EQUAL TREATMENT IN OCCUPATIONAL SOCIAL SECURITY AND OTHER PENSIONS SCHEMES REGULATIONS

EQUAL TREATMENT IN OCCUPATIONAL SOCIAL

SECURITY AND OTHER PENSIONS SCHEMES

SUBSIDIARY LEGISLATION 318.20

EQUAL TREATMENT IN OCCUPATIONAL SOCIAL

SECURITY AND OTHER PENSIONS SCHEMES

REGULATIONS

13th September, 2005

LEGAL NOTICE 317 of 2005, as amended by Legal Notices 424 of 2007,

73 of 2014 and 13 of 2016.

(1) The title of these regulations is the Equal Treatment in

O c c u p a t i o n a l S o c i a l Se c u r i t y a n d o t h e r P e n s i o n s Sc h e m e s

Regulations.

(2) These regulations give effect to the relevant provisions of

Directive 2006/54/EC of the European Parliament and of the

Council of the 5th July 2006 on the implementation of the principle

of equal opportunities and equal treatment of men and women in

matters of employment and occupation (recast).

(3) The purpose of these regulations is to implement the

principle of equal treatment for men and women in occupational

social security and other pension schemes.

(4)

These regulations shall be applicable to

(a) members of the working population, including self-

employed or self-occupied persons, persons whose

activity is interrupted by illness, maternity, accident or

involuntary unemployment and persons seeking

employment, retired and disabled workers, and those

claiming under them, in accordance with the

provisions of applicable law, and, or practice;

(b) occupational schemes which provide protection

against sickness, invalidity, old age, early retirement,

industrial accidents, occupational diseases and

unemployment;

(c) occupational schemes which provide for other social

benefits, whether in cash or in kind, and in particular

survivors’ benefits and family allowances if such

benefits are accorded to employed persons,

constituting a consideration paid by the employer to

the worker by reason of the latter’s employment;

(d) pension schemes for particular categories of workers

which provide for benefits payable by reason of the

employment relationship with the public employer and

established under the Malta Armed Forces Act, the

Police Act, the Prisons Act and the Pensions

Ordinance.

(5)

These regulations shall not apply to

(a) individual contracts for self-employed workers;

(b) schemes for self-employed workers having only one

EQUAL TREATMENT IN OCCUPATIONAL SOCIAL

SECURITY AND OTHER PENSIONS SCHEMES

member;

(c) insurance contracts, in the case of salaried workers, to

which the employer is not a party;

(d) optional provisions of occupational schemes offered to

participants individually to guarantee them -

(i) additional benefits, or

(ii) a choice of date on which the normal benefits for

self-employed workers will commence or, a

choice between several benefits;

(e) occupational schemes in so far as benefits are financed

by contributions paid by workers on a voluntary basis.

(1) For the purposes of these regulations, unless the

context requires otherwise

"the Act" means the Social Security Act;

"the Acts" means the Social Security Act, the Malta Armed

Forces Act, the Police Act, the Prisons Act and the Pensions

Ordinance;

"discriminatory treatment" means any distinction, exclusion,

restriction or difference in treatment, whether direct or indirect,

between men and women which is not justifiable in a democratic

society;

"occupational social security schemes" means schemes, intended

to supplement or replace the benefits provided by the Act, whether

membership of such schemes is compulsory or optional, and the

purpose of which is to provide employed, self-employed and self-

occupied persons in an undertaking or group of undertakings, any

area of economic activity, occupational sector or group of sectors;

"principle of equal treatment" means the absence of direct or

indirect discriminatory treatment between men and women in

particular by reference to marital or family status;

"scheme" means occupational social security schemes and

pension schemes within the scope of these regulations.

(2) Subject to the provisions of subregulation (1), terms and

expressions used in these regulations shall, unless the context

requires otherwise, have the meaning assigned to them by the Acts.

(1) It shall be unlawful for a person to subject another

person to discriminatory treatment, whether directly or indirectly,

particularly with regard to

(a) the scope of the schemes and the conditions of access

to them;

(b) the obligation to contribute and the calculation of

contributions; and

(c) the calculation of benefits, including supplementary

benefits due in respect of a spouse or dependants, and

the conditions governing the duration and retention of

entitlement to benefits.

EQUAL TREATMENT IN OCCUPATIONAL SOCIAL

SECURITY AND OTHER PENSIONS SCHEMES

(2)

For the purposes of these regulations

(a) direct discriminatory treatment shall be taken to occur

where one person is treated less favourably than

another is, has been, or would be, treated in a

comparable situation;

(b) indirect discriminatory treatment shall be taken to

occur where an apparently neutral provision, criterion

or practice would put persons at a disadvantage when

compared with other persons unless that provision,

criterion or practice is objectively justified by a

legitimate aim and the means of achieving that aim are

appropriate and necessary.

(1) Any provisions contrary to the principle of equal

t r e a t m e n t i n a n y l a w, i n d i v i d u a l o r c o l l e c t i v e c o n t r a c t s o r

agreements, internal rules of undertakings or rules governing any

registered organisation in terms of applicable law, shall be

considered null and void.

(2) The provisions referred to in subregulation (1) shall include

such provisions

(a) determining the persons who may participate in a

scheme;

(b) fixing the compulsory or optional nature of

participation in a scheme;

(c) laying down different rules as regards the age of entry

into the scheme or the minimum period of employment

or membership of the scheme required to obtain the

benefits thereof;

(d) laying down different rules, except as provided for in

paragraphs (h) and (j), for the reimbursement of

contributions when a worker leaves a scheme without

having fulfilled the conditions guaranteeing a deferred

right to long-term benefits;

(e) setting different conditions for the granting of benefits

or restricting such benefits to workers of one or other

of the sexes;

(f) fixing different retirement ages;

(g) suspending the retention or acquisition of rights during

periods of maternity leave or leave for family reasons,

which are granted by law or agreement, and are paid

by the employer;

(h) setting different levels of benefit, except in so far as

may be necessary to take account of actuarial

calculation factors which differ according to sex in the

case of defined-contribution schemes

Provided that in the case of funded defined-benefit

schemes, certain elements including

(i) the conversion into a capital sum of part of a

periodic pension;

(ii) the transfer of pension rights;

EQUAL TREATMENT IN OCCUPATIONAL SOCIAL

SECURITY AND OTHER PENSIONS SCHEMES

(iii) a revisionary pension payable to a dependant in

return for the surrender of part of a pension;

(iv) a reduced pension where the worker opts to take

early retirement;

may be unequal where the inequality of the amounts

results from the effects of the use of actuarial factors

differing according to sex, at the time when the

scheme’s funding is implemented;

(i) setting different levels for workers’ contributions;

(j) setting different levels for employers’ contributions,

except

(i) in the case of defined-contribution schemes if

the aim is to equalize the amount of the final

benefits or to make them more nearly equal for

both sexes;

(ii) in the case of funded defined-benefit schemes

where the employer’s contributions are intended

to ensure the adequacy of the funds necessary to

cover the cost of the benefits defined;

(k) laying down different standards or standards

applicable only to workers of a specified sex, except as

provided for in paragraphs (h) and (j), as regards the

guarantee or retention of entitlement to deferred

benefits when a worker leaves a scheme.

(3) For the purpose of these regulations, where the granting of

benefits is left to the discretion of the scheme’s management

bodies, the latter must comply with the principle of equal

Nothing in these regulations shall

(a) prejudice any provisions in any law relating to the

protection of women by reason of maternity;

(b) for the purposes of granting a pension by virtue of a

scheme, preclude any employer from granting to

persons who have already reached retirement age but

who have not yet reached retirement age for the

purposes of granting a statutory pension, a pension

supplement the aim of which is to make equal the

overall amount of benefit paid to these persons in

relation to the amount paid to persons of the other sex

in the same situation who have already reached

statutory retirement age, until such time when the

persons benefiting from the supplement reach the

retirement age established by law.

Where in a scheme, there is provision for a flexible

pensionable age, then a claim by either men or women claiming

under the same conditions shall be construed to be compatible with

these regulations.

(1)

Where an allegation is made that some form of

EQUAL TREATMENT IN OCCUPATIONAL SOCIAL

SECURITY AND OTHER PENSIONS SCHEMES

discriminatory treatment has occurred, the person making the

allegation shall have the right to send a written notification to the

s c h e m e ’s m a n a g e m e n t b o d y, h e r e i n a f t e r r e f e r r e d t o a s t h e

management body, of the alleged discriminatory treatment

received, giving any relevant details and requesting a reply. On

receipt of such notification, the management body shall submit a

written reply within ten working days of the date of receipt of such

notification, giving the management body’s version of events and

any grounds for disputing the allegations, as well as an explanation

of any relevant procedures adopted by the management body to

prevent discriminatory treatment.

(2) Any correspondence referred to in subregulation (1) shall

be admissible in proceedings brought before any court, and if it

appears to the court that the management body deliberately, and

without reasonable excuse, omitted to reply within ten working

days of the date of receipt of such notification or that the reply was

evasive or equivocal, the court may draw any inference from that

fact that it considers just and equitable to draw, including an

inference that an unlawful act was committed.

An employee who is dismissed shall be regarded to have

been unfairly dismissed if the reason, or if more than one, the

principal reason, of the dismissal of that employee was a response

on the part of the employer to a complaint made at undertaking

level, or to the institution of legal proceedings aimed at enforcing

compliance with the principle of equal treatment.

Nothing shall prevent any association, organisation or

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

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

in support of the complainant, with his or her approval, in any

judicial or administrative procedure provided for the enforcement

of obligations under these regulations.

Any person contravening the provisions of these

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

liable to a fine (multa) not exceeding two thousand and three

hundred and twenty-nine euros and thirty-seven cents (2,329.37).