Employment Agencies (Amendment No. 2) Regulations, 2024

L.N. 109 of 2024

EMPLOYMENT AND INDUSTRIAL RELATIONS ACT

(CAP. 452)

Employment Agencies (Amendment No. 2) Regulations, 2024

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:-

The title of these regulations is the Employment Agencies Title.

(Amendment No. 2) Regulations, 2024 and these regulations shall be

read and construed as one with the Employment Agencies Regulations, S.L. 452.130.

hereinafter referred to as the "principal regulations".

Regulation 2 of the principal regulations shall be amended Amends

regulation 2 of

as follows

the principal

regulations.

(a) immediately after the definition "conditions of

employment", there shall be added the following new definition

" "Department" means the department responsible for

industrial and employment relations;";

(b) immediately after the definition "employment

services", there shall be added the following new definition

" "full vetting process" means the vetting, due

diligence and verification process carried out in accordance

with regulation 9(2); "

(c) in the definition "user undertaking" the words

"business." shall be substituted by the words "business;" and

immediately after there shall be added the following new

definition

" "Working Committee" means the committee

established in accordance with regulation 9A.".

Regulation 3 of the principal regulations shall be amended Amends

regulation 3 of

as follows

the principal

regulations.

(a)

sub-regulation (3) thereof shall be amended as

follows

(i) paragraph (a) thereof, shall be substituted by

the following new paragraph

"(a) any employer who manages any

employment agency or employment business

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;";

(ii)

in paragraph (c) thereof, the word "and" shall be

deleted;

(iii) in paragraph (d) thereof, the word "Act." shall

be substituted by the words "Act; and"; and

(b) sub-regulation (4) thereof, shall be substituted by the

following new sub-regulation

"(4) Except in those cases where the employment

business is limited to the recruitment of persons for

employment and does not involve the conclusion of

contracts of employment or employment relationships with

employees, the employment agency or employment

business may 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.".

Sub-regulation (4) of regulation 4 of the principal

regulations shall be substituted by the following new sub-regulation

"(4) Identity Malta Agency shall not accept and

process any application for a residence permit 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, or any application

for the renewal of such a permit from a third-country

national unless that application is endorsed by his

prospective employer who is in possession of a valid

licence issued by the Director and who in accordance with

these regulations is bound to have a valid licence

Provided that sub-regulation (4) shall not apply to

applications submitted by third-country nationals and who

paid the required fee for an employment licence prior to the

coming to force of these regulations. In such cases the

third-country national applicant may be given reasonable

time by Identity Malta Agency to seek alternative

employment with another employer.".

Regulation 5 of the principal regulations shall be amended Amends

as follows

(a) in sub-paragraph (iii) of paragraph (d) of sub-

regulation (1) thereof, immediately after the words

"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", there shall

be added the words "in print and electronically,";

(b) sub-paragraph (2) thereof shall be substituted by the

following new sub-paragraph

"(2) Applications, whether submitted by a first time

applicant or a licensee for renewal of a licence shall also be

accompanied by

(a) a sworn declaration by the applicant to the

effect that he, or in the case of where the applicant is a

legal person each of its directors, is not an individual

who at any time was found guilty or, at the time of the

application, is being interrogated and suspected, or

has criminal charges brought against him for any

criminal offence, other than an involuntary offence,

punishable with more than two (2) years

imprisonment;

(b) a recent original conduct certificate in

relation to the applicant, or in the case where the

applicant is a legal person, in relation to each of its

directors, from each country or countries of residence

where such a person has resided for a period of at

least two (2) years during the last ten (10) years,

unless the applicant manages to prove to the

satisfaction of the Director that it is not possible to

obtain any such certificate from any particular

country of residence

Provided that no original conduct certificates

are retained and no copies of such documents shall be

made by the Director after having examined and kept

an internal note of the contents of the documents;

(c) a sworn declaration by the nominated

competent person that he is not a person who at any

time was found guilty, or at the time of the

application, is being interrogated and suspected, or

has criminal charges brought against him for any

criminal offence, other than an involuntary offence,

punishable with more than two (2) years

imprisonment;

(d) a recent original conduct certificate in

relation to the nominated competent person from each

country or countries of residence where such person

has resided for a period of at least two (2) years

during the last ten (10) years, unless the applicant

manages to prove to the satisfaction of the Director

that it is not possible to obtain any such certificate

from any particular country of residence

Provided that no original conduct certificates

are retained and no copies of such documents shall be

made by the Director after having examined and kept

an internal note of the contents of the documents; and

(e) 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 each of the

applicant’s directors and shareholders where the

applicant is a legal person.".

Regulation 6 of the principal regulations shall be Substitutes

regulation 6 of

substituted by the following new regulation

the principal

regulations.

"6. Where after an initial assessment of the

application for a licence under these regulations, or a

renewal thereof, the Director is of the opinion that further

verifications on the applicant or his business, or on the

competent person are required, the applicant or the

licensee for renewal shall be required to furnish to the

Director, at the applicant’s or the licensee’s own cost, such

due diligence reports from reputable third party operators

as the Director may require and approve in the

circumstances.".

Regulation 7 of the principal regulations shall be amended Amends

regulation 7 of

as follows

the principal

regulations.

(a) sub-regulation (1) thereof, except for the proviso

shall be substituted by the following new sub-regulation

"(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, upon the

recommendation of the Working Committee, for a period of

two (2) years beginning from the date specified in the

licence for its commencement. Such licence shall be

renewed for further periods of two (2) years, subject to the

submission of an application for such renewal and the

continuous fulfilment of the requirements laid down in

these regulations:";

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

following new sub-regulation

"(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 may also be

subject to such conditions as the Director may impose upon

the recommendation of the Working Committee in

accordance with paragraph (d) of sub-regulation (16) of

regulation 9A. In addition, the Director may impose other

conditions 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.".

Regulation 9 of the principal regulations shall be amended

(a)

sub-regulation (1) thereof, shall be amended as

(i) the first part thereof shall be substituted by the

following

"(i) The Director may, on the recommendation

of the Working Committee, refuse an application

submitted by a first time applicant or a licensee for

the renewal of a licence, or may revoke a licence or

vary any of the conditions of a licence, as the case

may be, on any of the following grounds:";

(ii) in paragraph (c) thereof, the words

"undertaken by the Malta Police Force" shall be

deleted;

(iii) in paragraph (d) thereof, the words

"undertaken by the Malta Police Force" shall be

deleted;

(iv) in paragraph (e) thereof, the words

"undertaken by the Malta Police Force" shall be

deleted;

(b)

sub-regulation (2) thereof, shall be amended as

(i) the first part thereof, shall be substituted by the

following

"(2) The Director shall carry out the vetting,

due diligence and verification process of the

eligibility of the applicant, referred to in these

regulations as the "full vetting process", in such

manner, and according to such processes as the

Director may determine from time to time, and such

full vetting process may include security verifications

to be carried out by law enforcement authorities, who

may use available tools for such purposes, as well as

all other verifications as regards money laundering

and terrorism financing risks by other competent

authorities having the necessary authority to conduct

such verifications. For the purpose of this regulation,

the phrase the "full vetting process" shall include but

not be limited to a thorough investigation and

evaluation of a relevant person’s background

including whether such person:"; and

(ii) the paragraph immediately after paragraph (i)

thereof, shall be deleted;

(c)

paragraph (a) of sub-regulation (3) thereof, shall be

substituted by the following new paragraph

"(a) Identity Malta Agency, for any required action

in respect of applications being processed or permits issued

in terms of 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, whereby the application has been

endorsed by the person or persons sanctioned by the

Director, as well as any pending visa applications.";

(d) paragraph (b) of sub-regulation (5) thereof shall be

substituted by the following new sub-regulation

"(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 stipulated 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

referring the matter to the Working Committee."; and

(e) in sub-regulation (6) thereof, the words "his decision"

shall be substituted by the words "the decision".

Immediately after regulation 9 of the principal regulations Adds new

regulation 9A to

the principal

regulations.

there shall be added the following new regulation

(1) There shall be a Working Committee

which shall have the function to issue recommendations

to the Director regarding the issue of licences and

renewals of licences under these regulations, including

any conditions which are to be attached to such licences

in terms of these regulations, and to issue

recommendations to the Director for the revocation of

licences or any other matter which is to be referred to

the Working Committee in accordance with these

regulations.

(2) The Working Committee shall consist of a

Chairperson and five (5) other members, one (1) of

whom shall be a lawyer. One (1) of its members shall be

an officer of Identità nominated by its Chief Executive

Officer while another member shall be an officer of

Jobsplus nominated by its Chief Executive Officer.

(3) The members of the Working Committee

shall be appointed by the Minister for a term of three (3)

years, but the members so appointed shall be eligible for

re-appointment on the expiration of their term of office.

(4) The Minister may designate any one (1)

other member of the Working Committee as Deputy

Chairperson and the member so designated shall have all

the powers and perform all the functions of the

Chairperson during his temporary absence or inability to

act as Chairperson, or while the Chairperson is on

vacation, or during any vacancy in the office of the

Chairperson.

(5) Any member may, before expiration of his

term of office, resign by letter addressed to the Minister

Provided that the members of the Working

Committee may be removed from office by the Minister

prior to the expiry of their term of office where, in the

opinion of the Minister, a member is unable to perform

the duties of his office or there are other reasonable

grounds for his removal.

(6) The Director and the employees of the

Department shall not be eligible to be members of the

Working Committee.

(7) The remuneration paid to members of the

Working Committee shall be established by the Minister

in accordance with established Government of Malta

guidelines.

(8) The meetings of the Working Committee

shall be called by the Chairperson as often as may be

necessary for the performance of its functions under

these regulations either on his own initiative or at the

request of the Director.

(9) The quorum at all meetings of the Working

Committee shall in no case be less than three (3)

members.

(10) The Working Committee shall regulate its

own procedure.

(11) An act or proceeding of the Working

Committee shall be valid notwithstanding any vacancy

among its members.

(12) In the absence of the Chairperson and the

Deputy Chairperson at any meeting of the Working

Committee, the members present may select from

amongst themselves a person to act as Chairperson at the

meeting.

(13) The decisions of the Working Committee

shall be taken by a majority of the votes of the members

present and voting. In the case of equal votes, the

Chairperson or the other person presiding at the meeting

shall have a second or casting vote.

(14) The Working Committee may appoint any

employee of the Department to act as Secretary to the

Working Committee.

(15) The Director or his representative shall

attend meetings of the Working Committee and shall

provide the Working Committee with all information

concerning any matter under consideration including the

full vetting process.

(16) The Working Committee shall review

applications for a licence, or renewals of a licence,

submitted to it by the Director and shall have the final

say on whether an application is favourably

recommended for approval or otherwise, ensuring that

decisions made are fair and objective and according to

law. When reviewing applications, the Working

Committee shall

(a) consider all the information submitted

by the applicant and the full vetting process

conducted on the applicant, and exercise

appropriate methods of inquiry and examination

with respect to the information submitted;

(b) request the Director to provide any

further information or to conduct any further

verifications or enquiries as the Working

Committee may consider necessary in the

circumstances;

(c) consider whether all the requirements

of these regulations have been satisfied or whether

any requirement is pending; and

(d) where any requirement is pending,

consider whether the applicant has sufficiently

proved that he is in the process of satisfying the

said requirement taking due account of an action

plan submitted by the applicant in this regard, and

in such case, consider whether a licence may be

issued subject to the fulfilment of the conditions

by the applicant.

(17) It shall be entirely within the discretion of

the Working Committee to decide whether a licence may

be issued subject to the fulfilment of conditions by the

applicant, and nothing in the foregoing provision or in

these regulations, shall be construed as granting a right

to applicants to request the issue of a licence where they

have not fulfilled all the requirements of these

regulations.

(18) Upon a request by the Director, the Working

Committee shall also have the final say on whether to

vary or impose additional conditions to a licence or

whether a licence shall be revoked, ensuring that

decisions made are fair and objective and according to

law. Before making any such recommendation the

Working Committee shall also consider any submissions

in writing filed by the licence holder on the matter in

accordance with regulation 9(5)(b).

(19) The members of the Working Committee

shall treat as confidential all information concerning

applicants and any information communicated to them

by the Director or any other officer, employee or advisor

of the Department.".

The Second Schedule to the principal regulations shall be

amended as follows

(a) in paragraph (ii) of item (a) thereof, the words "one

thousand five hundred euro (€1,500) shall be substituted by the

words "three thousand euro (€3,000),"; and

(b) in paragraph (ii) of item (b) thereof, the words "one

thousand five hundred euro (€1,500) shall be substituted by the

words "three thousand euro (€3,000),"

€0.99