Protection of Maternity (Employment) Regulations, 2003

L.N. 439 of 2003

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT, 2002

(ACT NO. XXII OF 2002)

Protection of Maternity (Employment) Regulations, 2003

IN exercise of the powers conferred by article 10 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 Protection of Maternity Title, scope and

coming into force.

(Employment) Regulations, 2003.

(2) The purpose of these regulations is to lay down minimum

requirements designed to safeguard the employment rights of pregnant

employees, employees who have recently given birth and breastfeeding

employees, thus facilitating improvements in the safety and health of

these employees and to give effect to the relevant provisions of Council

Directive 92#85#EEC.

(3) These regulations shall be applicable without prejudice

to the introduction and implementation of more favourable provisions

in collective agreements or other agreements entered into between the

employer and the employee.

(4) These regulations shall apply to all employees who are

pregnant, have recently given birth or who are breastfeeding.

(5) These regulations shall come into force on the 5th

January 2004.

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

this regulation, the provisions of regulations 6, 7 and 8 of these

regulations shall not apply in the case of a pregnant employee whose

expected date of confinement is before 5th April 2004, irrespective of

the actual date of confinement, and the maternity leave entitlement and

benefits thereof shall continue to be regulated by article 18(1), (2), (3)

and (4) of the Conditions of Employment (Regulation) Act and by Cap. 135.

regulation 8 of the Protection of Maternity at Workplaces Regulations. L.N. 92 of 2000.

(7) The provisions of these regulations shall apply in full in

the case of a pregnant employee whose expected date of confinement is

on or after 5th April 2004, irrespective of the actual date of confinement

(1) In these regulations> -

“the Act” means the Employment and Industrial Relations

Act, 2002<

“breastfeeding employee” means an employee who is

breastfeeding during a period of up to twenty-six weeks after her

date of confinement and who has informed her employer of her

condition by means of a certificate issued by a registered medical

practitioner or midwife<

“date of confinement” means the date of the delivery of the

child<

“employee who has recently given birth” means an employee

who has formally informed her employer of her condition by means

of a certificate issued by a registered medical practitioner or

midwife, and whose date of confinement was>

(a) not more than 14 weeks before in the case of a

stillborn child, and

(b) not more than twenty-six weeks before in the case

of a live birth<

“pregnant employee” means an employee who formally

informs her employer of her pregnancy and of the expected date

of confinement by means of a certificate issued by a registered

medical practitioner or midwife<

“risk assessment” means the assessment carried out by the

employer to the satisfaction of the Occupational Health and Safety

Authority, in terms of the General Provisions for Health and Safety

at Work Places Regulations, 2003, or other relevant legislation in

terms of the Occupational Health and Safety Authority Act<

“special maternity leave” means leave of absence from work

granted by the employer to an employee who is pregnant,

breastfeeding or has recently given birth, when, despite the

employer taking the steps referred to in regulation 3, there exists

or would still exist, a risk that could jeopardise the health or safety

of the employee< such leave is to be granted for as long as the risk

exists and on terms referred to in these regulations<

“working environment” means the interaction between the

nature of the work, and the physical situation and general

environment in which the worker carries out her work.

(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) In this regulation, employee includes “pregnant Employment rights

employee”, “employee who has recently given birth” and “breastfeeding and

maternity leave.

employee”.

(2) The employee’s employment shall be ensured and her

wages shall not be less favourable than those stipulated in her contract

of employment when an employer takes measures to protect the health

and safety of an employee, after a risk assessment has revealed a risk to

the safety or health or an effect on the pregnancy or breastfeeding of

the employee.

(3) The measures referred to in the preceding sub-regulation

include>

(a) the temporary adjustment of the working environment

and, or the hours of work of the employee concerned<

(b) the assignment of the employee to suitable alternative

work which is appropriate for her to do in the circumstances, in

the event that the adjustment of her working conditions and, or

hours of work is not technically and, or objectively feasible, or

cannot reasonably be required on duly substantiated grounds>

Provided that an employee who, without justification, refuses to

perform suitable alternative work provided by her employer which is

considered acceptable in the circumstances by the Occupational Health

and Safety Authority, shall not be entitled to any remuneration referred

to in sub-regulation (5) during her special maternity leave>

Provided further that when the reason for the measures taken in

terms of sub-regulation (3) no longer remain valid, the employer shall

endeavour to reassign the employee to the same job or when this is no

longer possible for a valid reason, to equivalent or similar work which

is consistent with her original contract of employment.

(4) If the employer shows to the satisfaction of the

Occupational Health and Safety Authority that he is unable to comply

with the provisions in sub-regulation (3), the employee concerned shall

be given special maternity leave by the employer for the whole of the

period necessary to protect her safety or health, without prejudice to

her other entitlement by virtue of regulation 6 and regulation 7.

(5) During the special maternity leave referred to in sub-

regulation (4), the employer shall pay the employee, for a period of

eight weeks, a special allowance equivalent to the rate of sickness benefit

payable in terms of the Social Security Act.

Any special maternity leave given in relation to a single

confinement, whether as a continuous period or in an interrupted manner,

extending beyond a cumulative total of eight weeks, shall be unpaid>

Provided that the employee shall remain entitled on termination

of the special maternity leave, to all benefits which may accrue to other

employees of the same class or category of employment at that place of

work.

(6) If an employee to whom leave has been given under

sub-regulation (4) as being an employee who is breastfeeding ceases

breastfeeding, she shall, at the earliest practical time, notify her employer

in writing that she has so ceased.

(7) Without prejudice to sub-regulation (6), if, during a

period of special maternity leave given to an employee, the employee

becomes aware that her condition is no longer such that she is vulnerable

to the risk by virtue of which she was given the special maternity leave,

she shall at the earliest practical time notify her employer in writing

that she is no longer at risk.

(8) Where an employer receives notification from an

employee under sub-regulation (6) or (7) and has no reason to believe

that, if the employee returned to work, she would be vulnerable to risk

as an employee to whom these regulations apply>

(a) the employer shall take all reasonable measures to enable

the employee to return to work in the job which she held

immediately before the start of her leave and shall then notify her

in writing that she can resume work in that job< and

(b) the special maternity leave given to the employee shall

end seven days after the notification under paragraph (a) is received

by her or, if it is earlier, on the day she returns to work.

(9)

If, during a period of special maternity leave, her

employer>

(a) either takes whatever measures are necessary to the

satisfaction of the Occupational Health and Safety Authority to

ensure that she will no longer be exposed to any risk by virtue of

which she was given the special maternity leave or becomes able

to move the employee referred to in sub-regulation (2), and

(b) notifies the employee in writing that she can return to

work without exposure to that risk or, as the case may be, that

other work is available to her which is suitable for her as mentioned

in sub-regulation 2 (b),

the special maternity leave shall end seven days after the notification

under paragraph (b) is received by her or, if it is earlier, on the day she

returns to work or, as the case may be, takes up the other work.

The provisions of regulation 3 shall apply mutatis mutandis, Prohibition of

exposure to certain

when an employer takes measures to protect the health and safety of an agents or working

employee who becomes pregnant or starts breastfeeding, to the conditions.

satisfaction of the Occupational Health and Safety Authority, to prevent

the risk of exposure which could jeopardise the health or safety of such

an employee, to agents, processes or working conditions to which

exposure is prohibited in terms of specific provisions made under the

Occupational Health and Safety Authority Act>

Provided that the employee has duly informed her employer that

she is pregnant or breastfeeding.

(1) The employee’s employment rights shall be ensured and Night work.

her wages shall not be less favourable than those stipulated in her contract

of employment when an employer, who has received notification by

means of a medical certificate that an employee should not perform

night work during her pregnancy and during breastfeeding for reasons

relating to her health and safety, transfers her to daytime work to comply

with his obligations as an employer in terms of the Occupational Health

and Safety Authority Act, or of subsidiary legislation issued thereunder. Cap.424.

(2) If the employer shows, to the satisfaction of the

Occupational Health and Safety Authority, that he is unable to comply

with the requirement to transfer the employee to daytime work as referred

to in sub-regulation (1) as this is not technically and, or objectively

feasible or cannot be required on duly substantiated grounds, the

employee shall be given special maternity leave as referred to in

regulation 3.

(1) A pregnant employee may apply for maternity leave for

an uninterrupted period of 14 weeks if she notifies her employer in

accordance with regulation 8.

(2) Maternity leave shall be availed of as follows>

(a) six weeks of the maternity leave entitlement to be taken

compulsorily immediately after the date of confinement<

(b) four weeks of maternity leave to be availed of

immediately before the expected date of confinement, unless agreed

otherwise between the employer and the employee<

(c) the remaining balance of entitlement to be availed of, in

whole or in part, either immediately before or immediately after

the above periods, as the employee may request>

Provided that if she is unable to avail herself of the maternity leave

entitlement before the date of confinement, such remaining balance of

entitlement may be availed of after confinement.

An employee on maternity leave shall be entitled to maternity

leave with full wages during the first thirteen weeks of such leave, with

the fourteenth week being unpaid.

(1) A pregnant employee who intends to avail herself of her

maternity leave entitlement, shall notify the employer in writing of the

date when she intends to avail herself of such entitlement.

(2) The notification referred to in the previous sub-

regulation shall be given to the employer at least four weeks before the

maternity leave begins, in so far as is reasonably practicable.

(1) A pregnant employee shall be entitled to time off without

loss of pay or any other benefit, in order to attend ante-natal

examinations, if such examinations have to take place during her hours

of work.

(2) The employer may request documentation to show the

appointment times or attesting to actual attendance for such

examinations.

An employee on a fixed-term contract shall, for the duration

of that contract have the same rights conferred by these regulations, but

shall not be liable to pay the employer a sum equivalent to the wages

she received during maternity leave if her contract of employment is

not extended at the employer’s discretion for up to a period of time

which is sufficient for her to fulfil the obligations pursuant to article 36

(20) of the Act.

(1) When an employee is on maternity leave or special Rights during

maternity and

maternity leave, the employee shall be deemed to have been in the special maternity

employment of the employer and during any such absence she shall be leave.

entitled to all rights and benefits which may accrue to other employees

of the same class or category of employment at the same place of work,

including the right to apply for promotion opportunities at her place of

work, and on return to work, she shall be entitled to return to the same

job or when this is no longer possible for a valid reason, to equivalent

or similar work which is consistent with her original contract of

employment.

(2) During the leave referred to in the previous sub-

regulation the employee shall have no right to any bonus or allowance

related to performance or production.

(1) Subject to sub-regulation (2), it shall not be lawful for Dismissal.

the employer to dismiss a pregnant employee, an employee who has

recently given birth or a breastfeeding employee, from the date in which

such employee formally notifies the employer of her pregnancy to the

end of her maternity leave, or during any period of special maternity

leave, because of her condition or because she avails herself or seeks to

avail herself of any rights in accordance with these regulations.

(2) The provisions of sub-regulation (1) are without

prejudice and shall not apply to cases falling under article 36(2), (4)

and (14) of the Act.

(3) In cases where there is good and sufficient cause to

dismiss the employee, the employer shall>

(a) cite duly substantiated grounds for her dismissal in

writing in her notice of termination<

(b) send a copy of such notice to the Director.

(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 her by these regulations.

(2) In cases referred to in sub-regulation 1, an employee

may present a complaint to the Industrial Tribunal set up in terms of

Part III of Title II of the Act, that her employer has refused to permit

her to exercise any right she has under these regulations.

Any person contravening the provisions of these regulations

shall be guilty of an offence and shall be liable, on conviction, to a fine

(multa) of not less than two hundred liri (Lm200).

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