The Work-Life Balance for Parents and Carers Regulations, 2022

L.N. 201 of 2022

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

The Work-Life Balance for Parents and Carers Regulations, 2022

IN EXERCISE of the powers conferred by article 48 of the

Employment and Industrial Relations Act, the Minister responsible for

Employment and Industrial Relations, has made the following

regulations:-

(1) The title of these regulations is the Work-Life Title and

commencement.

Balance for Parents and Carers Regulations, 2022.

(2)

These regulations shall come into force on the 2 August,

2022.

(1) The scope of these regulations is to transpose the Scope and

relevant provisions of Directive (EU) 2019/1158 of the European applicability.

Parliament and of the Council of 20 June 2019 on work-life balance

for parents and carers and repealing Council Directive 2010/18/EU.

(2) These regulations transpose minimum requirements

designed to achieve equality between men and women with regard to

labour market opportunities and treatment at work, by facilitating the

reconciliation of work and family life for workers who are parents, or

carers. To that end, these regulations provide for individual rights

related to the following

(a)

paternity leave, parental leave and carers' leave;

(b) flexible working arrangements for workers who are

parents, or carers.

(3) These regulations apply to all workers, men and women,

who have an employment contract or employment relationship as

defined by law, collective agreements or practice in force, taking into

account the case-law of the relevant courts of justice of Malta as well

as the Court of Justice of the European Union.

(1)

In these regulations, unless the context otherwise Definitions.

requires

"the Act" means the Employment and Industrial Relations Act;

"carer" means any worker providing personal care or support to a

relative, or to a person who lives in the same household as the worker,

and who is in need of care or support for a serious medical reason;

"carers’ leave" means leave from work for workers in order to

provide personal care or support to a relative, or to a person who lives

in the same household as the worker, and who is in need of care or

support for a serious medical reason;

"flexible working arrangements" means the possibility for

workers to adjust their working patterns, including through the use of

remote working arrangements, flexible working schedules, or reduced

working hours;

"foster carer" means one or more persons approved by the

Fostering Board, as established by article 38 of the Minor Protection

(Alternative Care) Act, to foster a child;

"foster carers’ leave" means leave from work for workers in

order to provide care or support to a child under foster care;

"parental leave" means leave from work for parents on the

grounds of the birth or adoption of a child to take care of that child;

"paternity leave" means leave from work for fathers or, where

and insofar as recognised by national law, for equivalent second

parents, on the occasion of the birth or the adoption of a child for the

purposes of providing care;

"pro rata" shall have the same meaning attributed to it by article

2 of the Act

Provided that

(a) when the employee is in part-time employment on a

variable time schedule, the number of hours of work per week

shall be the average number of hours of work per week spread

over successive thirteen (13) week periods commencing on the

first of January of each calendar year; and

(b) when the employee has not been in part-time

employment for a period of thirteen (13) weeks, the average

number of hours of work per week shall be calculated over the

number of weeks in employment;

"relative" means a worker’s son, daughter, mother, father, spouse

or, partner in civil partnership, without prejudice to regulation 4(3) of S.L. 452.88.

the Urgent Family Leave Regulations;

"worker" shall have the same meaning attributed to it by the Act.

(2) Without prejudice to the Organisation of Working Time S.L. 452.87.

Regulations, reference to working days in these regulations shall be

understood as referring to the full-time working pattern.

(1) Fathers or, equivalent second parents, have the right Paternity leave.

to paternity leave of ten (10) working days, to be taken on the occasion

of the birth or the adoption of the worker’s child, immediately after the

birth or the adoption of the child, without loss of wages.

(2) The right to paternity leave shall not be subject to a period

of work qualification or to a length of service qualification.

(3) The right to paternity leave shall be granted irrespective of

the worker’s marital or family status.

(1) Every worker is entitled to parental leave per child, Parental Leave.

whether full-time, part-time, and whether employed on an indefinite or

fixed-term contract

Provided that in all cases, the worker has been in the

employment with the same employer for a continuous period of at least

twelve (12) months

Provided further that for the purpose of calculating the

twelve (12) month qualifying period, in case of workers with a fixed

contract term

(a) when there are successive fixed term contracts with

the same employer, the sum of these contracts shall be taken into

account, and

(b) when there is a fixed term contract which is renewed

within a six (6) month period from its termination, the said

period between the two contracts shall also be taken into

account

Provided further that unless the employer and the employee

agree otherwise, the employer shall not, during the period of parental

leave, have the right to suspend the parental leave and to request the

employee to return to work before the agreed date of resumption of

duties, and the employee shall have no right to return to work prior to

the agreed date of resumption of duties.

(2) The minimum periods of entitlement mentioned in the

preceding sub-regulation shall be applicable unless a shorter period of

entitlement has been established in the contract of service of the

worker or in a collective agreement applicable to the worker.

(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 worker.

(4) Workers have the right to request that they take parental

leave in flexible ways. The employer shall consider and respond to

such requests, taking into account the needs of both the employer and

the worker. The employer shall provide reasons for any refusal to

accede to such a request in writing within two (2) weeks from the

request

Provided that, without prejudice to any collective

agreement applicable to the worker, the employer together with the

worker may decide whether to grant the parental leave on a full-time or

a part-time basis, or in a piecemeal way.

(5) A worker applying for parental leave from the employer

shall be bound to give a minimum of two (2) weeks notice in writing,

specifying the beginning and the end of the parental leave, prior to

taking such leave.

(6) Without prejudice to the Act, the Minister may issue

regulations to provide for conditions of access to and detailed

arrangements for the application of parental leave adapted to the needs

of adoptive parents, parents with a disability and parents with children

with a disability, or a long-term illness

Provided that in the case of parents with a disability or

parents with children with a disability, without prejudice to the

applicability of the Act, any arrangement concerning parental leave

which goes counter to the provisions of the Equal Opportunities

(Persons with Disability) Act shall be considered null and void.

(7) Upon the granting of parental leave, during the period of

parental leave, the employee shall have the right to apply for

promotion opportunities arising within the place of work, and in order

to facilitate the return to work following parental leave, both the

employer and employee concerned are obliged to maintain contact

during the period of leave and may make arrangements for any

appropriate reintegration measures, which are to be decided between

the parties themselves

(1) It shall be the individual right of each parent to be Paid parental

granted paid parental leave on the grounds of birth, adoption, child leave

granted for

fostering in the case of foster parents, or legal custody of a child, to birth,

fostering or

enable them to take care of that child for a period of four (4) months legal custody of

a child.

until the child has attained the age of eight (8) years

Provided that parental leave shall be paid for a period of

two (2) months, at the same rate established for the sickness benefit

entitlement under the Social Security Act, and parental leave shall be Cap 318.

paid as follows

(a) fifty per centum (50%) of entitlement will be paid,

where the child or children for whose care parental leave was

granted has or have not attained four (4) years of age;

(b) twenty five per centum (25%) of entitlement will be

paid, where the child or children for whose care parental leave

was granted has or have attained the age of four (4) years but has

or have not yet attained the age of six (6) years; and

(c) twenty five per centum (25%) of entitlement will be

paid, where the child or children for whose care parental leave

was granted has or have attained the age of six (6) years but has

or have not yet attained the age of eight (8) years

Provided further that in the case of parental leave granted to

foster parents, the rate of payment shall be the same as that established

for parents not being foster parents as stipulated in the first proviso, on

condition that payment of allowance will be given as per parent

applying for parental leave and not for each child fostered

Provided further that two (2) months of parental leave

cannot be transferred

Provided further that parental leave shall be availed of in

established periods of at least two (2) weeks each, without prejudice to

any agreement reached by the employer and employee or collective

agreement.

(2) In the event that the parental leave was not availed of or

there is still an existing balance of parental leave, a worker shall

remain entitled to such leave even if there is a change in the employer

or in the employment of the worker, as long as, the worker qualifies

therefor in accordance with sub-regulation (1).

(3)

Every employer shall be bound to keep a record of the

parental leave for every worker, and shall, on the demand of the

worker which may be made even after termination of employment,

deliver to the worker a written statement of the leave to the worker,

within two (2) weeks of a written request.

(1) A worker applying for parental leave from the

employer shall be bound to give a minimum of two (2) weeks notice in

writing, specifying the beginning and the end of the parental leave,

prior to taking such leave.

(2) Paternal and parental leave, as regulated by regulations

4(1) and 5(1), shall commence from the date when the worker provides

the employer with

(a)

the proof of placement in the case of foster carers;

(b)

In the case of adoptive parents

(i) evidence that the legal proceedings necessary

for the adoption to be completed in accordance with the law

have been initiated, and

(ii) a written certificate from the competent

authority, designated for this purpose by the Minister

responsible for social policy, certifying that a positive

home study report has been completed; or

(iii) certified evidence that the couple have legal

custody of the child.

(c) In the case of parents taking leave because of the

legal custody of a child, parental leave shall commence from the

date when the worker provides certified evidence that the couple

have the legal custody of the child; and

(d) In cases other than those mentioned in paragraphs (a),

(b) and (c), parental leave shall commence when the worker

provides the employer with a birth certificate.

(1) An employer who receives notice for parental leave

as prescribed in regulation 7(1), may temporarily postpone the

granting of parental leave for justifiable reasons related to the

operation of the place of work.

(2) For the purposes of this regulation, the term ''justifiable

reasons'' includes

(a)

where the work carried out at the place of business is

of a seasonal nature;

(b) where a replacement cannot be found within the

notice period given by the worker;

(c) where the specific employment of the worker who

requests parental leave is of strategic importance to the

undertaking or place of business;

(d) where the place of business is a small enterprise

employing not more than ten (10) people, provided that the

employer consults with the worker in order to establish

alternative dates when such leave may be availed of, in such a

way to avoid indefinite postponement of the requested parental

leave;

(e) where a significant proportion of the workforce

applies for parental leave at the same time

Provided that an employer who decides to postpone the

granting of parental leave shall inform the worker in writing of the

reasons for the postponement within two (2) weeks of receipt of the

worker's notice, for cases falling under this sub-regulation

Provided further that the postponement by the employer of

the granting of parental leave is without prejudice to the worker’s right

to take the parental leave entitlement before the child reaches eight (8)

years of age at the latest and if such postponement may result in the

loss of the parental leave entitlement or part thereof, it shall be the

duty of the employer to immediately grant parental leave for a period

equivalent to the leave still unavailed of, or for such other lesser period

as may be requested by the worker

Provided further that when considering requests for

parental leave, employers shall, prior to any postponement, offer, to

the extent possible, flexible ways of taking parental leave.

Each worker has the right to carers' leave of five (5) Carers’ leave.

working days per year, which shall be unpaid

Provided that the worker shall present medical proof that

the relative, or person who lives in the same household as the worker

and in relation to whom carers’ leave is requested, is suffering from an

illness and is in need of care and support.

(1) Workers with children up to the age of eight (8) years, Flexible

and carers, have the right to request flexible working arrangements for working

arrangements.

caring purposes

Provided that flexible working arrangements may be

limited in duration

Provided further that when flexible working arrangements

are limited in duration, the worker shall have the right to request to

return to the original working pattern before the end of the agreed

period where justified on the basis of a change in circumstances. The

employer shall consider and respond to a request for an early return to

the original working pattern, taking into account the needs of both the

employer and the worker.

(2) In these regulations flexible working arrangements may

include but are not limited to, remote working, work on reduced hours,

and flexitime.

(3) Employers shall consider and respond to requests for

flexible working arrangements within two (2) weeks, providing

reasons for any refusal of such requests or for any postponement of

such arrangements.

(1) Rights that have been acquired or that are in the

process of being acquired by workers on the date when leave granted

under these regulations commences, shall be maintained until the end

of such leave or time off from work. At the end of such leave or time

off from work, those rights, including any changes arising from the

law, collective agreements or practice, shall apply.

(2) At the end of paternal, parental, and carers’ leave, workers

are entitled to return to their jobs or to equivalent posts on terms and

conditions which are no less favourable to them, and to benefit from

any improvement in working conditions to which they would have

been entitled had they not taken the leave.

Discrimination against workers on the ground that they

have availed themselves of leave, being paternity, parental, carers’

leave, time off from work on grounds of force majeure or any flexible

arrangement, shall be prohibited.

Without prejudice to Article 28 of the Act, no worker, or

any worker being the employees’ representative, lodging a complaint

with the employer or initiating legal proceedings against the employer

for the purpose of enforcing compliance with the requirements laid

down in these regulations, shall suffer from any adverse treatment or

consequences.

(1) Any dismissal, or preparations for the dismissal of Protection from

workers on the grounds that they have applied for, or have taken, dismissal

burden of proof.

paternal, parental, carers’ leave, or time off from work on grounds of

force majeure, or have exercised the right to request flexible working

arrangements, shall be unlawful

Provided that in the case of parental leave notice of

termination of employment, as provided for in the Act may be given Cap. 452.

during the period of parental leave

Provided further that, a notice of termination given by

either the employer or the employee during parental leave, shall result

in the automatic suspension of the parental leave from the date such

notice is given.

(2) Workers who consider that they have been dismissed on the

grounds that they have applied for, or have taken leave provided for in

sub-regulation (1), or availed themselves of a flexible working

arrangement, may request the employer to provide duly substantiated

reasons for their dismissal. Such reasons shall be provided by the

employer in writing, within fifteen (15) days from a request therefor.

(3) When a worker establishes, before a competent authority,

facts capable of giving rise to a presumption that he has been dismissed

on the grounds of having applied for, or availed himself of any leave

mentioned in sub-regulation (1), or of having requested or availed

himself of a flexible working arrangement, it shall be the responsibility

of the employer to prove that the dismissal was based on other grounds.

Should a dispute arise between an employer and an Dispute

employee regarding the entitlements covered by these regulations or resolution.

any related matter, then either the employer or the employee may refer

the matter to the Director General of Employment and Industrial

Relations who shall mediate between the parties.

(1) The Parental Leave Entitlement Regulations are Repeal and

saving.

hereby repealed.

(2) The revocation of the regulations referred to in sub-

regulation (1) shall be without prejudice to the validity of anything

done or omitted to be done thereunder.

(3) These regulations supersede any less favourable relevant

provisions in any regulations, orders or other subsidiary legislation

made under or kept in force under the Act and in case of any Cap. 452.

inconsistency between such legislation and these regulations, the latter

shall prevail.

Any person who contravenes or fails to comply with any

Offences.

provision of these regulations shall be guilty of an offence against the

Act and shall, on conviction, be liable to a fine (multa) of not more

than two thousand euro (€2000 ).

€0.90