impose,

in contravention of these regulations<

(b) refused, or proposed to refuse, to forgo a right conferred

on him by these regulations.

(2) In cases referred to in sub-regulation (1) of this

regulation, a worker may present a complaint to the Industrial Tribunal

set up in terms of Part III of Title II of the Act, that his employer –

(a) has refused to permit him to exercise any right he has

under these regulations< or

(b) has failed to pay him the whole or any part of any amount

due to him under regulation 8.

Any person who contravenes or fails to comply with the

provisions of any of these regulations shall be guilty of an offence against

the Act in terms of article 45 of the Act and shall be liable to a minimum

fine (multa) of two hundred liri (Lm200).

These regulations supersede any less favourable relevant

provisions in any regulations, orders or other subsidiary legislation made

under or kept in force under the Act, and any such relevant provisions

are hereby being revoked.

Mitbug[ fl-Istamperija tal-Gvern — Printed at the Government Printing Press