Posting of Workers in Malta (Amendment) Regulations, 2020

L.N. 262 of 2020

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Posting of Workers in Malta (Amendment) Regulations, 2020

IN EXERCISE of the powers conferred by article 48 of the

Employment and Industrial Relations Act, the Minister within the

Office of the Prime Minister as Minister responsible for Employment

and Industrial Relations, has made the following regulations:-

(1) The title of these regulations is Posting of Workers in

Malta (Amendment) Regulations, 2020 and they shall be read and

construed as one with the Posting of Workers in Malta Regulations,

hereinafter referred to as "the principal regulations".

(2)

These regulations shall come into force on the 30th July,

2020.

Regulation 1 of the principal regulations, shall be amended

as follows

(a) sub-regulation (2) thereof, shall be substituted by the

following

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

to the relevant provisions of Directive 96/71/EC of the

European Parliament and of the Council of 16 December

1996 concerning the posting of workers in the framework

of the provision of services as amended by Directive (EU)

2018/957 of the European Parliament and of the Council of

28 June 2018, and the provisions of Directive 2014/67/EU

of the European Parliament and of the Council of 15 May

2014 on the enforcement of Directive 96/71/EC concerning

the posting of workers in the framework of the provision of

services and amending Regulation (EU) No 1024/2012 on

administrative cooperation through the Internal Market

Information System ( ‘the IMI Regulation’).";

(b) in sub-regulation (3) thereof, the words "Directive 96/

71" shall be substituted by the words "Directive 96/71 and

Directive 2014/67"; and

(c) immediately after sub-regulation (3) thereof, there

shall be added the following new sub-regulation

"(4) These regulations shall not in any way affect

the exercise of fundamental rights, including the right or

freedom to strike or to take other legal action, and the right

to negotiate, conclude and enforce collective agreements,

or to take collective action.".

In sub-regulation (1) of regulation 2 of the principal Amends

regulations, immediately after the definition "posted employee" there regulation

the principal

shall be added the following new definition

regulations.

" "remuneration" means all the constituent elements of

remuneration rendered mandatory by the Act, orders or

regulations issued thereunder;".

Sub-regulation (1) of regulation 3 of the principal Amends

regulation 3 of

regulations, shall be amended as follows

the principal

regulations.

(a) in paragraph (a) thereof, immediately after the words

"for whom the services are intended, provided" there shall be

added the word "that";

(b) in paragraph (b) thereof, immediately after the words

"which is owned by the foreign service provider, provided" there

shall be added the word "that"; and

(c)

paragraph (c) thereof, shall be amended as follows

(i) immediately after the words "operating in

Malta, provided" there shall be added the word "that"; and

(ii) the words "during the period of posting." shall

be substituted by the words "during the period of posting:"

and immediately thereafter, there shall be added the

following new provisos

"Provided that the foreign service providers

referred to in this paragraph shall guarantee the

posted workers the terms and conditions of

employment laid down in the Temporary Agency

Workers Regulations, which apply to temporary S.L. 452.106.

agency workers hired out by temporary work

agencies established in Malta, and the user

undertaking shall inform the foreign service provider

of these terms and conditions of employment

Provided further that when a worker who has

been hired out by a temporary employment

undertaking or temporary placement agency to a user

undertaking, established or operating in Malta in

terms of this paragraph, carries out work in the

framework of the transnational provision of services

within the meaning of this regulation by the user

undertaking in the territory of a Member State other

than where the worker normally works for the

temporary employment undertaking or temporary

placement agency, or for the user undertaking

(a) the worker shall be considered to be

posted to the territory of that Member State by

the temporary employment undertaking or

temporary placement agency with which the

worker is in an employment relationship;

(b) the

temporary

employment

undertaking or temporary placement agency

shall be considered to be the foreign service

provider making the posting in terms of these

regulations and shall fully comply with the

provisions of these regulations; and

(c) the user undertaking shall inform

the temporary employment undertaking or

temporary placement agency which hired out

the worker in due time before commencement

of the work.".

Immediately after sub-regulation (5) of regulation 4 of the

principal regulations, there shall be added the following new sub-

regulation

"(6) Where, following an overall assessment made in

terms of this regulation, it is established that an undertaking is

improperly or fraudulently creating the impression that the

situation of a worker falls within the scope of these regulations,

that worker shall enjoy all rights relating to the terms and

conditions of employment by virtue of the Act and the orders or

regulations issued thereunder and by virtue of any applicable

collective agreement.".

Sub-regulations (1), (2) and (3) of regulation 5 of the

principal regulations, shall be substituted by the following

"5. (1) Without prejudice to the provisions of

paragraph (c) of sub-regulation (1) of regulation 3, the foreign

service providers referred to in regulation 3, shall guarantee, on

the basis of equality of treatment, workers who are posted to

Malta the terms and conditions of employment covering the

following matters laid down in the Act, or in any regulations or

orders issued thereunder

(a) maximum work periods and minimum rest

periods as applied to various classes of employees;

(b) minimum paid annual leave as applied to

various classes of employees;

(c) remuneration, including overtime rates as

applied to various classes of employees

Provided that supplementary occupational

retirement pension schemes shall be excluded from such

remuneration;

(d) the conditions of hiring-out of workers, in

particular the supply of workers by temporary employment

undertakings;

(e) measures in accordance with the laws of Malta

relating to health, safety and hygiene at work;

(f) protective measures with regard to the terms

and conditions of employment protecting pregnant women

or women who have recently given birth;

(g) protective measures in accordance with the

laws of Malta with regards to terms and conditions of

employment protecting children and young people;

(h) equality of treatment between men and women

and other provisions of non-discrimination in accordance

with the laws of Malta;

(i) the conditions of workers’ accommodation

where this is provided by the employer to workers who are

away from their regular place of work;

(j) allowances or reimbursement of expenditure to

cover travel, board and lodging expenses where this is

provided by the employer to workers away from home for

professional reasons

Provided that this paragraph shall apply

exclusively to travel, board and lodging expenditure

incurred by posted workers where they are required to

travel to and from their regular place of work in the

Member State to whose territory they are posted to Malta,

or where they are temporarily sent by their employer from

that regular place of work to another place of work.

(2) Allowances specific to the posting shall be

considered to be part of the remuneration, unless they are paid in

reimbursement of expenditure actually incurred on account of

the posting, such as expenditure on travel, board and lodging.

Without prejudice to paragraph (j) of sub-regulation (1), the

employer shall reimburse the posted worker for such expenditure

in terms of any applicable law

Provided that, where the terms and conditions of

employment applicable to the employment relationship do not

determine whether and, if so, which elements of the allowance

specific to the posting are paid in reimbursement of expenditure

actually incurred on account of the posting or which are part of

remuneration, then the entire allowance shall be considered to be

paid in reimbursement of expenditure.

(3) In cases of initial assembly and, or first installation of

goods where such activity is an integral part of a contract for the

supply of goods and necessary for taking the goods supplied into

use and carried out by the skilled and, or specialist workers of

the supplying organisation, paragraphs (b) and (c) of sub-

regulation (1) shall not apply if the period of posting does not

exceed eight (8) days

Provided that this exclusion shall not apply to

activities in the field of building work, including but not limited

to work related to the 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.

(3A) Paragraph (c) of sub-regulation (1) shall not apply in

the cases referred to in paragraphs (a) and (b) of sub-regulation

(1) of regulation 3 when the length of the posting does not

exceed one (1) month.".

Immediately after regulation 5 of the principal regulations,

there shall be added the following new regulation

"5A. (1)

Without

prejudice

to

the

provisions

of

paragraph (c) of sub-regulation (1) of regulation 3, where the

effective duration of a posting exceeds twelve (12) months, the

foreign service providers referred to in regulation 3 shall

guarantee, on the basis of equality of treatment, workers who are

posted to Malta, in addition to the terms and conditions of

employment referred to in sub-regulation (1) of regulation 5, all

the applicable terms and conditions of employment by virtue of

the Act, or any regulations or orders issued thereunder

Provided that this shall not apply to

(a) the terms and conditions related to the

conclusion and termination of the employment contract;

and

(b)

supplementary occupational retirement pension

schemes.

(2) Where the foreign service provider submits a

motivated notification, the competent authority in Malta shall

extend the period referred to in sub-regulation (1) to eighteen

(18) months.

(3) Where the foreign service provider replaces a posted

worker by another posted worker performing the same task at the

same place, the duration of the posting shall, for the purposes of

this regulation, be the cumulative duration of the posting periods

of the individual posted workers concerned

Provided that for the purposes of this sub-regulation,

the concept of "the same task at the same place" shall be

determined taking into consideration, inter alia, the nature of the

service that shall be provided, the work that shall be performed

and the address or addresses of the workplace.".

In paragraph (f) of sub-regulation (8) of regulation 7 of the Amends

principal regulations, the words "keeping all the information up to regulation

the principal

date." shall be substituted by the words "keeping all the information up regulations.

to date:" and immediately thereafter, there shall be added the following

new proviso

"Provided that when the information on the single official

national website does not indicate which terms and conditions of

employment shall be applied, that circumstance shall be taken

into account when imposing the penalties laid down in regulation

12, to the extent necessary to ensure the proportionality

thereof.".

In regulation 12 of the principal regulations, the words

"Any person contravening the provisions" shall be substituted by the

words "Without prejudice to the proviso to sub-regulation (8) of

regulation 7, any person contravening the provisions".

€0.63