Employment Agencies Regulations, 2023

L.N. 270 of 2023

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Employment Agencies Regulations, 2023

IN EXERCISE of the powers conferred by article 48(2) 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 Employment Citation and

commencement.

Agencies Regulations, 2023.

(2)

The provisions of these regulations shall come into force on

1 st April 2024

Provided that first time applicants are being granted a

transitional period of two (2) months from the coming into force of

these regulations in order to fulfil their obligations in accordance with

these regulations.

(regulation 3)

The following services shall be exempt from the application of

these regulations and shall not require a licence when they are

provided through an outsourcing agency

(a) professional services where the person providing

those services is in possession of a warrant, or its equivalent, to

exercise that profession, including but not limited to the

profession of advocate, auditor, or certified public accountant;

(b) technical services where the person providing those

services makes available their technical knowledge, experience,

skill, know-how or processes and provides services in relation

thereto, such as those performed in relation to the installation,

maintenance and repair of equipment and machinery; and

(c)

surveying services in relation to machinery and

vessels.

This exemption shall also apply in the event that the said services

are provided by employees at the premises of the user undertaking

where they are outsourced.

In the event of reasonable doubt as to whether the operation of a

particular service would be subject to a licence in accordance with

these regulations, the matter shall be conclusively determined by the

Director.

In these regulations, unless the context otherwise requires

Interpretation.

"Act" means the Employment and Industrial Relations Act; Cap. 452.

"Administration Board" means the Employment Agencies

Administration Board established by regulation 19;

"advertisement" includes any advert in any publication or

broadcast on any radio or television station or cable network;

"Agencies Guarantee Fund" means the Employment

Agencies Guarantee Fund established by article 21A of the Act;

"Appeals Board" means the Employment Agencies Appeals

Board established by article 21B of the Act;

"applicant for employment" includes any person who seeks

to avail themselves of opportunities for employment which are

offered by an employment agency or employment business;

"competent person" means a fit and proper person approved

by the Director to manage an employment agency or

employment business and who meets the criteria established in

these regulations, including but not limited to those established

in regulation 8;

"conditions of employment" shall have the same meaning

as defined in the Act;

"Director" means the Director General responsible for

employment and industrial relations, and includes any officer

within the department responsible for employment and

industrial relations who is authorised by the Director to act on his

behalf;

"editor" shall have the same meaning assigned to it by the

Media and Defamation Act;

"employer" includes a partnership, company, association or

other body of persons, whether vested with legal personality or

otherwise;

"employment" shall have the same meaning assigned to it

in the Act;

"employment agency" or "employment business" means

any natural or legal person carrying out any relevant activity in

Malta

(a) for the recruitment of persons for employment

in Malta or outside Malta;

(b)

as a temporary work agency; or

(c)

as an outsourcing agency,

and in the case of a legal person whose objects in its

memorandum of association include the carrying out of the said

relevant activities as well as the activities ancillary or incidental

thereto, but do not include objects which are not compatible with the

services of an employment agency or employment business;

"employment services" include the keeping of any register

of applicants for employment or the referral of applicants for

employment, the placing in employment of applicants for

employment; the placing of advertisements for the filling of

employment vacancies, the interviewing and selection of

applicants for employment and the offering of employment

contracts for, or on behalf of any employer to applicants for

employment, the assignment of employees to user undertakings,

whether such assignment is made by the employment agency or

employment business through the activity of a temporary work

agency or that of an outsourcing agency;

"licensee" means the holder of a licence to operate an

employment agency or an employment business;

"Minister" shall have the same meaning assigned to it in the

Act;

"outsourcing agency" means a natural or legal person, and

in the case of a legal person whose objects in its memorandum of

association include the carrying out of the relevant activities as

well as all activities ancillary or incidental thereto, but do not

include such objects which are not compatible with the services

of an outsourcing agency, who enters into contracts of

employment or employment relationships with employees and

who assigns, whether on a regular or on an irregular basis, the

employees to user undertakings to work there temporarily, by

being physically present at the premises of the user undertaking

or working remotely, under the supervision, direction and control

of the outsourcing agency, whether or not such activity is the

main or ancillary activity of the outsourcing agency;

"temporary agency worker" means a worker who has

entered into a contract of employment or an employment

relationship with a temporary work agency and who is

assigned, whether on a regular or on an irregular basis, to a

user undertaking to work temporarily under its supervision,

direction and control;

"temporary work agency" means a natural or legal person,

and in the case of a legal person whose objects in its

memorandum of association include the carrying out of the

relevant activities as well as all the activities ancillary or

incidental thereto, but do not include such objects which are not

compatible with the services of a temporary work agency, which

enters into contracts of employment or employment relationships

with temporary agency workers and who assigns, whether on a

regular or on an irregular basis, the temporary agency workers to

user undertakings to work there temporarily under their

supervision, direction and control, whether or not such activity is

the main or ancillary activity of the temporary work agency;

"user undertaking" includes any employer or any person

other than an applicant for employment who makes use of any

services provided by an employment agency or employment

business.

(regulation 5(3))

The following licence fees shall be applicable

(a)

for recruitment services

(i) a licence fee of three thousand euro (€3,000),

shall be paid to the Director upon the submission of an

application by a first-time applicant;

(ii) a fee of one thousand five hundred euro

(€1,500) shall be paid to the Director upon the submission

of every application for the renewal of a licence;

(b)

for temporary work agencies or outsourcing agencies

(i)

a licence fee of three thousand euro (€3,000)

shall be paid to the Director upon the submission of an

application by a first-time applicant;

(ii) a fee of one thousand five hundred euro

(€1,500) shall be paid to the Director upon the submission

of every application for the renewal of a licence;

Such fees shall not be refunded to the applicant if the application

or any renewal is refused.

€2.70

(1) No person shall operate an employment agency or an

employment business unless

(a) such person is the holder of a valid licence issued by

the Director authorising the person to operate such an

employment agency or employment business in premises

specified in the licence and in relation to either the recruitment

of persons for employment in Malta or outside Malta, or

temporary work agency, or outsourcing agency; or

(b) such person is lawfully established to conduct

business as an employment agency in a Member State of the

European Union, and has informed the Director that they are

providing the services of an employment agency in Malta

Provided that for the purposes of these regulations,

"lawfully established" shall be read and construed in accordance with

the Services (Internal Market) Act

Provided further that the Director may impose any

necessary requirements on persons referred to in paragraph (b) in

accordance with the Services (Internal Market) Act and it shall be an

obligation on persons referred to in paragraph (b) to adhere to the said

requirements

Provided further that a licence may only be granted for one

(1) activity, specifically, either-

(a) for the recruitment of persons for employment in or

outside Malta, or

(b) to render any one (1) or both of the following

activities

(i)

the activities of a temporary work agency, and,

or,

(ii)

the activities of an outsourcing agency,

as the applicant shall determine

Provided further that a separate licence for each such

activity shall be required

Provided further that natural persons shall qualify to be

granted a licence to operate any employment agency or employment

business if they are twenty-five (25) years of age or more.

(2) The procedure which shall be followed for a licence to be

issued under these regulations shall be as follows

(a) an applicant for a licence in accordance with sub-

regulation (l)(a) shall not less than twenty-one (21) days before

submitting the application

(i) display notice of the application in a place

where it can be conveniently read by the public on or near

the premises from which the employment agency or

employment business is or is to be carried out and adopt

such measures as the applicant can reasonably take to keep

that notice so displayed for a period of twenty-one (21)

days; and

(ii) advertise notice of the application in two (2)

daily newspapers; and

(b) a notice made under this regulation shall indicate the

name and address of the applicant, and in cases where the

applicant is a legal person, the applicant’s registration number,

its registered office, and the address of the premises from which

the employment agency or employment business is located or is

to be carried out, which premises shall be suitable in terms of the

applicable law.

(3) In the following cases a licence shall not be required and

the provisions of sub-regulation (1) shall not apply to

(a) any employer who carries out any recruitment related

activity connected to any employment in such employer’s own

undertaking or in any undertaking in which such employer

participates in the day to day management as an active partner or

for any company in which such employer’s company has an

interest as majority shareholder, provided that if any

advertisement is placed for the filling of any vacancy, the

identity of the employer shall be clearly specified in the

advertisement;

(b) any recruitment related activity provided by an

employment agency on behalf of any employer whose identity is

clearly specified in an advertisement inviting applicants for

employment;

(c) any outsourcing agencies in so far as they carry on

any of the services listed in the First Schedule, in respect of such

services; and

(d) Jobsplus while carrying out the functions of an

employment agency, whether through the agency of other

persons, or as agent or otherwise on behalf of other persons in

accordance with the Employment and Training Services Act.

(4) The employment agency or employment business shall not

operate under any agreement or any other arrangement with any user

undertaking which provides for exclusivity in the provision of any

employment services to such user undertaking, and any agreement or

alternative arrangement providing for a form of exclusivity shall be

null and void.

(5) An employment agency or employment business providing

services of recruitment of persons for employment shall not register

any employees under its own name, except when such employees are

required to perform duties specifically and exclusively for such

employment agency or employment business. To ensure compliance

with this provision, the employment agency or employment business

shall provide the Director with a list of persons employed by it, which

list shall be officially obtained from Jobsplus, and this upon the

submission of the original application for a licence under these

regulations, upon every submission of an application for a renewal

thereof, and whenever requested by the Director for the purpose of this

sub-regulation.

(6) No user undertaking shall seek employment services from

any provider unless such provider is a licensed employment agency or

employment business in accordance with these regulations. Any

person who, during any ongoing investigation or process undertaken in

virtue of these regulations, is found to be in breach or failing to

comply with the provisions of this sub-regulation shall be guilty of an

offence under these regulations.

(1) Any person who, prior to the entry into force of these

regulations, was engaged in any activity or operation relating to

employment agencies or employment business, providing recruitment

of persons, and is in possession of a valid licence to do so under the

Employment and Training Services Act or regulations issued

thereunder, may continue to perform such activities as authorised

under their existing licence conditions until such existing licence

expires

Provided that any such person shall apply for a new licence

in accordance with regulation 3(1) with the Director at least two (2)

months before the expiration of any existing licence or, if the existing

licence expires earlier than two (2) months from the day of the coming

into force of these regulations, not later than one (1) month from the

day of the coming into force of these regulations. Any existing licence

expiring within the said one (1) month period shall be deemed to have

been extended accordingly.

(2) In the period between the date when these regulations come

into force and the date when the new licences come into effect, the

authorised provider shall follow all directions and conditions that the

Director may establish

Provided that when such conditions are inconsistent with

the existing licence, the new conditions shall prevail.

(3) Any person applying for a licence as a first time applicant

shall submit an application as from the 1st of January 2024.

(4) Identity Malta Agency shall not accept any application for a

residence permit in accordance with the Single Application Procedure S.L. 217.17.

for a Single Permit as regards Residence and Work and a Common Set

of Rights for those Third-Country Workers Legally Residing in Malta

Regulations from any person who in accordance with these regulations

is bound to have a valid licence, after the coming into force of these

regulations, unless such person is in possession of a valid licence.

(1) Applications for licences to operate an employment Application for

agency or employment business shall be submitted to the Director in licence

renewal.

such form as the Director may require. Each application shall include

the following particulars

(a) in the case of natural persons, the name, address and a

valid identification document number, and in the case of a legal

person, the name of that legal person, its registered address and

the registration number;

(b) the Value Added Tax registration number, Income

Tax registration number of the applicant and in the case of a legal

person a good standing certificate in respect of the applicant

issued by the Malta Business Registry, not earlier than one (1)

month from the date of application;

(c) address of the place where the activity is proposed to

be carried out, which place shall be covered by a permit showing

that the premises can be used for commercial purposes in

Category D – Commercial Uses, Class 4A, paragraph (c) in

accordance with the Development Planning (Use Classes) Order S.L. 552.15.

or by any other relevant permit as long as the Director is satisfied

that the premises are suitable for the purposes they are intended

for. A copy of the relevant permit shall accompany the

application;

(d) detailed information about the activities to be carried

out. Such information shall include

(i) a description of the services proposed to be

provided;

(ii) the method of financing of the employment

agency or of the employment business proposed to be

offered;

(iii) a declaration by the applicant to the effect that a

notice of intention has been displayed by the applicant and

that advertisements have been published in at least two (2)

daily newspapers as required by the provisions of

regulation 3(2)(ii). A copy of the notice and of the

newspapers showing the advertisements shall accompany

the application; and

(iv) the name, address and the registration number

of a valid identification document and the curriculum vitae

indicating the date of birth, educational and professional

qualifications and professional experience of the competent

person.

(2) Applications, whether submitted by a first time applicant or

a licensee for renewal of a licence, shall also be accompanied by a

recent tax compliance certificate or equivalent, which shall not be

dated earlier than one (1) month prior to the date of application, issued

by the Commissioner for Tax and Customs indicating the registration

details and tax compliance status of the competent person, the

applicant and of each of the applicant’s directors and shareholders

where the applicant is a legal person.

(3) An application for the granting or renewal of a licence shall

be accompanied by the fees listed in the Second Schedule.

(4) Every application submitted to the Director in accordance

with regulation 3(1)(b) shall include

(a) the name of the employment agency and its registered

address, which shall be in a Member State;

(b) the name, the address and the registration number of a

valid identification document of the competent person authorised

by the employment agency or employment business to carry out

the functions of the employment agency or employment business

in Malta and proof that the person is legally established in

another Member State; and

(c) the address of the place in Malta where the activity is

proposed to be carried out.

(5) Upon applying for the renewal of a licence to the Director,

the person seeking renewal shall provide a signed declaration by the

competent person stating that such person is still carrying out the

duties as the competent person for that employment business or

employment agency at the time of the said application.

(6) An application for a licence shall be accompanied by

evidence that the applicant shall be able to provide a bank guarantee in

favour of the Administration Board in accordance with regulation

20(1) as well as any other terms that the Administration Board may

require.

(7) An application for a licence by a first time applicant or by a

licensee for a renewed licence shall contain or be accompanied by such

other information and particulars as the Director may require,

including but not limited to that relating to the applicant or the

licensee, the competent person, and where the applicant or the licensee

is a legal person, to the applicant’s or the licensee’s directors,

shareholders and any person having a beneficial interest in the

applicant or the licensee, and shall be verified in the manner and to the

extent required by the Director.

(8) The Director shall, at any time throughout the application

process for a licence or its renewal, and throughout the validity of a

licence, request the applicant or the licensee, as the case may be, to

provide such information and particulars as the Director may require in

order to enable him to exercise his functions under these regulations,

and such information may include but shall not be limited to

comprehensive and verifiable payroll documentation, including but not

limited to salary records, and any other pertinent financial records

pertaining to employees of the applicant or the licensee, as the case

may be.

(9) The Director may, from time to time, issue procedural

guidelines to specify the operational aspects and interpretations under

these regulations.

An application for a licence under these regulations shall Notice of

not be considered by the Director unless it is accompanied by a intention.

certificate, signed by or on behalf of the applicant, stating that the

applicant has complied with the provisions of regulation 3(2) and a

copy of the newspapers containing notice of the application in

accordance with these regulations.

(1) A licence to operate an employment agency or an

employment business in accordance with regulation 3(1)(a) shall be

issued by the Director for a period of one (1) year beginning from the

date specified in the licence for its commencement. Such licence shall

be renewed for further periods each of one (1) year, or for a longer

period, not exceeding two (2) years, as the Director may specify in the

case of first time renewals, taking into account the operational system

of the department of employment and industrial relations, subject to

the submission of a request for such renewal and the continuous

fulfilment of the requirements laid down in these regulations

Provided that when a request for renewal has been received

prior to the expiry of a valid licence, the licence shall remain valid

until a decision is taken by the Director with regard to the request for

renewal of the licence.

(2) Licences shall be issued by the Director subject to the

conditions laid down in the Act or these regulations as may be in force

from time to time and subject to such conditions as the Director may

establish down in the licence to ensure the proper management of the

employment agency or employment business or for the protection of

the user undertakings, and in particular of applicants for employment.

Such conditions may be varied by the Director.

(3) The holder of a licence granted by virtue of these

regulations or the person referred to in regulation 3(1)(b) shall keep

displayed on the premises to which the licence relates or from which

the business of an employment agency or employment business is

carried out, as the case may be, in such a position that it can be readily

seen by persons entering those premises and displayed prominently on

any website that the holder of the licence may use for the purpose of

the employment agency or employment business to which the licence

relates

(a) the licence granted by virtue of these regulations, if

applicable; and

(b) a copy of these regulations which shall be available

for inspection by any interested person

Provided that failure to comply with the provisions of this

sub-regulation shall constitute an offence in terms of these regulations.

(4) It shall be a condition of any licence that a competent

person shall be available at all times to manage the employment

agency or employment business. For this purpose, the competent

person shall be employed by the employment agency or employment

business on a full-time basis and shall, throughout such employment,

be allowed to occupy such position with one (1) such employment

agency or employment business only

Provided that the employment agency or employment

business may appoint a designated employee to assist the competent

person to fulfil their function effectively and, whenever necessary, to

temporarily replace the competent person when absent. In any case,

the employment agency or employment business shall obtain the prior

approval of the Director and his eligibility shall be subject to the same

criteria established for the competent person. Any designated

employee shall work under the direction of the competent person.

(5) (a) When the existing competent person is no longer

employed with the employment agency or employment business, and

the new competent person is pending approval by the Director, the

employment agency or employment business shall, as soon as

practicable on becoming aware of such fact, notify the Director in

writing thereof and provide the Director with the details of the

employee who, shall be assuming temporarily the role of competent

person and to whom any requests or queries are to be addressed, which

employee may be a previously appointed designated employee;

(b) the Director shall also be notified whether the

termination of employment of the competent person was in any

way related to the implementation of the competent person’s

obligations in accordance with these regulations and whether this

had any implication that should be brought to the attention of the

Director. The notification referred to in sub-regulation (5)(a)

shall be made within fifteen (15) days from the date of

termination of the competent person’s employment.

(6) Failure to comply with the provisions of this regulation

shall constitute an offence in terms of these regulations.

(7) The person referred to in regulation 3(1)(b) shall ensure

that a competent person is available at all times to manage the

employment agency or employment business. The provisions of sub-

regulations (4) to (6) shall apply mutatis mutandis to the competent

person referred to in this sub-regulation.

(8) Where it is intended to effect any change in the place where

the activity of the employment agency or employment business is

carried out, or in the class of activity to be carried out, or any

substantial change in the procedures or any transfer of business is

intended, the licensee or the person referred to in regulation 3(1)(b)

shall notify the Director in writing of the proposed change not later

than one (1) month before the proposed change. Failure to notify the

Director shall constitute an offence in terms of these regulations

Provided that nothing in this sub-regulation shall be

considered as an authorisation to the holder of a licence to operate any

business in accordance with regulation 3(1)(a) other than in

accordance with the provisions of the said licence

Provided further that every licence issued in accordance

with these regulations shall be endorsed with notice of the effect of

this regulation.

(9) A transfer of a licence to another person shall be deemed to

be complete once it is approved in writing by the Director. When

applying for a transfer of a licence, the licensee shall provide the

Director with the name, address and the registration number of a valid

identification document of the person to whom it is intended to

transfer the licence and all the particulars and documents specified in

regulation 5 in respect of the person to whom the licence is to be

transferred.

(1) A competent person nominated in accordance with

these regulations shall be

(a)

a Maltese citizen;

(b) a citizen of another Member State of the European

Union entitled to equal treatment to Maltese citizens;

(c) a citizen of any other country who is entitled to equal

treatment to Maltese citizens in matters related to employment

by virtue of the application to that country, of European Union

legislation and treaty provisions dealing with the free movement

of workers; or

(d) any other person who is entitled to equal treatment to

Maltese citizens in terms of the law or by virtue of European

Union legislation and treaty provisions, on account of their

family relationship with persons referred to in paragraphs (a), (b)

or (c);

and in any case, be a resident in Malta.

(2) The Director shall seek the advice of the Identity Malta

Agency or Community Malta Agency, including any one of their

respective officers, with regard to the interpretation of sub-regulation

(1) and in relation to the verification of compliance of the competent

persons in accordance with the criteria laid down in these regulations.

(3) In addition to the provisions of sub-regulation (1), a

competent person shall

(a) (i) have not less than six (6) years experience in

any activity which includes the management of human resources;

or

(ii) have not less than three (3) years experience in

any activity which includes the management of human

resources and be in possession of a university degree in a

field which, in the opinion of the Director, is relevant to the

management of an employment agency or employment

business; and

(b) provide a reference letter from their previous

employer or from a warranted professional, which letter shall

include an attestation of good moral character and, in the case of

the letter being provided by their previous employer, of the

relevant experience in the management of human resources.

(4) The competent person shall be responsible for the proper

management of the employment agency or employment business.

(5) It shall be the responsibility of the applicant to ensure that

the Director is notified in writing of the name, address, the registration

number of a valid identification document, and that the Director is

provided with the curriculum vitae, qualifications and testimonials of

experience of the person nominated by the applicant as a competent

person to manage the employment agency or employment business and

of any designated employee appointed by the applicant to assist the

competent person, together with the submission of the application.

(1) The Director may refuse an application submitted by Refusal or

a first time applicant or a licensee for the renewal of a licence, or may revocation

varying of

revoke a licence or vary any of the conditions of a licence, as the case licence.

may be, on any of the following grounds

(a) that the applicant has failed to comply with any of the

provisions of these regulations, the Act or of any other

regulations made thereunder, or has failed to comply with any

conditions laid down in the licence, and the applicant has failed

to remedy such non-conformity within thirty (30) days from the

date of a communication of the Director of such ground,

provided that such non-comformity may be remedied. If the

applicant fails to remedy such non-conformity within the said

period or if the non-conformity may not be remedied, then in

such cases there shall be a ground for refusal or revocation of a

licence;

(b) that in the case where the applicant is a legal person,

the actual activities of the applicant are not compatible with its

objects in accordance with the definition of employment agency

or employment business in regulation 2 and the applicant has

failed to remedy such default within thirty (30) days from the

date of a communication of the Director of such ground;

(c) that according to the determination of a Working

Committee, the competent person is not a fit and proper person

to provide the services concerned, based on a full vetting process

undertaken by the Malta Police Force, or is no longer employed

by the licensee in accordance with these regulations;

(d) that according to the determination of a Working

Committee, the applicant, where this is a natural person, or any

of the directors of the applicant, where this is a legal person, are

not individuals who are fit and proper persons, based on a full

vetting process undertaken by the Malta Police Force;

(e) that, according to the determination of a Working

Committee, in the case of a legal person, any person who directly

or indirectly owns or controls twenty-five percent (25%) or more

of the capital or voting rights in the applicant, or otherwise

exercises control over the management of the applicant, is not a

fit and proper person, based on a full vetting process undertaken

by the Malta Police Force;

(f) without prejudice to paragraphs (c) to (e), that any of

the persons mentioned in the said paragraphs has, as from the

date of coming into force of these regulations, been convicted by

a Court in respect of the breach of

(i) any law relating to immigration, including but

not limited to human trafficking; or

(ii) the Act or any regulations issued thereunder,

unless the relevant person, having been so convicted for the

first time since the date of the coming into force of these

regulations, has remedied the breach within thirty (30) days

from the date of conviction by the Court, provided such

breach may be remedied; if the relevant person fails to

remedy such breach within the said period, or if the breach

may not be remedied, then in such cases there shall be a

ground for refusal or revocation of a licence; in addition, if

the relevant person has been convicted in respect of the

breach of any law relating to employment for a second

time, irrespective of whether the prior breaches have been

remedied or not, or if there are pending cases, then in such

case this shall also be a ground for refusal or revocation of

a licence;

(g) that the applicant does not have a clean record of

compliance with tax and social security obligations, including

but not limited to having any unpaid taxes or outstanding tax

debts and, or unpaid contributions to Malta’s social security

system and has failed to remedy such default within thirty (30)

days from the date of a communication of the Director of such

ground;

(h) that in the case where the applicant is a legal person,

the name of the applicant is not consistent with its activities as

outlined in paragraph (b) and the applicant has failed to remedy

such default within thirty (30) days from the date of a

communication of the Director of such ground;

(i) that the Director has acquired knowledge and

evidence indicating that the applicant or licensee, as the case

may be, has knowingly entered into arrangements with any third

party who has charged any fees or demanded any payment from

applicants in exchange for employment services;

(j) that the licensee or the competent person nominated

by the licensee to manage the employment agency or

employment business or any other person responsible for the

running of the employment agency or employment business has

charged any fees or demanded any payment from applicants for

any employment services;

(k) that the applicant for a licence or the licensee, or

where the applicant or licensee is a legal person, any director of

the applicant or licensee, or every person who directly or

indirectly owns or controls twenty-five (25%) or more of the

capital or voting rights in the applicant for a licence or the

licensee, or otherwise exercises control over the management

thereof, or any competent person nominated by the applicant for

the licence or by the licensee has been convicted by any Court of

any offence under these regulations or in relation to any of the

criminal offences mentioned in sub-regulation (2)(d) or (e);

(l) that the licensee has failed to keep the Director

informed of any change in the nature of the activities carried out

or the procedures adopted or has failed to provide the Director as

required by these regulations with the particulars of the person

nominated by him as a competent person to manage the

employment agency or employment business or to act as a

designated employee to assist the competent person;

(m) that the applicant has provided information or made

declarations or statements to the Director in relation to the

application for the issuing of a licence or its renewal, which were

known by the applicant to be inaccurate, false or misleading in

any material respect, or information provided recklessly or he

made a declaration or statement which is inaccurate, false or

misleading in any material respect;

(n) that the employment agency or employment business

has been or is being improperly conducted and the licensee has

failed to remedy such default within thirty (30) days from the

date of a communication of the Director of such ground;

(o) that the applicant has failed to provide, or maintain

throughout the applicability of any licence issued, a bank

guarantee on the terms provided in accordance with regulation

20(1) and has failed to remedy such default within thirty (30)

days from the date of a communication by the Director on such

ground;

(p) that a first time applicant or a licensee applying for a

renewed licence has failed to provide any information requested

by the Director within the time stipulated by the Director or has

withdrawn or abandoned the application at any time during a

period of twelve (12) months commencing to run from the date

of submission of the application; or

(q) that the refusal or revocation or variation of the

licence is considered by the Director as desirable for the

protection of the general public or the reputation of Malta.

(2) For the purpose of this regulation, the term "full vetting

process" that shall be undertaken by the Malta Police shall include but

not be limited to a thorough investigation and evaluation of a relevant

person’s background including whether such person

(a) has been indicted of any offence before the Criminal

Court and such person has been found guilty;

(b) is listed with the International Criminal Police

Organization (Interpol) or Europol;

(c) is an actual or potential threat to national security,

public policy or public health of Malta;

(d) has at any time, been charged with and found guilty

of crimes related to

(i)

terrorism;

(ii)

fraud and money laundering;

(iii) funding of terrorism;

(iv) crimes against humanity;

(v)

war crimes;

(vi) crimes that infringe upon such Protection of

Human Rights and Fundamental Freedoms as established

by the European Convention on Human Rights; and

(vii) exploitation of workers;

(e) has at any time been charged and found guilty of any

of the following criminal offences

(i)

paedophilia;

(ii)

defilement of minors;

(iii) rape;

(iv) violent indecent assault;

(v)

inducing persons under age to prostitution;

(vi) abduction;

(vii) living off the earnings of the prostitution of

others; and

(viii) sexual abuse;

(f) has at any time been found guilty of, or has criminal

charges brought against such person for any criminal offence

punishable with more than two (2) years imprisonment other

than an involuntary offence;

(g) is or is likely to be involved in any activity which

may cause disrepute to Malta;

(h) has been denied a visa to a country with whom Malta

has visa-free travel arrangements and has not subsequently

obtained a visa from that same country;

(i) is named or listed in international sanctions applying

restrictive measures on such person that the Director is bound by

law, or has opted, to follow.

In addition, for the purpose of this sub-regulation, the term

"Working Committee" shall refer to and consist of a committee

that shall be established by the Director, as it may deem

appropriate, in order to review the results obtained from a full

vetting process undertaken by the Malta Police Force in

accordance with the provisions of this sub-regulation, and to

ensure that any decision is adequately taken, which committee

shall be composed of the Director, a senior member of the

department of industrial and employment relations selected by

the Director, an advocate appointed by the Minister and a

member of Identity Malta Agency appointed by the Chief

Executive Officer of the said Agency.

(3) The Director shall, by means of a public statement, make

public the fact that the licence of the applicant has been finally

revoked or not renewed on any of the grounds laid down in sub-

regulation (1) and shall disclose the name of the person sanctioned,

which persons may include the applicant and, or the competent person,

the particular breach of the provisions of these regulations and the

punishment or measure imposed. Such public statement shall be

published by the Director in any press release and, or on any website

maintained by the department responsible for employment and

industrial relations, for such period of time as the Director shall deem

fit. The Director shall further notify of such facts

(a) Identity Malta Agency who, upon receipt of such

notice, shall take every necessary measure to ensure that no

application for a residence permit submitted by the person

sanctioned shall be processed in accordance with the Single

Application Procedure for a Single Permit as regards Residence

and Work and a Common Set of Rights for those Third-Country

Workers Legally residing in Malta Regulations, save where any

application is submitted in relation to any employees already

employed by the applicant as at the date of receipt of such notice;

and

(b)

the Malta Police Force

Provided that the public statement and notifications shall be

made not later than one (1) week from the date of final revocation or

non-renewal of a licence taking into consideration the time for the

filing of an appeal or any appeal filed in accordance with these

regulations.

(4) The sanctioned person shall be considered as a black listed

person as defined in the Public Procurement Regulations and shall, on S.L. 601.03.

this ground, be prohibited from being given a public contract, as also

defined by the said regulations, and the Director shall, for the purpose

of enforcement of this sub-regulation, notify of the facts referred to in

sub-regulation (1) the Director of Contracts for the inclusion of the

person so sanctioned to the black list.

(5)

(a)

Where the Director intends to

(i) vary any condition to which the licence is

subject or to impose a new condition thereon;

(ii) to refuse an application for the licence or its

renewal; or

(iii) to revoke a licence,

he shall give the applicant or the licensee, as the case may be, a

notice in writing of this intention setting out the reasons for such

decision

Provided that in setting out the reasons for such decision,

account shall be taken of any restrictions that may be considered as

necessary and proportionate measures to protect the sources and

confidentiality of legally privileged information collected in the course

of the application process or any process undertaken thereafter, to

safeguard important information objectives of general public interest

of Malta, to protect national and public security, or as may be

otherwise imposed by any applicable law.

(b) A notice given under paragraph (a) shall state that the

recipient of the notice may, within such reasonable period of

time after receipt thereof as may be stated in such notice, being a

period of not less than forty-eight (48) hours and not longer than

thirty (30) days, make representations in writing to the Director

giving reasons why the proposed decision should not be taken.

The Director shall consider any representation so made before

arriving at a decision.

(6) The Director shall, as soon as practicable, notify his

decision in writing to the applicant or the licensee, as the case may be.

(7) Any person who has not obtained a licence in accordance

with these regulations or whose licence has been revoked shall

immediately cease to provide the services of an employment agency or

employment business. This shall be without prejudice to the provisions

of regulation 22.

(8) Any and all communications or notices that may be given

by the Director under these regulations may also be given by electronic

means.

(1) No payments or charges shall be demanded or levied

on any applicant for any employment services or any employee in

consideration of such employment services or in consideration of any

process by which such employment services are provided.

(2) No deductions shall be made from the wages of any

employee for any services rendered by an employment agency or

employment business.

Without prejudice to any other relevant provisions in any

regulations, orders or other subsidiary legislation made under or kept

in force under the Act, an employment agency or employment business

shall observe the following procedures

(a) when issuing advertisements for the filling of

vacancies or when making any form of publicity of the

employment agency or employment business or for any user, or

in any other official communication or in private agreements, the

licence number or any other identification registration number

issued by the Director shall be included;

(b) in the case of an employment agency or employment

business carrying the activity for the recruitment of persons for

employment, the licensee and in the absence of the licensee the

competent person, shall keep records indicating the names,

address, the registration number of a valid identification

document, qualifications and job experience of applicants for

employment and records indicating the name, address, Value

Added Tax registration number and Income Tax registration

number of the users of such employment services. Such records

shall be subject to inspection at any time by inspectors appointed

under the Act;

(c) in the case of temporary work agencies or

outsourcing agencies, records need to be kept in accordance with

the Transparent and Predictable Working Conditions

Regulations. Such records shall be subject to inspection at any

time by inspectors appointed under the Act;

(d) in the case of an employment agency or employment

business carrying the activity for the recruitment of persons for

employment, it shall be the responsibility of the employment

agency or employment business to ensure that no applicants for

employment are referred to any user undertaking unless the user

undertaking has provided such agency or business with precise

information about the vacancy to be filled, including an adequate

job description, the terms and conditions of employment offered,

any special requirements of the employer and any other

information that may be required by virtue of any other

applicable law. The employer shall ensure to provide any

applicants for employment engaged by him with a written

agreement incorporating the terms and conditions of

employment;

(e) in the employment of seamen, it shall be the

responsibility of the employment agency or employment

business as well as of the user undertaking to ensure that the

provisions of the Merchant Shipping Act are complied with;

(f) failure to comply with the provisions of paragraphs

(a) to (e) shall constitute an offence in terms of these regulations.

(1) It shall not be lawful for any employment agency or Employment of

expatriates.

employment business

(a) to seek to provide employment in Malta for an

expatriate, unless such employment is authorised in accordance

with the provisions of the Immigration Act; and

(b) to seek to hire the services of an expatriate to any

employer in Malta, unless the hire of such services is authorised

under the provisions of the Immigration Act.

(2) For the purposes of this regulation "expatriate" means a

person requiring a licence from the Minister responsible for

immigration to exercise any profession or occupation or hold any

appointment or be employed by any other person or engage in business

in Malta, in accordance with article 11 of the Immigration Act.

(1) In the case of an employment agency or employment Advertisements.

business carrying the activity for the recruitment of persons, it shall be

the responsibility of such agency or business to forward a reply in

writing within one (1) month to every applicant for employment who

had forwarded an application in writing in response to any

advertisement. Such reply shall include an acknowledgement of the

application and it shall indicate the name of the employer or of the

employment agency or employment business, as the case may be.

(2) It shall not be lawful for any employment agency or

employment business carrying the activity for the recruitment of

persons, which places an anonymous advertisement to request

applicants for employment to forward, in response thereof, any

photograph of the applicant for employment or any document which

includes any photograph of the applicant for employment.

(3) When an advertisement is placed by any employment

agency or employment business without any specific vacancy in view,

the employer or the employment agency or employment business, as

the case may be, shall specify such fact in the advertisement.

(4) Failure to comply with any of the provisions of the

preceding sub-regulations constitutes an offence in terms of these

regulations.

(5) It shall be the responsibility of the editor when publishing

or broadcasting, as the case may be, any advertisement, to ensure that

the provisions of regulation 11(a) and the provisions of sub-regulation

(2) have been complied with. Any editor who publishes or broadcasts

any advertisement in breach of these provisions shall be guilty of an

offence in terms of these regulations.

Any information provided to any employment agency or

employment business by any applicant for employment or by any user

undertaking shall be guarded as confidential, and it shall not be

divulged for any purpose other than for the reasons for which it had

been provided, except with the consent in writing of the person

providing the information, or without such consent for purposes of

complying with the provisions of regulation 11(b), or in compliance

with any order issued by a competent Court, or any request by the

Director in pursuance of any investigation into any complaint or claim

referred to it or in accordance with these regulations. Any breach of

this regulation shall constitute an offence in terms of these regulations.

(1) It shall prohibited and considered unlawful for any

licensee to undertake any action or measure that results or may result

in

(a) the restriction of movement of any employees making

use of their employment services, including but not limited to the

withholding of identification documents, physical confinement

or the creation of financial dependencies. Any licensee shall

ensure that employees making use of his employment services,

are allowed the freedom to seek other employment without fear

of any financial or other consequences that may result in a

deterrent for them doing so;

(b) deceiving any employees making use of his

employment services, into incurring substantial debts with the

consequence that the said employees are not able to leave their

employment or seek other employment opportunities;

(c) any employees making use of their employment

services, not being able to terminate their employment through

the use of threats, coercion or other retaliation measures or for

fear of facing such exploitative situations and not being able to

seek other employment opportunities; or

(d) forcing or coercing employees making use of their

employment services, to work against their will and be subjected

to involuntary labour.

(2) Should the Director be notified by the Malta Police Force,

Identity Malta Agency, the Principal Immigration Officer or any

competent authority dealing with employment that any licensee or

applicant for a licence, whether original or renewed, has acted in

breach of the provisions of sub-regulation (1), the Director shall

revoke any existing licence or refuse to issue or renew any such

licence, as the case may be, whereupon the applicable provisions

relating to such revocation or refusal shall mutatis mutandis apply.

(3) The provisions of sub-regulation (1) shall be without

prejudice to any other consequence of the act or omission of the

offender under civil or criminal law.

The Director shall have at any time the right to examine the Director’s

books, including any records of any licensed employment agency or rights.

employment business or of any other employment agency or

employment business carrying out its activities in Malta in accordance

with the Act and the regulations made thereunder, or to request any

information which in the opinion of the Director is reasonably required

for ensuring that the conditions of any licence issued by the Director or

the provisions of these regulations are being complied with, or for

protecting the interests of applicants for employment. Failure to

comply with any demand made by the Director in accordance with this

regulation shall constitute an offence in terms of these regulations

Provided that the Director shall also have at any time the

right to examine the books, including any records, of any natural or

legal person operating as an employment agency or employment

business without a licence.

No person may perform the services referred to in article Article 110 of

the Constitution.

110(6) of the Constitution.

The burden of proof to prove the subsistence of any of the

Burden of proof.

material facts referred to in these regulations shall, in all cases, rest

with the employment agency or employment business.

(1) The Agencies Guarantee Fund shall be administered

by an Administration Board, which shall be composed of

Guarantee Fund.

(a)

a Chairperson nominated by the Minister;

(b) the four (4) representatives of employees appointed

on the Employment Relations Board in accordance with article

3(2)(c) of the Act;

(c) the four (4) representatives of employers appointed

on the Employment Relations Board in accordance with article

3(2)(d) of the Act;

(d)

a member nominated by the Minister responsible for

finance;

(e)

the Chairperson of Jobsplus; and

(f) a person appointed by the Minister who shall be a

member of the legal profession.

(2)

The Administration Board shall regulate its own procedure.

(3) The Administration Board shall keep proper books of

account and records regarding claims registered and paid out of the

Agencies Guarantee Fund and any reimbursements which are obtained

by the Administration Board in accordance with regulation 20(5)(d).

(4) The Administration Board shall have the power to appoint

experts to assist it in any matter under its consideration, as may be

required.

(5) The Administration Board shall publish an annual report of

its activities, together with the annual audited accounts of the Agencies

Guarantee Fund.

(6) The Administration Board shall have a distinct legal

personality and shall be capable of entering into contracts, of suing and

being sued, and doing all such things and entering into such

transactions as are incidental or conducive to the fulfilling of its

objectives.

(7) The legal and judicial representation shall vest in the

Chairperson or in any other member of the Administration Board

whom the Chairperson may authorise in writing for such purpose.

(8) The address of the Administration Board shall be any such

address which may be in use from time to time as the head office of the

Department responsible for employment and industrial relations, and

any correspondence shall be addressed to the Chairperson.

(1) For the purpose of ensuring compliance by any Bank guarantee

temporary work agency or outsourcing agency with the licence and

utilisation.

obligations and adherence to the relevant provisions of these

regulations throughout the term of the licence, the relevant agency

shall, prior to the commencement date of the licence in accordance

with these regulations, provide a bank guarantee in favour of the

Administration Board, the amount of which shall be the total of twenty

thousand euro (€20,000) for agencies having a number of employees

which is less than twenty (20) employees and for agencies having a

number of employees which is equal or greater than twenty (20),

twenty thousand euro (€20,000) and a sum equivalent to two percent

(2%) of the total annualised wages payable to all the employees of the

applicant as at the date of the application, whether for the first time or

for a renewal, up to a maximum of three hundred thousand euro

(€300,000).

(2) If the Director revokes or refuses the renewal of a licence

of any temporary work agency or outsourcing agency for any of the

grounds set out in regulation 9(1), the Director shall immediately

notify the Administration Board thereof, whereupon the

Administration Board shall take all the necessary action so that the

bank guarantee shall be forfeited in full in favour of the

Administration Board and deposited into the Agencies Guarantee

Fund.

(3) Any employee whose employment is terminated by a

temporary work agency or outsourcing agency, as the case may be,

because of the revocation or non-renewal of a licence on the basis of

any of the grounds set out in regulation 9(1), shall inform the Director

and the Administration Board of such event within two (2) months

from the date of such termination.

(4) Should the Administration Board determine and confirm

that the employee’s employment was terminated in accordance with

sub-regulation (3), such employee shall be eligible to receive a share

of the amount of the bank guarantee provided by such employee’s

employer whose bank guarantee has been forfeited in accordance with

sub-regulation (2).

(5)

The Administration Board shall distribute the amount of

the bank guarantee referred to in sub-regulation (4), equally among all

the employees of the same employer whose bank guarantee has been

forfeited in accordance with sub-regulation (2) and who shall have

informed the Administration Board of their termination of

employment within the time period referred to in sub-regulation (3).

(6) The employee shall, on notifying the Administration

Board, forward any documentation which may be necessary to enable

the Administration Board to make its determination of the employee’s

eligibility to the share of the amount of the bank guarantee and the

Administration Board may request any information from any person to

enable it to perform its obligations, and it shall be the duty of any such

person to cooperate fully with the Administration Board.

(7) The Administration Board shall release the bank guarantee

within three (3) months from the date of notification by the Director of

the termination or non-renewal of the licence, as long as the Director is

satisfied that the temporary work agency or outsourcing agency, as the

case may be, shall no longer carry on any activities requiring such

licence in accordance with these regulations, and that all the

obligations under the licence and these regulations have been met.

(8) The provisions of this regulation shall be without prejudice

to the right of the employee to refer any entitlement for any unpaid

wages or any related matter to the Director or to any remedy that the

employee may have under any other provision of law.

(1) Any person who breaches any provision of these

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

liable to a fine (multa) of not less than five thousand euro (€5,000) but

not exceeding seven thousand euro (€7,000)

Provided that when a person is convicted of having

received any payment from any applicant for employment or of having

made any deductions from the wages due to an employee in

consideration of any services provided by an employment agency or

employment business, the Court shall, in determining the punishment,

take into consideration any refund made by such person to the

applicant for employment services of any payment received or

deduction made

Provided further that if the offence consists in the operation

of an employment agency or employment business without being in

possession of a valid licence in accordance these regulations, any

person responsible therefor shall be guilty of an offence, and shall on

conviction be liable, to a fine (multa) of not less than twenty-five

thousand euro (€25,000) but not exceeding thirty thousand euro

(€30,000).

(2) The provisions of sub-regulation (1) shall be without

prejudice to the right of the Director to revoke or vary the conditions

of a licence of any employment agency or employment business in

accordance with regulation 9(1), to the forfeiture of the bank guarantee

in accordance with regulation 20(2), and to any other consequence of

the act or omission of the offender under civil or criminal law.

(3) Where an offence is committed by the applicant or any

other body or association of persons, be it corporate or unincorporated,

every person who at the time of the commission of the offence was a

director, competent person, manager or other similar officer of the

applicant or such body or association, or was purporting to act in any

such capacity, shall be guilty of that offence, unless such person proves

that the offence was committed without his knowledge and that he

exercised all due diligence to prevent the commission of such offence.

(1) Without prejudice to the provisions of these Appeals.

regulations, an appeal shall be filed to the Appeals Board with respect

to

(a) any failure to inform an applicant or a licensee, as the

case may be, of the refusal of its application for a licence or the

renewal thereof, or of the revocation or variation of its licence, in

accordance with regulation 9(1) and the consequences arising

therefrom in accordance with these regulations;

(b) any refusal of an application for a licence, whether

original or renewed, or the revocation of a licence in accordance

with regulation 9(1), and the consequences arising therefrom in

accordance with these regulations; and

(c) any variation of a licence in accordance with

regulation 9(1).

(2) The provisions of the Act relating to the Appeals Board

shall apply mutatis mutandis to appeals that may be brought before the

Appeals Board in accordance with this regulation.