Posting of Workers in Malta Regulations, 2016

L.N. 223 of 2016

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Posting of Workers in Malta Regulations, 2016

IN exercise of the powers conferred by article 31 of the

Employment and Industrial Relations Act, the Minister for Social

Dialogue, Consumer Affairs and Civil Liberties has made the

following regulations:-

(1) The title of these Regulations is the Posting of Citation.

Workers in Malta Regulations, 2016.

(2) The object of these regulations is to give effect to the

relevant provisions of EU Directive 96/71/EC and EU Directive

2014/67.

(3) These regulations aim to guarantee respect for an

appropriate level of protection of the rights of posted workers for the

cross-border provision of services and establish a set of appropriate

provisions, measures and control mechanisms necessary for better

and more uniform implementation, application and enforcement in

practice of Directive 96/71, including measures to prevent and

sanction any abuse and circumvention of the applicable rules.

(1) In these regulations, unless the context otherwise Definitions.

requires:–

"Act" means the Employment and Industrial Relations Act;

"Commission" means the Commission of the European Union;

"comparable employee" means an employee in an undertaking

located in Malta who is engaged in the same or similar work or

occupation, due regard being given to other considerations including

seniority, qualification and skills;

"competent authority in Malta" means the Department of

Industrial and Employment Relations;

"foreign service provider" means a service provider which is

established in a Member State other than Malta;

"Member State" means a Member State of the European Union

or of the European Economic Area and the European Free Trade

Area;

"posted employee" means an employee of a foreign service

provider who does not normally work in Malta but who for a limited

period of time is sent by the foreign service provider to work in

Malta;

"requesting authority" means the competent authority of a

Member State which makes a request for assistance, information,

notification or recovery of a penalty and, or fine;

"requested authority" means the competent authority in Malta,

to which a request for assistance, information, notification or

recovery of a penalty and, or fine is made.

(2) Subject to the provisions of sub-regulation (1), 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 the extent that the

foreign service providers referred to in the preceding regulation

(a)

send posted employees in Malta on their account

and under their direction, under a contract concluded between

the foreign service provider making the posting and the party

for whom the services are intended, provided there is an

employment relationship between the foreign service provider

and the worker during the period of posting; or

(b) send posted employees to an establishment or to an

undertaking in Malta which is owned by the foreign service

provider, provided there is an employment relationship between

the foreign service provider and the worker during the period of

posting; or

(c)

being temporary employment undertakings or

placement agencies, hire out a worker to a user undertaking

established or operating in Malta, provided there is an

employment relationship between the temporary employment

undertaking, or placement agency, and the worker during the

period of posting.

(2) These regulations shall not apply to personnel employed

on vessels which fall under the provisions of the Merchant Shipping

Act.

(3) Nothing contained in these regulations shall prevent

application of terms and conditions of employment which are more

favourable to workers.

(1) For the purpose of implementing, applying and Identification of

enforcing these regulations, the competent authority in Malta shall a posting

make an overall assessment of all factual elements which assist it in prevention

abuse and

carrying out checks and controls and where there is reason to believe circumvention.

that a worker may not qualify as a posted worker in terms of these

regulations.

(2) The elements mentioned in this regulation are indicative

factors in the overall assessment to be made and shall not be

considered in isolation. The assessment of these elements shall be

adapted to each specific case and shall take account of the

specificities of the situation.

(3) In order to determine whether an undertaking, which is the

service provider, genuinely performs substantial activities, other than

purely internal management and, or administrative activities, the

competent authority in Malta shall make an overall assessment of all

factual elements characterising those activities. Such elements may

include in particular

(a)

the place where the undertaking has its registered

office and administration, uses office space, pays taxes and

social security contributions and, where applicable, in

accordance with national law has a professional licence or is

registered with the chambers of commerce or professional

bodies;

(b) the place where posted workers are recruited and

from which they are posted;

(c)

the law applicable to the contracts concluded by the

undertaking with its workers, on the one hand, and with its

clients, on the other;

(d) the place where the undertaking performs its

substantial business activity and where it employs

administrative staff;

(e)

the number of contracts performed and, or the size

of the turnover realised in the Member State of establishment,

taking into account the specific situation of, inter alia, newly

established undertakings and small and medium sized

enterprises.

(4) In order to assess whether a posted worker temporarily

carries out his work in Malta, all factual elements characterising such

work and the situation of the worker shall be examined by the

competent authority in Malta. Such elements may include in

particular

(a)

the work is carried out for a limited period of time in

Malta;

(b)

the date on which the posting starts;

(c)

the posting takes place to Malta as a Member State

other than the one in or from which the posted worker habitually

carries out his work according to Regulation (EC) No 593/2008

(Rome I) and, or the Rome Convention;

(d) the posted worker returns to or is expected to resume

working in the Member State from which he or she is posted

after completion of the work or the provision of services for

which he or she was posted;

(e)

the nature of activities;

(f)

travel, board and lodging or accommodation is

provided or reimbursed by the employer who posts the worker

and, if so, how this is provided or the method of reimbursement;

(g) any previous periods during which the post was

filled by the same or by another worker.

(5) The failure to satisfy one or more of the factual elements

set out in this regulation shall not automatically preclude a situation

from being characterised as one of posting.

(1) The conditions of work which are given to posted

employees who have notified their intention to work in Malta shall

not be less than the minimum conditions of work given to a

comparable employee by virtue of the Act, or any regulations issued

thereunder or by virtue of any other legislation regulating the class of

employment of the posted employee in the same place of work

Provided that any allowances specific to the posting

granted to the posted employee, shall be considered to be part of the

wage payable to a comparable employee, unless they are paid as

reimbursement of expenses actually incurred on account of the

posting, including expenditure on travel, board and lodging.

(2) All posted employees covered by these regulations shall be

entitled to receive equality of treatment as the comparable employees

and in particular they shall have equal access to employment rights

and health and safety rights under Maltese law.

(3) The term "equality of treatment" shall, for the purposes of

these regulations, consist of

(a)

maximum work periods and minimum rest periods

as applied to various classes of employees;

(b) minimum paid annual holidays as applied to various

classes of employees;

(c)

minimum rates of pay, including overtime rates as

applied to various classes of employees;

(d) equality of treatment between men and women and

other provisions of non-discrimination in accordance with the

laws of Malta;

(e)

protective measures with regards to terms and

conditions of employment protecting pregnant women or

women who have given birth a short while before;

(f)

protective measures in accordance with the laws of

Malta with regards to terms and conditions of employment

protecting children and young people;

(g) measures in accordance with the laws of Malta

relating to health, safety and hygiene at work;

(h) the conditions of hiring out of workers, in particular

the supply of workers by temporary employment undertakings

Provided that in cases of initial assembly and, or

first installation of goods where such activity is an integral part

of contract for the supply of goods necessary for taking the

goods supplied into use and carried out by the skilled and, or

specialist workers of the supplying organisation, sub-regulation

(3)(b) and (c) shall not apply if the period of posting does not

exceed eight days, so long as the work involved is not related to

all building work relating to construction, repair, upkeep,

alteration or demolition of buildings, and in particular

excavation, earth moving, actual building work, assembly and

dismantling of prefabricated elements, fitting out or installation,

alterations, renovation, repairs, dismantling, demolition,

maintenance, upkeep, painting and cleaning work and

improvements

Provided further that sub-regulation (3)(c) shall not

apply in the cases referred to in regulation 3(1)(i) and (ii) when

the length of the posting does not exceed one month.

(4) The length of the posting shall be calculated on the basis of

a reference period of one year from the beginning of the posting

Provided that for the purpose of such calculation, account shall be

taken of any previous periods for which the post has been filled by a

posted worker.

(5) When a worker is posted to Malta, the inspection of terms

and conditions of employment which must be complied with in

accordance with this regulation is the responsibility of the competent

authority in Malta in cooperation, where necessary, with that of the

Member State of establishment in terms of these regulations

Provided that inspections shall be based primarily on a risk

assessment which may identify the sectors of activity in which the

employment of workers posted for the provision of services is

concentrated. The carrying out of large infrastructural projects, the

existence of long chains of subcontractors, geographic proximity, the

special problems and needs of specific sectors, the past record of

infringement, as well as the vulnerability of certain groups of workers

may in particular be taken into account.

(6) Where Malta is the member state of establishment of the

service provider, the competent authority in Malta shall assist the

Member State to which postings takes place to ensure compliance

with EU Directive 96/71/EC and EU Directive 2014/67. This shall

not prejudice the powers of the Member State to which the posting

takes place to monitor, control or take any necessary supervisory or

enforcement measures.

(7) In the cases where facts indicate possible irregularities, the

competent authority in Malta shall, on its own initiative,

communicate to the Member State concerned any relevant

information without undue delay.

(8) When a worker is posted to Malta, the competent authority

in Malta may ask the competent authority of the Member State of

establishment, in respect of each instance where services are provided

or each service provider, to provide information as to the legality of

the service provider’s establishment, the service provider’s good

conduct, and the absence of any infringement of the applicable rules.

(9) When Malta is the country of establishment of the service

provider, the competent authority in Malta shall provide the

information contained in sub-regulation (8) in terms of regulation 7.

(10) Without prejudice to the right to request Member States

where a worker is posted to carry out checks and controls, nothing in

this regulation shall impose an obligation on the competent authority

in Malta, in cases where Malta is the country of establishment, to

carry out factual checks and controls in the territory of the host

Member State in which the service is provided.

(11) Service providers established in a non-Member State shall

not be given more favourable treatment than service providers

established in a Member State.

(1) It shall be the duty of the service provider posting Administrative

the worker to Malta to notify the competent authority in Malta of the requirements

and control

intention to post a worker to Malta prior to the date of posting of the measures.

worker, at the latest at the commencement of the posting, which

notification shall contain the relevant information necessary in order

to allow factual controls at the workplace. This notification, effected

in the English language, shall include

(a)

the identity of the service provider;

(b) the address in the country where the worker

habitually carries out his work;

(c)

the anticipated number of clearly identifiable posted

workers;

(d)

the name, date of birth and nationality of the posted

worker;

(e)

the persons referred to sub-regulations (6) and (7);

(f)

the anticipated duration, envisaged beginning and

end date of the posting;

(g) the nature of the services justifying the posting,

including the type of work to be carried out; and

(h) the name and address of the undertaking in Malta to

which the worker is to be posted.

(2) A copy of the notification referred to in sub-regulation (1),

together with updated records sufficient to show that the provisions of

these regulations are being complied with, shall be kept at the

undertaking in Malta making use of the services of the posted worker.

(3) It shall be the duty of the service provider posting the

worker to Malta to keep, to make available and to retain copies, in

paper or electronic form, of the employment contract or an equivalent

document within the meaning of Council Directive 91/533/EEC,

including, where appropriate or relevant, the additional information

referred to in article 4 of that Directive, payslips, time-sheets

indicating the beginning, end and duration of the daily working time

and proof of payment of wages or copies of equivalent documents

during the period of posting in an accessible and clearly identified

place in the undertaking making use of the services of the posted

worker.

(4) It shall be the duty of the service provider posting the

worker to Malta to deliver the documents referred to in sub-regulation

(3) of this regulation, after the period of posting, at the request of the

competent authority in Malta, within a reasonable period of time.

(5) It shall be the duty of the service provider to provide a

translation of the documents referred to in sub-regulation (3) into the

English language.

(6) It shall be the duty of the service provider to designate a

person to liaise with the competent authority in Malta, and to send out

and receive documents and, or notices, where appropriate.

(7) It shall be the duty of the service provider to designate a

contact person, who may be different from the one designated in

terms of sub-regulation (6), to act as a representative in Malta through

whom the social partners may seek to engage the service provider to

enter into collective bargaining during the period in which the

services are provided. It is not required that such contact person is

present in Malta but he has to be available on a reasonable and

justified request.

(8) The obligations imposed in terms of this regulation are to

be disseminated as required by regulation 7(8), and shall be deemed

to be fulfilled in case where they are complied with by electronic

means.

(1) The competent authority in Malta shall be responsible

for the enforcement of the provisions of these regulations and for

liaising and cooperating with the Commission and the authorities

having corresponding responsibilities in other Member States on

issues relating to the implementation, application and enforcement in

practice of Directives 96/71/EC and 2014/67. To this effect, the

competent authority in Malta shall work in close cooperation and

provide the corresponding authorities in other Member States with

assistance without undue delay. Such mutual administrative

cooperation and assistance shall be provided free of charge, and shall

be implemented through the Internal Market Information System

(IMI) established by Regulation 1024/2012.

(2) The co-operation with other authorities referred to in sub-

regulation (1) shall include

(a)

replying to reasoned requests for information,

including information with respect to a possible recovery of an

administrative penalty and, or fine, or the notification of a

decision imposing such a penalty and, or fine as contemplated in

these regulations; and

(b) carrying out checks, inspections and investigations

with respect to the situations of posting referred in regulation 3,

including the investigation of any non-compliance or abuse of

applicable rules on the posting of workers.

(3) The co-operation with other authorities referred to in sub-

regulation (1) may include the sending and service of documents.

(4) For the purpose of responding to a request for assistance

from competent authorities in another Member State, the competent

authority in Malta shall ensure that service providers established in

Malta supply the latter with all the information necessary for

supervising their activities, failing which the service providers shall

be guilty of an offence.

(5)

In the event of difficulty in meeting a request for

information or in carrying out checks, inspections or investigations,

the competent authority in Malta shall, without delay, inform the

requesting authority with a view to finding a solution.

(6) The information requested to the competent authority in

Malta by corresponding authorities in other Member States or by the

Commission shall be supplied by electronic means within the

following time limits

(a)

in urgent cases requiring the consultation of

registers, such as those on confirmation of the VAT registration,

for the purpose of checking an establishment in Malta, as soon

as possible and up to a maximum of two working days from the

receipt of the request

Provided that the reason for the urgency shall be

clearly indicated in the request, including facts to substantiate

the urgency

Provided further that the registers mentioned in this

paragraph shall be consulted by other competent authorities if

such registers are listed by the Member States in the Internal

Market Information System established by Regulation 1024/

2012;

(b) in cases of all other requests for information, up to a

maximum of twenty five working days from the receipt of the

request, unless a shorter time limit is mutually agreed between

the competent authority in Malta and the corresponding

competent authority in the other Member State.

(7) Any information exchanged or transmitted in terms of this

regulation

(a) shall be used only in respect of the matter or matters for

which it was requested; and

(b) shall not preclude the competent authority in Malta from

taking measures to investigate and prevent alleged breaches of these

regulations.

(8) The competent authority in Malta shall facilitate access to

information on the terms and conditions of employment referred to in

regulations 5 and 6, which are to be applied and complied with by

service providers by

(a)

making such information generally available free of

charge in a clear, transparent, comprehensive and easily

accessible way at a distance and by electronic means, in formats

and in accordance with web accessibility standards that ensure

access to persons with disabilities;

(b) ensuring that the applicable terms and conditions

and the relevant laws are indicated clearly, in a detailed and

user-friendly manner and in an accessible format on a single

official national website and by other suitable means;

(c)

ensuring that the information is easily-available to

workers and service providers free of charge in English, which

information shall include the main labour conditions applicable,

the description of the procedures to lodge complaints and upon

requests in formats accessible to persons with disabilities,

further detailed information on the employment and social

conditions applicable to posted workers;

(d) improving the accessibility and clarity of the

relevant information, particularly that found on the single

official national website;

(e)

indicating a contact person in charge of dealing with

requests for information and indicating the bodies and

authorities to which workers and undertakings can turn for

general information on the applicable law; and

(f)

keeping all the information up to date.

(1) This regulation shall apply to the cross-border Cross-border

enforcement of financial administrative penalties and, or fines, enforcement

financial

including fees and surcharges, imposed by competent authorities or administrative

penalties and, or

confirmed by administrative or judicial bodies, on a service provider fines.

established in Malta for failure to comply with the applicable rules on

posting of workers in another Member State.

(2) At the request of a requesting authority, the competent

authority in Malta, hereinafter referred to as the ‘requested authority’,

shall recover an administrative penalty and, or fine that has been

imposed by a decision in accordance with the laws and procedures of

the requesting member state by a competent authority or confirmed

by an administrative or judicial body, which decision constitutes res

judicata.

(3) At the request of a requesting authority, the requested

authority shall notify

(a)

a decision imposing an administrative penalty and,

or fine in accordance with the laws and procedures of the

requesting Member State by a competent authority or confirmed

by an administrative or judicial body, which decision constitutes

res judicata; and

(b) any other relevant document related to the recovery

of the aforementioned penalty and, or fine, including the

judgment or final decision, which may be in the form of a

certified copy, that constitutes the legal basis and title for the

execution of the request for recovery.

(4) In order for the requested authority to be able to carry out

its obligations in terms of sub-regulations (2) and (3), the requesting

authority’s request for recovery of an administrative penalty and, or

fine or the requesting authority’s request for notification of a decision

imposing such a penalty and, or fine shall

(a)

be made in accordance with the laws, regulations

and administrative practices in force in the requesting

authority’s Member State;

(b) only be made when the requesting authority is

unable to recover or notify in accordance with its laws,

regulations and administrative practices; and

(c)

relate to a penalty and, or fine, and to an underlying

claim and, or instrument permitting its enforcement in the

requesting member state which are not contested or challenged

in that Member State.

(5) The request of the requesting authority for recovery of an

administrative penalty and, or fine as well as the notification of a

decision concerning such a penalty and, or fine shall be carried out

without undue delay by means of the Internal Market Information

System established by Regulation 1024/2012 and shall include

(a)

the name and known address of the addressee, and

any other relevant data or information for the identification of

the addressee;

(b) a summary of the facts and circumstances of the

infringement, the nature of the offence and the relevant

applicable rules;

(c)

the instrument permitting enforcement in the

requesting Member State and all other relevant information or

documents, including those of a judicial nature, concerning the

underlying claim, administrative penalty and, or fine;

(d) the name, address and other contact details

regarding the competent authority responsible for the

assessment of the administrative penalty and, or fine, and, if

different, the competent body where further information can be

obtained concerning the penalty and, or fine or the possibilities

for contesting the payment obligation or decision imposing it;

(e)

in the case of a request for notification of a decision,

the purpose of the notification and the period within which it

shall be effected; and

(f)

in the case of a request for recovery, the date when

the judgment or decision has become enforceable or final, a

description of the nature and amount of the administrative

penalty and, or fine, any dates relevant to the enforcement

process, including whether, and if so how, the judgment or

decision has been served on the defendant and, or given in

default of appearance, a confirmation from the requesting

authority that the penalty and, or fine is not subject to any

further appeal, and the underlying claim in respect of which the

request is made and its different components.

(6) Unless the requested authority decides to invoke any of the

grounds of refusal provided in sub-regulation (9), the requested

authority, upon receipt of a request to recover or to notify in terms of

this regulation, shall recognize it without any further formality being

required and shall take all the necessary measures for its execution,

and that request to notify or that request to recover shall be deemed to

have the same effect as if it had been made by the requesting member

state

Provided that the requested authority shall take all the

necessary steps to notify the service provider of the request for

recovery or of the decision imposing an administrative penalty and, or

fine and of the relevant documents, where necessary, as soon as

possible but not later than one month of receipt of the request.

(7) The requested authority, shall, by means of a judicial letter

served on the service provider by whom the administrative penalty

and, or fine is due, require the service provider to pay the

administrative penalty and, or fine in terms of this regulation. Upon

the service of such a judicial letter, the claim of the requested

authority contained in such judicial letter shall, after the lapse of ten

days from such service, constitute an executive title for the purpose of

Title VII of Part I of Book Second of the Code of Organization and Cap. 12

Civil Procedure.

(8) The requested authority shall as soon as possible inform

the requesting authority of

(a)

the action taken on its request for recovery and

notification and, more specifically, of the date on which the

addressee was notified; and

(b) the grounds of refusal referred to in sub regulation

(9) of this regulation, in the case where the requested authority

refuses to execute a request for recovery of an administrative

penalty and, or fine or to notify a decision imposing an

administrative penalty and, or fine.

(9) The requested authority shall not execute a request

(a)

for recovery or notification if the request does not

contain the information required in sub-regulation (5), is

incomplete or manifestly does not correspond to the underlying

decision;

(b)

for recovery if

(i) following inquiries by the requested

authority, it is obvious that the envisaged costs or

resources required to recover the administrative penalty

and, or fine are disproportionate in relation to the amount

to be recovered or would give rise to significant

difficulties; or

(ii) the overall financial penalty and, or fine is

less than three hundred and fifty euro (€350) or the

equivalent to that amount; or

(iii) the fundamental rights and freedoms of

defendants and legal principles that apply to them in

accordance with the law of the requested member state are

not respected.

(10) Disputes concerning the enforcement measures taken in

Malta or concerning the validity of a notification made by the

requested authority shall be brought before the Maltese Courts in

accordance with Maltese Law.

(11) Any amounts recovered in terms of this regulation shall

accrue to the requested authority. The latter shall recover the amounts

due in Euros. If necessary, the requested authority shall convert the

penalty and, or fine into the currency of the requested state at the rate

of exchange applying on the date when the penalty and, or fine were

imposed.

(12) Member States shall not claim from each other the

reimbursement of costs arising from any mutual assistance which

they grant each other in terms of these regulations.

(1) When a posted employee alleges that he has been

treated in a manner which infringes any right conferred on him by

these regulations, such employee may submit a written request to the

employer to provide him with a written statement in which shall be

listed the reasons, if any, for any difference in treatment and such

statement shall be provided by the employer within ten working days

from the date of the request.

(2) Without prejudice to any other right regarding the

institution of proceedings in another state, a posted worker shall have

the right to institute proceedings in the courts of Malta to safeguard

any right granted to him by virtue of these regulations, even after the

relationship in which the alleged infringement has occurred has ended

and even where the posted worker has left Malta.

(3) Any correspondence referred to in sub-regulation (1) shall

be admissible in proceedings brought before the courts, and if it

appears to the court that the respondent deliberately, and without

reasonable excuse, omitted to reply within ten working days of the

date of receipt of such notification or that his 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 he

committed an unlawful act.

(4) The provisions in sub-regulation (1) requiring the

respondent to submit a reply shall not apply if, on the date that the

request was made, proceedings had already been initiated on the

matter in front of the Courts of Law.

(5) Any employer who grants unfavourable treatment to a

posted worker who has brought judicial proceedings in terms of this

regulation shall be guilty of an offence according to these regulations.

In any civil proceedings instituted by the posted worker Subcontracting

with respect to the set of rights granted by regulation 5, where there is liability.

a subcontracting chain, the posted worker can hold the contractor of

which his employer is a direct subcontractor civilly liable in addition

to or in place of the employer

Provided that the liability referred to in this regulation

shall be limited to the posted worker’s rights acquired under the

contractual relationship between the contractor and his subcontractor.

Nothing shall prevent any association, organization or Representation.

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

regulations are complied with, to engage itself either on behalf of or

in support of the posted worker or his employer, with his approval, in

any judicial procedure which is provided for the enforcement of

obligations under these regulations.

Any person contravening the provisions of these Offences.

regulations shall be guilty of an offence and shall, on conviction, be

liable to a fine (multa) of not less than one hundred and seventeen

euro (€117) and not more than one thousand, one hundred and sixty-

five euro (€1,165)

Provided that in the institution of criminal proceedings in

terms of the Act, where the employer is convicted of

(a)

having failed to pay the posted worker in terms of

regulation 5(3)(c);

(b)

having unduly withheld back-payments, refund of

taxes or social security contributions from the posted worker’s

salaries; or

(c)

having withheld or deducted from the posted

worker’s salaries excessive costs for accommodation,

the court shall, at the request of the prosecution, besides awarding

the punishment imposed by this regulation, order the offender, on

proof of the amount, to refund or pay to the posted worker the said

amount due by him

Provided further that nothing in this regulation shall

derogate from any right of the posted worker to recover by any other

means any amount due to him, including in terms of regulation 9.

The Posting of Workers in Malta Regulations are hereby

repealed.

€1.44