Regulations, 2005

L.N. 317 of 2005

SOCIAL SECURITY ACT

(CAP. 318)

Equal Treatment in Occupational Social Security Schemes

Regulations, 2005

IN exercise of the powers conferred by article 134 of the Social

Security Act, the Minister for the Family and Social Solidarity has made

the following regulations>-

(1) The title of these regulations is the Equal Treatment in Title and

scope.

Occupational Social Security Schemes Regulations, 2005.

(2) These regulations give effect to the relevant provisions

of Council Directive 86#378#EEC, as amended by Council Directive

96#97#EC, on the implementation of the principle of equal treatment

for men and women in occupational social security schemes.

(3) The purpose of these regulations is to implement the

principle of equal treatment for men and women in occupational social

security schemes.

(4) These regulations shall be applicable to>

(a) members of the working population, including self-

employed or self-occupied persons, persons whose activity is

interrupted by illness, maternity, accident or involuntary

unemployment and persons seeking employment, retired and

disabled workers, and those claiming under them, in accordance

with the provisions of applicable law, and#or practice<

(b) occupational schemes which provide protection against

sickness, invalidity, old age, early retirement, industrial accidents,

occupational diseases and unemployment<

(c) occupational schemes which provide for other social

benefits, whether in cash or in kind, and in particular survivors’

benefits and family allowances if such benefits are accorded to

employed persons, constituting a consideration paid by the

employer to the worker by reason of the latter’s employment.

(5) These regulations shall not apply to>

(a)

individual contracts for self-employed workers<

(b) schemes for self-employed workers having only one

member<

(c) insurance contracts, in the case of salaried workers, to

which the employer is not a party<

(d) optional provisions of occupational schemes offered to

participants individually to guarantee them -

(i) additional benefits, or

(ii) a choice of date on which the normal benefits for

self-employed workers will commence or, a choice between

several benefits<

(e) occupational schemes in so far as benefits are financed

by contributions paid by workers on a voluntary basis.

(1) For the purposes of these regulations, unless the context

requires otherwise>

“the Act” means the Social Security Act<

“discriminatory treatment” means any distinction, exclusion,

restriction or difference in treatment, whether direct or indirect,

between men and women which is not justifiable in a democratic

society<

“occupational social security schemes” means schemes,

intended to supplement or replace the benefits provided by the

Act, whether membership of such schemes is compulsory or

optional, and the purpose of which is to provide employed, self-

employed and self-occupied persons in an undertaking or group

of undertakings, any area of economic activity, occupational sector

or group of sectors<

“principle of equal treatment” means the absence of direct or

indirect discriminatory treatment between men and women in

particular by reference to marital or family status.

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

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

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

the Act.

(1) It shall be unlawful for a person to subject another person Concept

discriminatory

to discriminatory treatment, whether directly or indirectly, particularly treatment.

with regard to>

(a)

the scope of the schemes and the conditions of access to

them<

(b) the obligation to contribute and the calculation of

contributions< and

(c) the calculation of benefits, including supplementary

benefits due in respect of a spouse or dependants, and the conditions

governing the duration and retention of entitlement to benefits.

(2) For the purposes of these regulations>

(a) direct discriminatory treatment shall be taken to occur

where one person is treated less favourably than another is, has

been, or would be, treated in a comparable situation<

(b) indirect discriminatory treatment shall be taken to occur

where an apparently neutral provision, criterion or practice would

put persons at a disadvantage when compared with other persons

unless that provision, criterion or practice is objectively justified

by a legitimate aim and the means of achieving that aim are

appropriate and necessary.

(1) Any provisions contrary to the principle of equal Provisions in

contracts,

treatment in any law, individual or collective contracts or agreements, agreements,

internal rules of undertakings or rules governing any registered other rules or

any other law.

organisation in terms of applicable law, shall be considered null and

void.

(2) The provisions referred to in sub-regulation (1) of this

regulation shall include such provisions>

(a) determining the persons who may participate in an

occupational scheme<

(b) fixing the compulsory or optional nature of participation

in an occupational scheme<

(c) laying down different rules as regards the age of entry

into the scheme or the minimum period of employment or

membership of the scheme required to obtain the benefits thereof<

(d) laying down different rules, except as provided for in

paragraphs (h), (i) and (j) of this sub-regulation, for the

reimbursement of contributions when a worker leaves a scheme

without having fulfilled the conditions guaranteeing a deferred right

to long-term benefits<

(e) setting different conditions for the granting of benefits

or restricting such benefits to workers of one or other of the sexes<

(f)

fixing different retirement ages<

(g) suspending the retention or acquisition of rights during

periods of maternity leave or leave for family reasons, which are

granted by law or agreement, and are paid by the employer<

(h) setting different levels of benefit, except in so far as

may be necessary to take account of actuarial calculation factors

which differ according to sex in the case of defined-contribution

schemes>

Provided that in the case of funded defined-benefit schemes,

certain elements including>

(i) the conversion into a capital sum of part of a periodic

pension<

(ii) the transfer of pension rights<

(iii) a revisionary pension payable to a dependant in

return for the surrender of part of a pension<

(iv) a reduced pension where the worker opts to take

early retirement<

may be unequal where the inequality of the amounts results from

the effects of the use of actuarial factors differing according to

sex, at the time when the scheme’s funding is implemented<

(i) setting different levels for workers’ contributions<

(j)

setting different levels for employers’ contributions,

except>

(i) in the case of defined-contribution schemes if the

aim is to equalize the amount of the final benefits or to make

them more nearly equal for both sexes<

(ii) in the case of funded defined-benefit schemes

where the employer’s contributions are intended to ensure

the adequacy of the funds necessary to cover the cost of the

benefits defined<

(k) laying down different standards or standards applicable

only to workers of a specified sex, except as provided for in

paragraphs (h), (i) and (j) of this sub-regulation, as regards the

guarantee or retention of entitlement to deferred benefits when a

worker leaves a scheme.

(3) For the purpose of these regulations, where the granting

of benefits is left to the discretion of the scheme’s management bodies,

the latter must comply with the principle of equal treatment.

Nothing in these regulations shall>

Positive

action.

(a) prejudice any provisions in any law relating to the

protection of women by reason of maternity<

(b) for the purposes of granting a pension by virtue of an

occupational scheme, preclude any employer from granting to

persons who have already reached retirement age but who have

not yet reached retirement age for the purposes of granting a

statutory pension, a pension supplement the aim of which is to

make equal the overall amount of benefit paid to these persons in

relation to the amount paid to persons of the other sex in the same

situation who have already reached statutory retirement age, until

such time when the persons benefiting from the supplement reach

the retirement age established by law.

Where in any occupational scheme, there is provision for a Flexible

Pension Age.

flexible pensionable age, then a claim by either men or women claiming

under the same conditions shall be construed to be compatible with

these regulations.

(1) Where an allegation is made that some form of Request

of report.

discriminatory treatment has occurred, the person making the allegation

shall have the right to send a written notification to the scheme’s

management body, hereinafter referred to as the management body, of

the alleged discriminatory treatment received, giving any relevant details

and requesting a reply. On receipt of such notification, the management

body shall submit a written reply within ten working days of the date of

receipt of such notification, giving the management body’s version of

events and any grounds for disputing the allegations, as well as an

explanation of any relevant procedures adopted by the management

body to prevent discriminatory treatment.

(2) Any correspondence referred to in sub-regulation (1) of

this regulation, shall be admissible in proceedings brought before any

court, and if it appears to the court that the management body

deliberately, and without reasonable excuse, omitted to reply within

ten working days of the date of receipt of such notification or that the

reply was evasive or equivocal, the court may draw any inference from

that fact that it considers just and equitable to draw, including an

inference that an unlawful act was committed.

An employee who is dismissed shall be regarded to have been

unfairly dismissed if the reason, or if more than one, the principal reason,

of the dismissal of that employee was a response on the part of the

employer to a complaint made at undertaking level, or to the institution

of legal proceedings aimed at enforcing compliance with the principle

of equal treatment.

Nothing shall prevent any association, organisation or other

legal entity, having a legitimate interest in ensuring that these regulations

are complied with, to engage itself either on behalf or in support of the

complainant, with his or her approval, in any judicial or administrative

procedure provided for the enforcement of obligations under these

regulations.

Any person contravening the provisions of these regulations

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

(multa) not exceeding one thousand liri.

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