THE WORK-LIFE BALANCE FOR PARENTS AND CARERS REGULATIONS

SUBSIDIARY LEGISLATION 452.125

THE WORK-LIFE BALANCE FOR PARENTS AND

CARERS REGULATIONS

2nd August, 2022

LEGAL NOTICE 201 of 2022 , as amended by Legal Notice 102 of

2026.

The title of these regulations is the Work-Life Balance

for Parents and Carers Regulations.

(1)

The scope of these regulations is to transpose the

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

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

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

(2)

These regulations transpose minimum requirements

designed to achieve equality between men and women with regard to

labour market opportunities and treatment at work, by facilitating the

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

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

related to the following

(a)

paternity leave, parental leave and carers' leave;

(b)

flexible working arrangements for workers who

are parents, or carers.

(3)

These regulations apply to all workers, men and women,

who have an employment contract or employment relationship as

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

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

as the Court of Justice of the European Union.

(1)

In these regulations, unless the context otherwise

requires

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

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

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

worker, and who is in need of care or support for a serious medical

reason;

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

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

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

support for a serious medical reason;

"flexible working arrangements" means the possibility for

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

remote working arrangements, flexible working schedules, or reduced

working hours;

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

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

(Alternative Care) Act, to foster a child;

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

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

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

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

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

and insofar as recognised by national law, for equivalent second

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

purposes of providing care;

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

2 of the Act

Provided that

(a)

when the employee is in part-time employment on

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

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

over successive thirteen (13) week periods commencing on the

first of January of each calendar year; and

(b)

when the employee has not been in part-time

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

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

number of weeks in employment;

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

or, partner in civil partnership, without prejudice to regulation 4(3) of

the Urgent Family Leave Regulations;

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

(2)

Without prejudice to the Organisation of Working Time

Regulations, reference to working days in these regulations shall be

understood as referring to the full-time working pattern.

(1)

Fathers or, equivalent second parents, have the

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

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

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

(2)

The right to paternity leave shall not be subject to a period

of work qualification or to a length of service qualification.

(3)

The right to paternity leave shall be granted irrespective

of the worker’s marital or family status.

(1)

Every worker is entitled to parental leave per

child, whether full-time, part-time, and whether employed on an

indefinite or fixed-term contract

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

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

twelve (12) months

Provided further that for the purpose of calculating the

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

contract term

(a)

when there are successive fixed term contracts

with the same employer, the sum of these contracts shall be

taken into account, and

(b)

when there is a fixed term contract which is

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

said period between the two contracts shall also be taken into

account

Provided further that unless the employer and the

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

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

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

resumption of duties, and the employee shall have no right to return to

work prior to the agreed date of resumption of duties.

(2)

The minimum periods of entitlement mentioned in the

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

entitlement has been established in the contract of service of the

worker or in a collective agreement applicable to the worker.

(3)

These regulations shall be applicable without prejudice

to the introduction and implementation of more favourable provisions

in collective agreements or other agreements entered into between the

employer and the worker.

(4)

Workers have the right to request that they take parental

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

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

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

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

request

Provided that, without prejudice to any collective

agreement applicable to the worker, the employer together with the

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

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

(5)

A worker applying for parental leave from the employer

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

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

taking such leave.

(6)

Without prejudice to the Act, the Minister may issue

regulations to provide for conditions of access to and detailed

arrangements for the application of parental leave adapted to the needs

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

with a disability, or a long-term illness

Provided that in the case of parents with a disability or

parents with children with a disability, without prejudice to the

applicability of the Act, any arrangement concerning parental leave

which goes counter to the provisions of the Equal Opportunities

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

(7)

Upon the granting of parental leave, during the period of

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

opportunities arising within the place of work, and in order to facilitate

the return to work following parental leave, both the employer and

employee concerned are obliged to maintain contact during the period

of leave and may make arrangements for any appropriate reintegration

measures, which are to be decided between the parties themselves.

(1)

Every whole-time or part-time worker, employed

on an indefinite or fixed-term contract, who is recognised as a parent in

the act of birth of a child born in a foreign country, which act is drawn

up or registered by the competent authority in that country and is

subsequently registered in Malta in accordance with the provisions of

article 244 of the Civil Code, shall be entitled to an uninterrupted

period of eighteen (18) weeks of leave, that shall commence to run

either on the date of the birth of the child or up to two (2) weeks prior

to the expected date of birth of the child, as the worker may decide

Provided that where a worker is on any other leave

provided for under the Act or under any order or regulations issued

thereunder, the leave established by this regulation shall be postponed

until the expiry of such other leave

Provided further that a worker who avails himself of the

leave established by this regulation shall not be entitled to paternity

leave.

(2)

The leave established by these regulations shall apply to

those workers who are recognised as parents of children born outside

Malta, where neither person indicated as a parent on the act of birth

would have given birth to the child

Provided that this leave shall not apply in cases of

adoption.

(3)

Any worker who intends to avail himself of leave in

terms of these regulations shall notify the employer in writing of the

expected date of the birth of the child. The notification shall

(a)

include an official document, translated in the

Maltese or the English language which translation

shall be apostilled, issued by a clinic, healthcare

institution or competent authority, which document

shall expressly indicate that the worker is involved

in the pregnancy as an eventual parent of the child;

and

(b)

be given to the employer at least four (4) weeks

before the expected date of the birth of the child,

insofar as is reasonably practicable.

(4)

A worker who avails himself of the leave established by

this regulation shall, by not later than two (2) calendar months from

his return to work, provide the employer with an authenticated copy of

the act of birth of the child registered in Malta in accordance with the

provisions of article 244 of the Civil Code, which act recognises the

worker as a parent. In the absence thereof, the worker shall be liable,

without prejudice to any other liability under the Act, to pay the

employer a sum equivalent to the basic wages he received during such

leave.

(5)

Without prejudice to sub-regulation (6), a worker who

avails himself of leave established by this regulation shall be entitled

to full wages for the first fourteen (14) weeks of such leave but if the

worker chooses to avail himself of any additional leave exceeding

fourteen (14) weeks, the employer shall not be obliged to pay any

wages for such additional period beyond the said fourteen (14) weeks,

without prejudice to any relevant benefit to which the worker may be

entitled in respect of any period of leave which exceeds fourteen (14)

weeks in accordance with the Social Security Act to which the worker

may be entitled if he chooses to avail himself of leave exceeding the

paid fourteen (14) weeks.

(6)

The leave in terms of this regulation shall in the case of

(a)

a single parent, be enjoyed by such parent; or

(b)

more than one (1) parent

(i)

if only one (1) parent is in employment on

the date of commencement of the leave, such

leave shall be enjoyed by that parent; or

(ii)

where both parents are in employment,

whether with the same or different

employers, on the date of commencement of

the leave, each parent shall be entitled to such

part of the leave as they may agree between

them by means of an agreement in writing

Provided that in the absence of such an agreement, each

parent shall be entitled to nine (9) weeks of leave.

(7)

A worker who is requesting leave in accordance with this

regulation, where there is more than one (1) parent, shall provide proof

to the employer that

(a)

the other parent of the child is not in employment;

or

(b)

there is an agreement in writing between the parents

specifying which part of the leave shall be enjoyed

by each parent

Provided that in the absence of such an agreement, such

worker shall be entitled to nine (9) weeks of leave.

(8)

When a worker is on leave established by this regulation,

the worker shall be deemed to remain in the employment of the

employer and during such absence, he shall be entitled to all rights and

benefits accruing to other workers of the same class or category of

employment at the same place of work, including the right to apply for

promotion opportunities at such place of work.

(9)

During leave established by this regulation, a worker shall

not be entitled to any bonus or allowance related to performance or

production.

(10) Where a worker intends to avail himself of the leave

established by this regulation during his probationary period, such

probationary period shall be suspended from the day of commencement

of the leave and shall resume when the worker returns to work after the

leave.

(11) The worker shall, upon the termination of leave

established by this regulation, be entitled to resume work in the post he

occupied at the commencement of the leave or, where that post is no

longer available, in an analogous post.

(12) Where a worker avails himself of the leave established by

this regulation and provides the employer with an authenticated copy of

the act of birth of the child registered in Malta, as referred to in sub-

regulation (4), but fails to resume work as provided in sub-regulation

(11) or, after having so resumed work, abandons employment without

good and sufficient cause within two (2) calendar months from the

date of such resumption, the worker shall be liable, without prejudice

to any other liability under the Act, to pay the employer a sum

equivalent to the basic wages he received during the leave. Where the

worker works for only part of the said two (2) calendar month period,

such sum shall be reduced proportionately, and the period during

which the worker worked shall be taken into account.

(13) Where a worker avails himself of leave established by

this regulation but does not provide the employer with an

authenticated copy of the act of birth of the child registered in Malta,

as referred to in sub-regulation (4), and fails to resume work as

provided in sub-regulation (11), or after having so resumed work,

abandons his employment without good and sufficient cause within

two (2) calendar months from the date of such resumption, the worker

shall be liable, without prejudice to any other liability under the Act, to

pay the employer a sum equivalent to the basic wages he received

during the leave.

(14) A worker on a fixed-term contract shall, for the duration

of that contract, have the same rights conferred by this regulation but

shall not be liable to pay the employer a sum equivalent to the wages

he received during the leave established by this regulation if his

contract of employment is not extended at the employer’s discretion

for a period of time which is sufficient for him to fulfil the obligations

pursuant to sub-regulations (12) and (13).

(15) Notwithstanding any provision to the contrary in any other

law, regulation, order, collective agreement or contract of service, an

employee shall not be required by the employer to work overtime for a

period of twelve (12) months from the date of the birth of his or her

child

Provided that the right conferred by this regulation shall be

personal to the employee and shall not be transferable.

(16) Without prejudice to and saving the cases which fall

under the provisions of article 36(4) and (14) of the Act, from the date

on which the worker notifies the employer in accordance with sub-

regulation (3) until the end of the leave established by this regulation,

the employer shall not dismiss a worker, even during the probationary

period, by reason of the worker’s intention to avail himself of the

leave, or of actual availing himself of such leave

Provided that in cases where there is good and sufficient

cause to dismiss the worker, the employer shall

(a)

provide duly substantiated grounds for the dismissal

of the worker in writing in a notice of termination;

and

(b)

send a copy of such notice to the Director General

responsible for Employment and Industrial

Relations.

(17) An employee who is dismissed shall, for the purposes of

these regulations, be deemed to have been unfairly dismissed if the

reason, or where more than one, the principal reason, for the dismissal is

that the employee

(a)

refused, or proposed to refuse to comply with a

requirement imposed, or proposed to be imposed, by

the employer in contravention of these regulations; or

(b)

refused, or proposed to refuse, to forgo any right

conferred on the employee by these regulations.

(1)

It shall be the individual right of each parent to be

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

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

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

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

Provided that parental leave shall be paid for a period of

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

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

paid as follows

(a)

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

where the child or children for whose care parental leave was

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

(b)

twenty five per centum (25%) of entitlement will

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

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

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

(c)

twenty five per centum (25%) of entitlement will

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

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

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

Provided further that in the case of parental leave granted

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

established for parents not being foster parents as stipulated in the first

proviso, on condition that payment of allowance will be given as per

parent applying for parental leave and not for each child fostered

Provided further that two (2) months of parental leave

cannot be transferred

Provided further that parental leave shall be availed of in

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

any agreement reached by the employer and employee or collective

agreement.

(2)

In the event that the parental leave was not availed of or

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

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

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

therefor in accordance with sub-regulation (1).

(3)

Every employer shall be bound to keep a record of the

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

worker which may be made even after termination of employment,

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

within two (2) weeks of a written request.

(1)

A worker applying for parental leave from the

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

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

prior to taking such leave.

(2)

Paternal and parental leave, as regulated by regulations

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

the employer with

(a)

the proof of placement in the case of foster carers;

(b)

In the case of adoptive parents

(i)

evidence that the legal proceedings

necessary for the adoption to be completed in accordance

with the law have been initiated, and

(ii)

a written certificate from the competent

authority, designated for this purpose by the Minister

responsible for social policy, certifying that a positive

home study report has been completed; or

(iii) certified evidence that the couple have

legal custody of the child.

(c)

In the case of parents taking leave because of the

legal custody of a child, parental leave shall commence from

the date when the worker provides certified evidence that the

couple have the legal custody of the child; and

(d)

In cases other than those mentioned in paragraphs

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

provides the employer with a birth certificate.

(1)

An employer who receives notice for parental

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

granting of parental leave for justifiable reasons related to the operation

of the place of work.

(2)

For the purposes of this regulation, the term ''justifiable

reasons'' includes

(a)

where the work carried out at the place of business

is of a seasonal nature;

(b)

where a replacement cannot be found within the

notice period given by the worker;

(c)

where the specific employment of the worker who

requests parental leave is of strategic importance to the

undertaking or place of business;

(d)

where the place of business is a small enterprise

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

employer consults with the worker in order to establish

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

way to avoid indefinite postponement of the requested parental

leave;

(e)

where a significant proportion of the workforce

applies for parental leave at the same time

Provided that an employer who decides to postpone the

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

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

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

Provided further that the postponement by the employer

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

right to take the parental leave entitlement before the child reaches

eight (8) years of age at the latest and if such postponement may result

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

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

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

period as may be requested by the worker

Provided further that when considering requests for

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

extent possible, flexible ways of taking parental leave.

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

working days per year, which shall be unpaid

Provided that the worker shall present medical proof that

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

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

illness and is in need of care and support.

(1)

Workers with children up to the age of eight (8)

years, and carers, have the right to request flexible working

arrangements for caring purposes

Provided that flexible working arrangements may be

limited in duration

Provided further that when flexible working

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

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

agreed period where justified on the basis of a change in

circumstances. The employer shall consider and respond to a request

for an early return to the original working pattern, taking into account

the needs of both the employer and the worker.

(2)

In these regulations flexible working arrangements may

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

and flexitime.

(3)

Employers shall consider and respond to requests for

flexible working arrangements within two (2) weeks, providing

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

such arrangements.

(1)

Rights that have been acquired or that are in the

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

under these regulations commences, shall be maintained until the end

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

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

law, collective agreements or practice, shall apply.

(2)

At the end of paternal, parental, and carers’ leave,

workers are entitled to return to their jobs or to equivalent posts on

terms and conditions which are no less favourable to them, and to

benefit from any improvement in working conditions to which they

would have been entitled had they not taken the leave.

Discrimination against workers on the ground that they

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

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

arrangement, shall be prohibited.

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

any worker being the employees’ representative, lodging a complaint

with the employer or initiating legal proceedings against the employer

for the purpose of enforcing compliance with the requirements laid

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

consequences.

(1)

Any dismissal, or preparations for the dismissal of

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

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

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

arrangements, shall be unlawful

Provided that in the case of parental leave notice of

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

during the period of parental leave

Provided further that, a notice of termination given by

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

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

notice is given.

(2)

Workers who consider that they have been dismissed on

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

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

arrangement, may request the employer to provide duly substantiated

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

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

(3)

When a worker establishes, before a competent authority,

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

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

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

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

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

Should a dispute arise between an employer and an

employee regarding the entitlements covered by these regulations or

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

the matter to the Director General of Employment and Industrial

Relations who shall mediate between the parties.

(1)

The Parental Leave Entitlement Regulations are

hereby repealed.

(2)

The revocation of the regulations referred to in sub-

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

done or omitted to be done thereunder.

(3)

These regulations supersede any less favourable relevant

provisions in any regulations, orders or other subsidiary legislation

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

inconsistency between such legislation and these regulations, the latter

shall prevail.

Any person who contravenes or fails to comply with any

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

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

than two thousand euro (€2000).