Contracts of Service for a Fixed Term Regulations, 2007

L.N. 51 of 2007

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Contracts of Service for a Fixed Term Regulations, 2007

IN exercise of the powers conferred by article 34 of the

Employment and Industrial Relations Act, 2002, the Minister of

Education, Youth and Employment has made the following

regulations –

(1) The title of these regulations is the Contracts of Service

for a Fixed Term Regulations, 2007.

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

the Minister may establish by notice in the Gazette, and different dates

may be so established for different provisions thereof.

(1) For the purposes of these regulations –

“the Act” means the Employment and Industrial Relations

Act.

“comparable permanent employee” means a whole time

employee in the same establishment employed on a contract of

service of indefinite duration and who is engaged in the same or

similar work or occupation, due regard being given to other

considerations including seniority, qualifications and skills>

Provided that where there is no comparable permanent

employee in the same establishment, the comparison shall be made

by reference to collective agreements covering similar comparable

permanent employees in other establishments<

“contract of service for a fixed term” means a contract of

service entered into between an employer and an employee where

the end of the contract is determined by reaching a specific date,

or by completing a specific task, or through the occurrence of a

specific event.

(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 apply to employees who are in Applicability.

employment under a contract of service for a fixed-term.

(2) These regulations shall not apply to>

(a) persons appointed to serve on any Board of any statutory

or public Authority, Commission, Committee, Corporation or the

Board of any body corporate established by law or of any other

public sector entity as referred to in article 80(3) of the Act<

(b) assignments for the performance of a task of a specific

nature or a specific task to be performed in a specified period of

time given by the employer to an employee who is already

employed with the employer on an indefinite contract of service<

(c) persons undergoing training or work experience under

an approved training or apprenticeship or scholarship or trainee

scheme<

(d) a contract of service in the Public Service or the Public

Sector not made in accordance with the applicable laws of Malta

and in particular, the provisions of the Constitution.

Employees on a contract of service for a fixed term shall not Principle of non-

discrimination.

be treated in a less favourable manner than comparable permanent

employees solely because they have a contract of service for a fixed

term>

Provided that an employer may differentiate between the conditions

of employment of an employee on a fixed term contract and a comparable

employee on a contract of service for an indefinite time, if>

(a) the difference arises in view of the recognition of length

of service, experience, qualifications or conditions of pay and work

attached to the contract of service immediately preceding the

contract of service for a fixed term, and such other differences as

are justified on objective grounds< or

(b) the task for which the employee has been employed is

specific or has a top management nature and includes objective

considerations which justify such differentiation.

(1) It shall be the duty of the employer to inform employees Employer’s duty to

inform employees

on a contract of service for a fixed term about vacancies which become of vacancies.

available in the place of work and to give such employees the same

opportunity as other employees to secure work on a contract of service

for an indefinite time within the place of work.

(2) The employer may inform the employees by way of a

general announcement to be posted up at a suitable place in the place of

work.

The employer shall endeavour to facilitate access by

employees on a contract of service for a fixed term to appropriate training

opportunities to enhance their skills, career development and

occupational mobility.

(1) Without prejudice to regulation 3(2) hereof, a contract

of service for a fixed-term shall be transformed into a contract of service

for an indefinite period if>

(a) the employee has been continuously employed under

such a contract for a fixed term, or under that contract taken in

conjunction with a previous contract or contracts of service for a

fixed term in excess of a period of continuous employment of four

years< and

(b) the employer cannot provide objective reasons as

referred to in paragraphs (i)(a), (iii)(a) or (iv)(a) of sub-regulation

(6) of this regulation to justify the limitation of a renewal of such

a contract for a fixed term>

Provided that in the computation of the period of four years

mentioned in paragraph (a) above, any period during which the

employee was continuously employed prior to the coming into

force of these regulations shall also be taken into consideration.

(2) The effective date when an employee shall be considered

to have been employed on an indefinite basis is the date following that

when the four-year period has expired, but the period in continuous

employment on one or more fixed-term contract or contracts of service

shall be taken into account for all other purposes, including seniority

and redundancy.

(3) This regulation shall be without prejudice to the

transformation of the contract of service of an employee who was

previously employed on a fixed term contract to one of an indefinite

duration if the said employee is retained in employment and is not given

a new contract of service for a fixed-term within the first twelve working

days following the expiry of the previous contract, as established in

article 34 (2) of the Act.

(4) Without prejudice to the generality of paragraph (b) of

sub-regulation (1) of this regulation, the objective reasons which the

employer may plead for the retention of an employee on a fixed-term

contract may include that the employee>

(a) was employed as a casual substitute or similar employee

on a back to back basis or as a temporary substitute employee<

(b) occupies a management position including employees

in Scales 1 to 4 inclusive in the Public Service or a comparable

grade in the public sector<

(c) was engaged till the completion of a specific task or the

occurrence of a specific event or when a specific date is forecast

for the termination of employment<

(d) was employed by means of an appointment made to

safeguard particular security or economic interests of the State or

was employed in missions or postings abroad<

(e) is a person employed as a person of trust to serve in the

office of a publicly elected body or of a holder of a publicly elected

office, or is employed by a person referred to in paragraph (a) of

sub-regulation (2) of regulation 3 to serve as a member of the private

staff, or is employed to serve as advisor or consultant or in any

other capacity in the Public Service or public or private sector as a

person of trust.

(5) For the purposes of this regulation, the term

“continuously employed” shall include those contracts of a fixed-term

which are renewed within six months from their termination and this

period between the contracts shall be included in the calculation of the

four year qualifying period referred to in regulation 7(1)(a)>

Provided that another contract of service for a fixed-term

entered into after the lapse of the six month period shall not be

considered as continuous employment >

Provided further that another contract of service for a fixed-

term entered into within the six month period after the termination

of a previous contract shall be considered as continuous

employment if the tasks under the subsequent contract are

substantially the same as the tasks under the previous contract of

employment>

Provided also that the tasks shall still be considered to be

substantially the same even though they encompass changes related

to technical progress or changes in work practices or in the way

the tasks are carried out or the contract includes a promotion related

to work assigned in any previous contract.

(6) (i) Without prejudice to the rights of the employee

under these regulations, whenever an employer intends to enter into a

contract of service for a fixed term with a prospective employee the

employer shall list in writing in that contract>

(a) the objective reasons, if any, why the contract to be

entered into should not be converted into one of indefinite duration

if the employee is continuously employed on one or more

successive fixed-term contracts for a period exceeding four years,

or

(b) the actual wages and other conditions of employment

attached to the contract of service if this will automatically become

indefinite in the absence of objective reasons.

(ii) If an employee on a fixed term contract is

continuously employed on one or more successive contracts for a period

exceeding four years>

(a) in the absence of compliance with sub-paragraph (a) of

paragraph (i) hereof, the employee’s contract of employment shall

automatically become an indefinite contract of employment, and

(b) in the absence of compliance with sub-paragraph (b) of

paragraph (i) hereof, the employee shall enjoy the same conditions

of employment enjoyed under the fixed-term contract.

(iii) In the case of an employee on a fixed-term contract

whose period of continuous employment has not exceeded four years

on the date of entry into force of this sub-paragraph, the employer shall,

either before the expiry of the current contract or within a period of six

months from the date of entry into force of these regulations, whichever

is the earlier, furnish the employee in writing with>

(a) the objective reasons, if any, why the contract which

had been entered into should not be converted into one of indefinite

duration if the employee is employed on one or more successive

contracts for a continuous period exceeding four years, or

(b) the actual wages and other conditions of employment

attached to the contract once this automatically becomes indefinite

in the absence of objective reasons.

(iv) In the case of an employee in the Public Service

or public sector on a fixed-term contract whose period of continuous

employment on one or more successive fixed-term contracts has

exceeded four years and who is still in employment on the date of entry

into force of this sub-paragraph, the employer shall furnish that employee

in writing, within a six month period from the date of entry into force of

this sub-paragraph, with>

(a) the objective reasons, if any, why the contract which

had been entered into should not be converted into one of indefinite

duration if the employee has been employed on one or more

successive contracts for a continuous period exceeding four years,

or

(b) the actual wages and other conditions of employment

attached to the contract once this automatically becomes indefinite

in the absence of objective reasons.

(v) If an employee on a fixed term contract referred to

in paragraph (iii) or (iv) above has been employed or is subsequently

employed on one or more successive contracts for a continuous period

exceeding four years>

(a) in the absence of a document listing the reasons as

referred to in paragraphs (iii)(a) or (iv)(a) hereof and furnished to

the employee within the relevant applicable period, the employee’s

contract of employment shall automatically become an indefinite

contract of employment as provided for in sub-regulations (2) or

(7) hereof as the case may be, and

(b) in the absence of written information referred to in

paragraphs (iii)(b) and (iv)(b) hereof and furnished to the employee

within the relevant applicable period, the employee shall on

conversion to an indefinite contract of service enjoy the same

conditions of employment enjoyed under the fixed-term contract.

(7) Subject to paragraph (iv) of sub-regulation (6) hereof,

employees in employment in the public service or public sector on the

date of entry into force of these regulations who, during the period

between 1 st May 2004 and the date of the said entry into force, completed

a period of more than four years continuous employment and in respect

of whom there is no objective reason justifying their retention on a

fixed-term contract as referred to in sub-regulation (4) hereof, shall be

deemed to have become employees on an indefinite contract with effect

from the day following that when the said four-year period expired.

(8) Nothing in sub-regulation (7) hereof shall be interpreted

as having the effect of reviving any employment relationship which

has been terminated prior to the date of entry into force of these

regulations or of invalidating any such termination.

(9) Without prejudice to the provisions of paragraphs (iv)(b)

and (v)(b) of sub-regulation (6) hereof, nothing in these regulations

shall be interpreted as conferring on employees who have acquired an

indefinite status the right to carry with this status benefits which are

particular to definite contracts.

(1) An employee may present a complaint to the Industrial

Tribunal that his employer has infringed a right conferred on him by

these regulations.

(2) Subject to the provisions of sub-regulation (3) of this

regulation, the Industrial Tribunal shall not consider a complaint under

this regulation unless it is presented within a period of four months,

beginning from the date of the less favourable treatment.

(3) Where an employee presents a complaint under this

regulation and the employer claims that the treatment is justified on

objective grounds, it shall be incumbent on the employer to prove that

the less favourable treatment is so justified on objective grounds.

Any person contravening the provisions of these regulations

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

of not more than five hundred liri (Lm500).

The Contracts of Service for a Fixed Term Regulations, 2002,

are hereby being revoked.

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

Lm0.28 (€0.65)