DIGITAL PLATFORM DELIVERY WAGES COUNCIL WAGE REGULATION ORDER

COUNCIL WAGE REGULATION

SUBSIDIARY LEGISLATION 452.127

DIGITAL PLATFORM DELIVERY WAGES

COUNCIL WAGE REGULATION ORDER

21st January, 2023

LEGAL NOTICE 268 of 2022, as amended by Act XXXIII of 2024.

(1)

The title of this order is the Digital Platform

Delivery Wages Council Wage Regulation Order.

(2)

The scope of this order is to ensure that persons engaged

to provide paid services consisting of the delivery of any consumer

product, gain access to labour and social protection rights by ensuring

the correct determination of their employment status, by promoting

transparency, fairness and accountability in algorithmic management

in respect thereof and by enhancing transparency, traceability and

awareness of developments in relation to said activity.

(1)

In this order, unless the context otherwise

requires

" Act" means the Employment and Industrial Relations

Act;

"algorithmic management" means the use by digital

labour platforms of any automated systems, including

automated monitoring systems and automated decision-making

systems, in any manner whatsoever to match supply and

demand for work, as well as to assign tasks, and monitor,

evaluate and take decisions for the platform workers;

"digital labour platform" means any natural or legal

person providing a commercial service enabling the delivery of

any product and which meets all of the following requirements

(a)

it is provided, at least partially, at a

distance through electronic means, such as a website or a

mobile application;

(b)

it is provided at the request of a recipient of

the service; and

(c)

it involves, as a necessary and essential

component, the organisation of work performed by

persons, including but not limited to food couriers,

through the use of vehicle transportation

Provided that it excludes providers of a service

whose primary purpose is to exploit or share assets but shall be

limited to providers of a service for which the organisation of

COUNCIL WAGE REGULATION

work performed by the person does not only constitute a minor

and purely ancillary component;

"digital platform work" means any work organized

through a digital labour platform and performed in Malta by a

person on the basis of a contractual relationship between the

digital labour platform and the person, or on the basis of a

contractual relationship between the work agency and the person

who is assigned to or placed at the disposal of any digital labour

platform or multiple digital labour platforms by the work

agency, in each case irrespective of whether a contractual

relationship exists between the person and the recipient of the

service;

"employer" shall have the same meaning as that assigned

to it by the Act and includes, for the purpose of this order, digital

labour platforms and work agencies, unless otherwise expressly

provided or the context otherwise requires;

"General Data Protection Regulation" means Regulation

(EU) 2016/679 of the European Parliament and of the Council of

27 April 2016 on the protection of natural persons with regard to

the processing of personal data and on the free movement of

such data, and repealing Directive 95/46/EC as implemented by

the Data Protection Act;

"micro, small or medium-sized enterprises" means micro,

small and medium-sized enterprises as defined in the Annex to

Commission Recommendation 2003/361/EC of 6 May 2003

concerning the definition of micro, small and medium-sized

enterprises;

"official representative" means any lawyer representing a

person performing digital platform work, a trade union

representative, or any information and consultation

representative appointed in accordance with the Employee

(Information and Consultation) Regulations;

"on a regular or on an irregular basis" means, in terms of

hours of work, whether often and, or in a consistent manner or

not often and, or in an inconsistent manner;

"person performing digital platform work" means any

person performing digital platform work, irrespective of the

contractual designation of the relationship between that person

and the digital labour platform or the work agency by the parties

involved;

"platform worker" means

(a)

any person performing digital platform

COUNCIL WAGE REGULATION

work and who has entered into a contract of employment

or an employment relationship or any other form of

arrangement irrespective of the contractual designation

with any digital labour platform or multiple digital

labour platforms and who is engaged, whether on a

regular or on an irregular basis, to provide services

consisting of the delivery of any product; and

(b)

any person performing digital platform

work and who has entered into a contract of employment

or an employment relationship or any other form of

arrangement irrespective of the contractual designation

with a work agency and who is assigned to, or placed at

the disposal of, whether on a regular or on an irregular

basis, any digital labour platform or multiple digital

labour platforms to provide services consisting in the

delivery of any product;

"time-and-a-half" and "double-time" mean respectively

one and a half times and twice the actual time rate applicable to

the platform worker;

"work agency" means any natural or legal person who

enters into contracts of employment, employment relationships

or any other form of arrangement irrespective of the contractual

designation, with platform workers and who assigns them to, or

places them at the disposal of, whether on a regular or on an

irregular basis, any digital labour platform or multiple digital

labour platforms, to provide services consisting in the delivery

of any product, whether the said activity is the main activity or

an ancillary activity of the work agency or otherwise

(2)

Without prejudice to the provisions of sub-article (1),

terms and expressions used in this order shall, unless the context

otherwise requires, and which are not defined herein, have the

meaning assigned to them in the Act.

(1)

This order applies to

(a)

persons who have entered into a contract of

employment or an employment relationship, whether on an

indefinite, whole-time, part-time or a fixed term basis, or any

other form of arrangement irrespective of the contractual

designation, with a work agency, and who are assigned to or

placed at the disposal of, whether on a regular or on an irregular

basis, a digital labour platform or multiple digital labour

platforms, whether concurrently or successively, to provide

services consisting of the delivery of any product;

(b)

persons who have entered into a contract of

employment or an employment relationship, whether on an

COUNCIL WAGE REGULATION

indefinite, whole-time, part-time or a fixed term basis, or any

other form of arrangement irrespective of the contractual

designation, with any digital labour platform or multiple digital

labour platforms, who are engaged, whether on a regular or on

an irregular basis, to provide services consisting of the delivery

of any product;

(c)

persons who have entered into a contractual

relationship which is declared as on self-employed basis with a

digital labour platform or a work agency that controls directly or

indirectly the performance of work and who are, by virtue of

article 4(1), presumed to be in an employment relationship;

(d)

public and private undertakings engaged in

economic activities, if they are operating for gain or otherwise,

which are work agencies or which perform the same functions as

work agencies, whether as a main or as an ancillary function or

which are digital labour platforms.

(1)

When considering the employment status of a

person performing digital platform work, it shall be presumed that there

is an employment relationship and that the digital labour platform for

whom the platform work is provided, or the work agency who assigns

such person to or places him at the disposal of any digital labour

platform, as the case may be, is the employer and that the provisions of

the Act and of the regulations or orders issued thereunder apply to that

relationship.

(2)

Any declaration made by any person in relation to his

own or to another person’s employment status shall be considered to be

null and void if its consequences are in any way in conflict with the

provisions of this order.

(3)

Where the digital labour platform or the work agency, as

the case may be, claims that the contractual relationship with the

person performing digital platform work is not an employment

relationship in accordance with sub-article (1), the burden of proof

shall be on the digital labour platform or the work agency, as the case

may be, when declaring that there is no such employment relationship

by proving that it does not control directly or indirectly the

performance of the digital platform work because it does not fulfil at

least four (4) of the following criteria in relation to the person

performing the platform work

(a)

the effective determination of, or stipulating the

maximum limits for the level of remuneration;

(b)

the requirement that the person performing digital

platform work respects specific binding rules with regard to

appearance and conduct towards the recipient of the service or

COUNCIL WAGE REGULATION

performance of the work;

(c)

the supervision of the performance of the work or

the verification of the quality of the results of the work,

including by electronic means;

(d)

the effective restriction of the freedom, including

through sanctions, to organise one’s work, in particular the

discretion to choose one’s working hours or periods of absence,

to accept or to refuse tasks or to use sub-contractors or

substitutes;

(e)

the effective restriction of the possibility to build

a client base or to perform work for any third party

Provided that, any proceedings relating to such claim

shall not have a suspensive effect on the application of the legal

presumption.

(4)

Where the person performing digital platform work

claims that the contractual relationship with the digital labour platform

or the work agency, as the case may be, is not an employment

relationship in accordance with sub-article (1), the digital labour

platform or the work agency, as the case may be, shall be required to

assist the proper resolution of the proceedings, primarily by providing

all relevant information held by it. The determination of the existence

or otherwise of such an employment relationship shall be established

by the person performing digital platform work by the application of

the criteria mentioned in sub-article (3)

Provided that, any such proceedings relating to such

claim shall not have a suspensive effect on the application of the legal

presumption.

(5)

Any claims made either by the digital labour platform, or

the work agency, as the case may be, or by the person performing

digital platform work in accordance with sub-articles (3) and (4)

respectively shall be made to the Director General responsible for

Employment and Industrial Relations who shall proceed to investigate

such claims and, based on the verification of the facts, establish

whether an employment relationship exists or otherwise, whereupon

the legal presumption shall apply or otherwise. This shall be without

prejudice to the authority of the Director General responsible for

Employment and Industrial Relations to enforce the provisions of sub-

article (1) independently of any claim lodged by the digital labour

platform, or the work agency, as the case may be, or by the person

performing digital platform work.

(6)

Notwithstanding any provision in any law or in any

collective agreement or individual contract, if a person performing

platform work had been performing digital platform work on a self-

COUNCIL WAGE REGULATION

employed basis with any person prior to the date of entry into force of

this order, and whose relationship by virtue of article 4(1) is deemed to

be an employment relationship, any penalty clause laid down in the

previous contract for service in relation to events occurring before the

coming into force of this order, shall on the entry into force of this

order, be null and void unless and until it is authorized by the Director

General responsible for Employment and Industrial Relations in

accordance with the provisions of the Act

Provided that this does not in any way waive any right to

institute civil procedures for damages which may be available to either

party to the contract for service.

(1)

A person who was considered to be performing

services as a self-employed person for another person, whether prior to,

or at any time following the date of the entry into force of this order,

and is subsequently found to be an employee in accordance with article

4 shall be considered to have been engaged as an employee of the

relevant digital labour platform for whom he was providing digital

platform work or the work agency, as the case may be.

(2)

The date of engagement referred to in sub-article (1) shall

be considered to be the date of the entry into force of this order

Provided that for the purpose of this sub-article, the

probationary period shall be considered to have commenced on the date

of the initial continuous provision of services by the platform worker

with the relevant digital labour platform or work agency, as the case

may be, and the seniority and any notice due in case of any eventual

redundancy shall also be computed accordingly

Provided further that for the purpose of this sub-article

the term "continuous provision of services" shall include those

contracts, whether on a self-employed or employment basis, when the

work performed was essentially the same and where the period between

a contract and another does not exceed a period of six (6) months and

the periods in between shall be taken into account.

(3)

The employment referred to in sub-articles (1) and (2)

shall be deemed to be indefinite and whole-time on the same basis as

the hours of work of a comparable whole-time employee or, in the

absence of a comparable whole-time employee, on a forty-hour (40)

normal working week, unless in relation to the duration and hours of

work, it is not specified otherwise in writing in accordance with article

(1)

Skont dan l-ordni il-prinċipal għandu jkun

obbligat li jagħti lill-ħaddiema tal-pjattaforma, fir-rigward tas-sigħat

kollha tax-xogħol

(a)

fir-rigward ta’ pagi

(i)

l-istess pagi mħallsa lil impjegat

komparabbli impjegat mal-istess prinċipal, li fl-ebda każ

ma għandhom ikunu inqas mill-paga nazzjonali

applikabbli jew,

(ii)

meta ma jkun hemm l-ebda impjegat

komparabbli bħal dan, paga ma għandhiex tkun inqas

mill-inqas paga nazzjonali applikabbli

Iżda jekk ikun hemm nuqqas ta’ qbil fir-rigward

tal-paga li trid tiġi mħallsa u l-ħaddiem tal-pjattaforma jtemm l-

impjieg tiegħu, id-dispożizzjonijiet imsemmija fl-artikolu 15(2)

għandhom japplikaw;

(b)

fir-rigward ta’ kondizzjonijiet oħra ta’ impjieg, l-

istess kondizzjonijiet ta’ impjieg, inklużi iżda mhux limitati

għal bonuses statutorji, supplement tad-dħul u żidiet ġenerali

fil-pagi mogħtija mill-Gvern lill-impjegati kollha, bħal dawk li

jgawdu impjegati komparabbli, li fl-ebda każ ma għandhom

ikunu inqas mill-kondizzjonijiet minimi ta’ impjieg skont l-Att

u r-regolamenti jew ordnijiet magħmula taħtu jew, meta ma

jkunx hemm impjegat komparabbli bħal dan, għall-

GĦALL-KONSENJA

kundizzjonijiet minimi ta’ impjieg applikabbli skont l-Att u r-

regolamenti jew ordnijiet magħmula taħtu, sakemm ma jkunx

speċifikament imsemmi mod ieħor f’dan l-ordni;

(ċ)

il-kondizzjonijiet tal-impjieg u intitolamenti oħra

msemmija f’dan l-ordni.

(2)

F’każ li jkun speċifikat bil-miktub skont l-artikolu 15 fir-

rigward ta’ sigħat tax-xogħol li l-ħaddiem tal-pjattaforma għandu jkun

meħtieġ jaħdem inqas minn ġimgħa tax-xogħol normali ta’ erbgħin

(40) siegħa, il-ħaddiem tal-pjattaforma għandu f’dan il-każ ikun

intitolat għall-kondizzjonijiet ta’ impjieg, inkluż il-kondizzjonijiet

imsemmija f’dan l-ordni, fuq bażi pro rata.

(3)

Matul is-sigħat tax-xogħol tagħhom, il-ħaddiema tal-

pjattaforma ma għandhomx ikollhom id-dritt li jirrifjutaw milli jwettqu

l-konsenji ta’ kwalunkwe prodott kif raġonevolment assenjati lilhom,

sakemm ma hemmx bażi oġġettiva.

(1)

Il-prinċipal għandu jkun responsabbli sabiex

jipprovdi, għas-spejjeż tiegħu, vetturi xierqa li huma mgħammra kif

suppost u miżmuma f’kondizzjoni tajba u lesti sabiex jintużaw mill-

ħaddiema tal-pjattaforma sabiex jipprovdu x-xogħol fuq pjattaforma.

Tali vetturi jistgħu jinkludu motorcycles elettriċi, motorbikes elettriċi u

roti elettriċi, iżda għandhom jeskludu kick scooters elettriċi jew

kwalunkwe kick scooters oħra.

(2)

L-ispejjeż kollha assoċjati mal-użu tal-vetturi kif

imsemmi fis-subartikolu (1) inkluża l-assigurazzjoni, il-miżati tal-

liċenzji u l-karburant għandhom ikunu r-responsabbiltà tal-prinċipal.

(3)

Il-prinċipal għandu jkun ukoll responsabbli sabiex

jipprovdi għas-spejjeż tiegħu, lill-ħaddiema tal-pjattaforma it-tagħmir,

il-materjal u l-għodod kollha li l-ħaddiema tal-pjattaforma jistgħu

jeħtieġu fir-rigward tal-forniment tax-xogħol fuq pjattaforma, kif ukoll

kwalunkwe uniformi jew oġġetti ta’ lbies ieħor, inkluż elmi tas-

sikurezza, li l-ħaddiema tal-pjattaforma jistgħu jkunu meħtieġa jilbsu,

fir-rigward tal-forniment tax-xogħol fuq pjattaforma. L-ebda ħaddiem

tal-pjattaforma ma għandu jkun meħtieġ iħallas kwalunkwe miżata,

depożitu jew xi ħaġa simili fir-rigward tal-forniment tal-imsemmija

tagħmir, materjal, għodda, uniformijiet jew kwalunkwe oġġetti oħra ta’

lbies.

(4)

Il-ħaddiema

tal-pjattaforma

għandhom

ikunu

responsabbli għas-salvagwardja tal-vetturi u tat-tagħmir ipprovdut

lilhom mill-prinċipal tagħhom fir-rigward tax-xogħol fuq pjattaforma

kif imsemmi fis-subartikoli (1) u (3).

(5)

Il-prinċipal għandu jkun responsabbli wkoll sabiex

jipprovdi, għas-spejjeż tiegħu, lill-ħaddiema tal-pjattaforma, telefon

ċellulari u servizzi tal-internet għall-użu mill-ħaddiema tal-pjattaforma

GĦALL-KONSENJA

għall-finijiet ta’ dmirijiethom, sakemm ma jkunx miftiehem mod ieħor

mill-prinċipal u l-ħaddiem tal-pjattaforma rispettiv li l-prinċipal

għandu jkopri, jew jagħti allowance adegwata sabiex tkopri, l-ispejjeż

inkorsi minn u imposti f’isem il-ħaddiem tal-pjattaforma għall-użu ta’

servizzi tat-telefonija mobbli, kemm jekk permezz ta’ messaġġi jew

telefonati, l-ispejjeż tat-telefon ċellulari u tas-servizzi tal-internet,

użati mill-ħaddiem tal-pjattaforma għall-fini ta’ dmirijietu.

Ir-rati ta’ sahra għandhom ikunu pagabbli lill-ħaddiema

whole-time kollha tal-pjattaforma kif ġej

(a)

għall-ħin kollu li jinħadem ’il fuq minn erbgħin

(40) siegħa f’xi ġimgħa...........................................ħin-u-nofs;

(b)

għall-ħin kollu li jinħadem fi kwalunkwe ġurnata

ta’ mistrieħ stabbilita minn qabel..........................ħin doppju.

(1)

Il-ħaddiema kollha tal-pjattaforma whole-time

għandhom f’kull sena kalendarja jedd għal-leave għall-mard, għal

mill-inqas l-ekwivalenti ta’ ġimagħtejn tax-xogħol b’paga sħiha, anqas

mill-ammont ekwivalenti stabbilit bħala dritt tal-benefiċċju għall-mard

bir-rata stabbilita taħt l-Att dwar is-Sigurtà Soċjali, u l-ħaddiema tal-

pjattaforma part-time għandu jkollhom dritt pro rata għal-leave għall-

mard kalkulat bis-sigħat b’paga sħiħa, anqas mill-ammont ekwivalenti

stabbilit bħala dritt tal-benefiċċju għall-mard bir-rata stabbilita taħt l-

Att dwar is-Sigurtà Soċjali, u liema ammont għandu wkoll jiġi kalkulat

fuq bażi pro rata

Iżda

(a)

l-ewwel tlett (3) ijiem ta’ kull talba għal-leave tal-

mard għandhom b’mod sħiħ jitħallsu mill-prinċipal;

(b)

ċertifikat mediku li jkopri l-perjodu ta’ assenza

għandu jiġi ppreżentat lill-prinċipal fil-ġurnata tar-ritorn lura

għax-xogħol jew, jekk l-imsemmi perjodu ta’ assenza jaqbeż

sebat (7) ijiem, fi żmien sebat (7) ijiem mill-bidu tal-assenza

minħabba f’leave għall-mard.

(2)

Meta ħaddiem tal-pjattaforma whole-time ikun fl-

impjieg għall-perjodu li jkun anqas minn sena, il-ħaddiem tal-

pjattaforma jkun intitolat għal-leave għall-mard bi ħlas kif ikun

proporzjonat man-numru ta’ xhur fl-impjieg.

(3)

Il-prinċipal għandu jkollu d-dritt li jitlob ċertifikat

mediku maħruġ mit-tabib li jibgħat hu sabiex jiċċertifika l-inkapaċità

għax-xogħol tul il-perjodu ta’ assenza.

(4)

Id-dritt ta’ leave għall-mard mogħti skont dan l-artikolu

għandu jiġi kkalkolat fuq il-bażi provduta għal leave annwali kif

speċifikat fir-regolament 8(1) tar-Regolamenti dwar l-Organizzazzjoni

GĦALL-KONSENJA

tal-Ħin tax-Xogħol.

(1)

Kwalunkwe ħaddiem tal-pjattaforma għandu mal-

impjieg, jedd li jingħata mill-prinċipal

(a)

ġurnata (1) tax-xogħol leave għal-luttu;

(b)

jumejn (2) tax-xogħol leave għal żwieġ;

(ċ)

sa sena waħda (1) leave għal korriment;

(d)

leave għal servizz bħala ġurat għal kemm żmien

ikun hemm bżonn;

(e)

leave għal kwarantina għal kwalunkwe perjodu ta’

kwarantina kif jista’ jiġi determinat mis-Suprintendent tas-

Saħħa Pubblika jew minn kwalunkwe awtorità pubblika oħra.

(2)

Il-prinċipal għandu l-jedd li jitlob dokumentazzjoni mill-

ħaddiem tal-pjattaforma

(a)

li tindika meta l-eventwalitajiet imsemmija fil-

paragrafi (b) u (d) fis-subartikolu preċedenti jkunu skedati li

jseħħu;

(b)

tindika l-eventwalità msemmija fil-paragrafu (ċ)

fis-subartikolu preċedenti tkun fil-fatt seħħet;

(ċ)

mar-ritorn

għax-xogħol,

tindika

illi

l-

eventwalitajiet imsemmija fil-paragrafi (a), (b), (d) u (e) fis-

subartikolu preċedenti fil-fatt seħħew.

(3)

L-intitolament għal-leave għal luttu u leave għal żwieġ

għandhom jittieħdu fil-ġurnata tax-xogħol sussegwenti għall-

eventwalità rilevanti, sakemm ma jkunx mitlub mod ieħor mill-

ħaddiem tal-pjattaforma, li jista’ jitlob posponiment sa ġimagħtejn (2)

wara l-eventwalità f’każ ta’ ċirkostanzi konvinċenti konnessi mal-

istess eventwalità. F’dawn il-każijiet il-prinċipal għandu jagħti lill-

ħaddiem tal-pjattaforma il-posponiment kif rikjest.

Minkejja kwalunkwe dispożizzjonijiet oħra fi kwalunkwe

liġi, meta ħaddiem tal-pjattaforma jaħdem waqt festa nazzjonali jew

waqt btala pubblika oħra skont id-dispożizzjonijiet tal-Att dwar il-Festi

Nazzjonali u Btajjel Pubbliċi oħra, il-paga għal tali xogħol għandha

titħallas bir-rata normali

Iżda l-ħaddiem tal-pjattaforma għandu jkollu f’dan il-każ

numru addizzjonali ta’ sigħat maħduma b’dan il-mod mil-leave għall-

vaganzi matul is-sena kalendarja li fiha taħbat dik il-festa nazzjonali

jew btala pubblika oħra.

Minkejja kwalunkwe dispożizzjoni oħra ta’ dan l-ordni,

GĦALL-KONSENJA

il-kondizzjonijiet bażiċi tax-xogħol u tal-impjieg tal-ħaddiema tal-

pjattaforma ingaġġati minn aġenzija tax-xogħol għandhom ikunu,

għat-tul ta’ żmien li fih ikunu assenjati jew imqiegħda għad-

dispożizzjoni ta’ kwalunkwe pjattaforma tax-xogħol diġitali jew

diversi pjattaformi tax-xogħol diġitali sabiex jipprovdu servizzi li

jikkonsistu fil-konsenja ta’ kwalunkwe prodott, tal-inqas dawk li jkunu

japplikaw kieku kienu reklutati direttament mal-pjattaforma diġitali

tax-xogħol jew diversi pjattaformi diġitali tax-xogħol, skont il-każ,

sabiex jokkupaw l-istess impjieg, bis-saħħa tal-Att, jew ta’ kwalunkwe

regolament magħmul taħtu jew taħt xi leġislazzjoni oħra jew bis-saħħa

ta’ xi ftehim kollettiv applikabbli

Iżda d-dispożizzjonijiet tal-artikoli 6 sa 11 ma

għandhomx ikollhom effett fir-rigward ta’ perjodi li fihom l-ħaddiema

tal-pjattaforma ma jkunux assenjati jew imqiegħda għad-dispożizzjoni

ta’ kwalunkwe pjattaforma tax-xogħol diġitali sabiex jipprovdu

servizzi li jikkonsistu fil-konsenja ta’ kwalunkwe prodott fejn tali

perjodi ma jkunux iqsar minn ġimagħtejn. Sabiex jiġi evitat

kwalunkwe dubju, tul tali perjodi meta l-ħaddiem tal-pjattaforma ma

jkunx qiegħed jiġi assenjat jew imqiegħed għad-dispożizzjoni ta’

kwalunkwe pjattaforma tax-xogħol diġitali, il-ħaddiem tal-pjattaforma

għandu jkun xorta waħda intitolat għall-kondizzjonijiet tax-xogħol u

tal-impjieg stabbiliti mill-Att, mir-regolamenti jew l-ordnijiet

magħmula taħtu għall-impjegati kollha, bħal dawk li jgawdi impjegat

komparabbli bħal dan, li fl-ebda każ ma għandu jkun inqas mill-

kondizzjonijiet ta’ impjieg minimi skont l-Att u r-regolamenti jew

ordnijiet magħmula taħtu jew, fejn ma jkun hemm l-ebda impjegat

komparabbli bħal dan, għall-kundizzjonijiet minimi applikabbli tal-

impjieg skont l-Att u r-regolamenti jew l-ordnijiet magħmula taħtu

Iżda wkoll f’każ li l-ħaddiem tal-pjattaforma jiġi

sussegwentement sostitwit mill-aġenzija tax-xogħol, il-ħaddiem tal-

pjattaforma assenjat bħala sostitut għandu jkollu dritt għal trattament

ugwali mill-ewwel ġurnata li jkun hekk assenjat.

Bla

ħsara

għall-obbligi

ġenerali

skont

id-

dispożizzjonijiet tal-Att dwar is-Saħħa u s-Sigurtà fuq ix-Xogħol u ta’

kwalunkwe regolamenti magħmula taħtu, il-prinċipal għandu jkun

responsabbli sabiex jiżgura li jkun hemm ambjent tax-xogħol sikur

għall-ħaddiema tal-pjattaforma billi jiżgura li r-riski marbuta mad-

dmirijiet tal-ħaddiema tal-pjattaforma jkunu identifikati u li jittieħdu

miżuri sabiex kemm jista’ jkun jiġu evitati tali riskji.

(1)

L-ebda pagamenti jew drittijiet ma għandhom

jintalbu jew jiġu meħuda minn xi ħaddiem tal-pjattaforma permezz ta’

tnaqqis mill-pagi mill-prinċipal tiegħu bħala konsiderazzjoni għar-

reklutaġġ minn aġenzija tax-xogħol jew kwalunkwe pjattaforma tax-

xogħol diġitali jew b’kunsiderazzjoni għall-konklużjoni ta’ kuntratt ta’

impjieg ma’ aġenzija tax-xogħol jew kwalunkwe pjattaforma ta’

xogħol diġitali.

GĦALL-KONSENJA

(2)

Ma għandu jsir l-ebda tnaqqis mill-pagi ta’ ħaddiem tal-

pjattaforma minn aġenzija tax-xogħol jew pjattaforma tax-xogħol

diġitali kemm b’konsiderazzjoni taċ-ċirkostanzi msemmija fis-

subartikolu (1) jew b’konsiderazzjoni ta’ ċirkostanzi oħra, ħlief u sa

fejn tali tnaqqis mill-pagi ikun permissibbli skont l-Att u r-regolamenti

magħmula taħtu.

(4)

For the avoidance of any doubt, for the purposes of this

order, any employment relationship arising after the entry into force of

this order may be entered into for an indefinite or a definite period and,

or either on a whole-time or part-time basis

COUNCIL WAGE REGULATION

Provided that no whole-time employment shall be

entered into where the platform worker is already in whole-time

employment with another employer.

6. (1)

In accordance with this order, the employer shall

be obliged to grant platform workers, in respect of all hours of work

(a)

with respect to wages

(i)

the same wages paid to a comparable

employee employed by the same employer, which in no

event shall be less than the applicable national minimum

wage; or

(ii)

when there is no such comparable

employee, the pay shall not be less than the applicable

national minimum wage

Provided that if there is disagreement as to the payable

wage and the platform worker terminates his employment, the

provisions laid down in article 15(2) shall apply;

(b)

with respect to other conditions of employment,

the same conditions of employment, including but not limited

to statutory bonuses, income supplements and general increase

in wages granted by the Government to all employees, as those

enjoyed by a comparable employee, which in no event shall be

less than the minimum conditions of employment in accordance

with the Act and the regulations or orders made thereunder or,

where there is no such comparable employee, to the applicable

minimum conditions of employment in accordance with the Act

and the regulations or orders made thereunder, unless otherwise

specifically referred to in this order;

(c)

the conditions of employment

and

other

entitlements referred to in this order.

(2)

In the case that it is specified in writing in accordance

with article 15 in relation to the hours of work that the platform worker

shall be required to work less than the forty-hour (40) normal working

week, the platform worker shall in such event be entitled to the

conditions of employment, including the conditions provided for in

this order, on a pro rata basis.

(3)

During their hours of work, platform workers shall not be

entitled to refuse to perform delivery of any product as reasonably

assigned to them, unless there is an objective ground.

7. (1)

The employer shall be responsible to provide, at

his expense, appropriate vehicles that are properly equipped and

maintained in good running order for use by the platform workers to

COUNCIL WAGE REGULATION

provide the platform work. Said vehicles may include electric

motorcycles, electric motorbikes and electric bicycles, but shall

exclude electric or any other kick scooters.

(2)

All costs associated with the use of the vehicles as

provided in sub-article (1) including insurance, licence fees and fuel

shall be the responsibility of the employer.

(3)

The employer shall further be responsible to provide at

his expense, to the platform workers all equipment, material and tools

that the platform workers may require in relation to the provision of the

platform work, as well as any uniforms and any other wearing apparel,

including safety helmets, that the platform workers may be required to

wear, in relation to the provision of the platform work. No platform

worker shall be required to pay any fee, deposit or anything similar in

relation to the provision of the said equipment, material, tools,

uniforms or any other wearing apparel.

(4)

The platform workers shall be responsible for the

safekeeping of the vehicles and equipment provided to them by their

employer in relation to the platform work as referred to in sub-articles

(1) and (3).

(5)

The employer shall also be responsible to provide, at his

expense, to the platform workers a mobile phone and internet services

for use by the platform workers for the purpose of their duties, unless it

is otherwise agreed by the employer and the respective platform worker

that the employer should cover, or grant an adequate allowance to

cover, the costs incurred by and charged in the name of the platform

worker for the use of mobile telephony services, whether through

messages or calls, the cost of the mobile phone and internet services,

used by the platform worker for the purpose of his duties.

8. Overtime rates shall be payable to all whole-time

platform workers as follows

(a)

for all time worked in excess of forty (40) hours in

any one week...............................time-and-a-half;

(b)

for all time worked on any pre-determined day of

rest................................................double time.

9. (1)

Whole-time platform workers shall in every

calendar year be entitled to sick leave, of at least the equivalent of two

(2) working weeks on full pay, less an amount equal to the sum set for

sickness benefit entitlement at the rate established under the Social

Security Act, and part-time platform workers shall have a pro rata

entitlement to sick leave in hours on full pay, less an amount equal to

the sum set for sickness benefit entitlement at the rate established under

the Social Security Act, which amount is also to be calculated on a pro

COUNCIL WAGE REGULATION

rata basis

Provided that

(a)

the first three (3) days of any claim for sick leave

shall be paid in full by the employer;

(b)

a medical certificate covering the period of

absence shall be provided to the employer on the day of return

to work or, if said period of absence is longer than seven (7)

days, within seven (7) days of the onset of sick leave absence.

(2)

Whole-time platform workers employed for less than one

year shall be entitled to paid sick leave in proportion to the number of

months in employment.

(3)

The employer shall have the right to request a medical

certificate by a physician sent by him to certify incapacity for work

during the period of absence.

(4)

The sick leave entitlement granted in accordance with

this article shall be calculated on the basis provided for annual leave as

specified in regulation 8(1) of the Organisation of Working Time

Regulations.

10. (1)

Every platform worker shall on employment, be

entitled to be granted by his employer

(a)

one (1) working day of bereavement leave;

(b)

two (2) working days marriage leave;

(c)

up to one (1) year of injury leave;

(d)

jury service leave for as long as necessary;

(e)

quarantine leave for any period of quarantine as

may be determined by the Superintendent of Public Health or

by any other public authority.

(2)

An employer shall have

the

right

to

request

documentation from a platform worker

(a)

indicating when the events referred to in

paragraphs (b) and (d) in the previous sub-article are scheduled

to occur;

(b)

indicating that the event referred to in paragraph

(c) in the previous sub-article has actually occurred; and

(c)

on return to work, indicating that the events

referred to in paragraphs (a), (b), (d) and (e) in the previous

COUNCIL WAGE REGULATION

sub-article have actually taken place.

(3)

The entitlement to bereavement leave and marriage leave

shall be availed of on the next working day after the occurrence of the

relevant event, unless otherwise requested by the platform worker, who

may request a postponement of up to two weeks after the event in

compelling circumstances linked to the same event. In such cases the

employer shall grant the platform worker the postponement as

requested.

11. Notwithstanding any provisions of any other legislation,

when a platform worker provides work on a national holiday or any

other public holiday in accordance with the National Holidays and

Other Public Holidays Act, the remuneration for such work shall be at

the normal rate

Provided that the platform worker shall in such event be

entitled to an additional number of hours so worked of vacation leave

during that same calendar year in respect of each such national or other

public holiday.

12. Notwithstanding any other provision of this order, the

basic working and employment conditions of platform workers

engaged by a work agency shall, for the duration of the time in which

the platform workers are assigned to or placed at the disposal of any

one or multiple digital labour platforms to provide services consisting

of the delivery of any product, be at least those that would apply if they

had been recruited directly by the digital labour platform or multiple

digital labour platforms, as the case may be, to occupy the same job, by

virtue of the Act, or any regulations issued thereunder or under any

other legislation or by virtue of any applicable collective agreement

Provided that the provisions of articles 6 to 11 shall not

have effect in relation to periods in which platform workers are not

assigned to, or placed at the disposal of any digital labour platform to

provide services consisting of the delivery of any product where such

periods are not less than two weeks. For the avoidance of any doubt,

during said periods where the platform worker shall not be so assigned

to, or placed at the disposal of any digital labour platform, the platform

worker shall still be entitled to the working and employment conditions

granted by the Act, regulations or orders issued thereunder to all

employees, as those enjoyed by a comparable employee, which in no

event shall be less than the minimum conditions of employment in

accordance with the Act and the regulations or orders made thereunder

or, where there is no such comparable employee, to the applicable

minimum conditions of employment in accordance with the Act and the

regulations or orders made thereunder

Provided further that if a platform worker is subsequently

replaced by the work agency, the platform worker assigned as a

COUNCIL WAGE REGULATION

replacement shall have equal treatment from the first day of

assignment.

13. Without prejudice to the general obligations in terms of

the Health and Safety at Work Act and any regulations issued

thereunder, the employer shall be responsible to ensure that a safe

working environment is provided for platform workers by ensuring

that risks relating to the platform workers’ duties are identified and

measures are taken for such risks to be avoided as much as possible.

14. (1)

No payments or charges shall be demanded or

levied through a deduction from wages from any platform worker by

his employer in consideration for recruitment by a work agency or any

digital labour platform or in consideration for concluding a contract of

employment with a work agency or any digital labour platform.

(2)

No deduction shall be made from the wages of a platform

worker by a work agency or digital labour platform whether in

consideration of the circumstances mentioned in sub-article (1) or in

consideration of other circumstances, except and in so far as such

deductions from wages are permissible under the Act and the

regulations made thereunder.

15. (1)

In situations where the employment status of a

person is deemed to be one of employment in accordance with this

order, the employer shall be bound to give or send to the platform

worker a letter of engagement or a signed declaration, which shall

include the information listed in the Transparent and Predictable

Working Conditions Regulations, within seven (7) calendar days from

the date of coming into force of this order

Provided that, after the coming into force of this order

the said information shall, in any case, be provided within seven (7)

calendar days from the commencement of the employment

relationship.

(2)

If a platform worker does not agree with

(a)

any of the conditions of employment listed in a

letter of engagement or a signed declaration in accordance with

this article; or

(b)

the amount of wages being proposed to be given

as specified in paragraph (a) of article 6,

and leaves employment, he may institute proceedings before the

Tribunal where he may claim unfair dismissal and the relevant

provisions of the Act shall apply.

COUNCIL WAGE REGULATION

It shall be the duty of the employer to provide to the

platform worker the reasons for any difference in treatment if he

considers that his employer may have treated him in a manner which

infringes a right conferred on him by this order, and if he requests such

information. The said reasons are to be provided in writing within

twenty-one (21) days from the date of the request and shall be

admissible as evidence in any proceedings in accordance with this

order.

(1)

Without prejudice to the rights and obligations of

the employers and platform workers under the Transparent and

Predictable Working Conditions Regulations, those employers to whom

this order is applicable shall inform platform workers of the following

(a)

automated monitoring systems which are used to

monitor, supervise or evaluate the work performance of platform

workers through electronic means; and

(b)

automated decision-making systems which are

used to take or support decisions that significantly affect the

platform workers’ working conditions, in particular their access

to work assignments, their earnings, their occupational safety

and health, their working time, their promotion and the status

relating to their employment, including the restriction,

suspension or termination of their digital account.

(2)

The information referred to in sub-article (1) shall

concern

(a)

as regards automated monitoring systems

(i)

the fact that such systems are in use or are

in the process of being introduced;

(ii)

the categories of actions monitored,

supervised or evaluated by such systems, including

evaluation by the recipient of the service;

(b)

as regards automated decision-making systems

(i)

the fact that such systems are in use or are

in the process of being introduced;

(ii)

the categories of decisions that are taken or

supported by such systems;

(iii) the main parameters that such systems take

into account and the relative importance of those main

parameters in the automated decision-making, including

the way in which the platform worker’s personal data or

behaviour influence the decisions; and

COUNCIL WAGE REGULATION

(iv) the grounds for decisions to restrict,

suspend or terminate the platform worker’s account or

any decision with similar effects.

(3)

Employers shall provide the information referred to in

sub-article (2) in the form of a document which may be in electronic

format, at the latest on the first working day, as well as in the event of

substantial changes and at any time upon the platform workers’

request. The information shall be presented in a concise, transparent,

intelligible and easily accessible form, using clear and plain language.

(4)

Employers shall make the information referred to in sub-

article (2) available to platform workers’ official representatives and

the Director General responsible for Employment and Industrial

Relations upon their respective request.

(5)

Employers shall not process any personal data

concerning platform workers that are not intrinsically connected to and

strictly necessary for the performance of their work. In particular, they

shall not

(a)

process any personal data on the emotional or

psychological state of the platform worker;

(b)

process any personal data relating to the health of

the platform worker, except in cases referred to in Article 9(2),

in points (b) to (j) of the General Data Protection Regulation;

(c)

process any personal data in relation to private

conversations, including exchanges with platform workers’

official representatives;

(d)

collect any personal data while the platform

worker is not offering or performing platform work.

(1)

Employers shall regularly monitor and evaluate

the impact of individual decisions taken or supported by automated

monitoring and decision-making systems, as referred to in article

17(1), on working conditions.

(2)

Employers shall, in accordance with the provisions of the

Health and Safety at Work Act and any regulations issued thereunder

(a)

evaluate the risks of automated monitoring and

decision-making systems for the safety and health of platform

workers, in particular as regards possible risks of work-related

accidents, psychosocial and ergonomic risks;

(b)

assess whether the safeguards of those systems are

appropriate for the risks identified in view of the specific

characteristics of the work environment; and

COUNCIL WAGE REGULATION

(c)

introduce appropriate preventive and protective

measures.

(3)

Employers shall not use automated monitoring and

decision-making systems in any manner that puts undue pressure on

platform workers or otherwise puts at risk the physical and mental

health of platform workers.

(4)

Employers shall ensure sufficient human resources for

monitoring the impact of individual decisions taken or supported by

automated monitoring and decision-making systems in accordance with

this sub-article.

(5)

The persons charged by the employer with the function of

monitoring shall have the necessary competence, training and authority

to exercise that function. The said persons shall not be dismissed, be

subject to any disciplinary measures or otherwise made to suffer any

other adverse treatment for overriding automated decisions or

suggestions for decisions.

(1)

Platform workers shall have the right to obtain an

explanation from the employer for any decision taken or supported by

an automated decision-making system that significantly affects the

platform worker’s working conditions, as referred to in article 17

(1)(b).

(2)

Without prejudice to the provisions of sub-article (1), the

employer shall provide platform workers with access to a contact

person designated by the employer to discuss and to clarify the facts,

circumstances and reasons having led to the decision. The employer

shall ensure that such contact persons have the necessary competence,

training and authority to exercise that function.

(3)

Where platform workers are not satisfied with the

explanation or the written declaration of the reasons given or they

consider that the decision infringes their rights, they shall have the right

to request the employer to review that decision. The employer shall

respond to such request by providing the platform worker with a

substantiated reply without undue delay and in any event within one (1)

week of receipt of the request

Provided that in the case of employers that are micro,

small or medium-sized enterprises, the deadline for the provision of the

reply referred to in this sub-article shall be extended to two (2) weeks.

(4)

Where the decision referred to in this article infringes the

platform worker’s rights, the employer shall rectify that decision

without delay or, where such rectification is not possible, offer

adequate compensation.

COUNCIL WAGE REGULATION

(5)

This article shall be without prejudice to the rights of the

platform worker to institute proceedings before the Tribunal where he

may claim unfair dismissal and the relevant provisions of the Act shall

apply.

(1)

Without prejudice to the rights and obligations in

the the Employee (Information and Consultation) Regulations, the

employer shall ensure information and consultation of the platform

workers’ official representatives, or where there are no such

representatives, the platform workers, on decisions likely to lead to the

introduction of or substantial changes in the use of automated

monitoring and decision-making systems referred to in article 17(1).

(2)

For the purposes of this article, the definitions

"information" and "consultation" as provided in regulation 2 of the

Employee (Information and Consultation) Regulations shall apply.

The provisions of regulations 3, 4, 7 and 8 of the Employee

(Information and Consultation) Regulations shall apply accordingly.

(3)

The platform workers may be assisted by the official

representative, insofar as this is necessary for them to examine the

matter that is the subject of information and consultation and

formulate an opinion. Where an employer has more than fifty (50)

platform workers in Malta, the expenses that may be incurred for the

examination of the matter that is the subject of information and

consultation shall be borne by the employer, provided that they are

proportionate.

(1)

Without prejudice to any other relevant provisions

in any regulations, orders or other subsidiary legislation made under or

kept in force under the Act, the digital labour platforms and work

agencies shall make the following information available to the

Director General responsible for Employment and Industrial

Relations, official representatives exercising their representative

functions and other relevant authorities

(a)

the number of platform workers performing work

through the digital labour platform concerned on a regular basis

in Malta and their contractual or employment status;

(b)

the general terms and conditions applicable to the

platform workers, including those terms and conditions that are

unilaterally determined by the digital labour platform or work

agency, as the case may be; and

(c)

any other specific terms and conditions that may

be applicable to platform workers in any circumstances.

(2)

The information shall be updated at least every six (6)

months and, as regards paragraphs (1)(b) and (c), each time the terms

and conditions are modified.

COUNCIL WAGE REGULATION

(3)

The Director General responsible for Employment and

Industrial Relations and other relevant authorities and official

representatives shall have the right to request digital labour platforms

and work agencies to provide additional clarifications and details

regarding any of the data provided. The digital labour platforms and

work agencies shall respond to said request within a reasonable period

of time established by the Director General responsible for

Employment and Industrial Relations, other relevant authorities or

official representatives, as the case may be, by providing a

substantiated reply.

Digital labour platforms to whom platform workers are

assigned, or placed at the disposal of, by any work agency shall grant

access to such work agency to all the relevant information including

that on algorithmic management relating to such platform workers in

real time so as to enable work agencies to comply with the obligations

arising from this order.

(1)

Without prejudice to Article 80 of the General

Data Protection Regulation, official representatives or other legal

entities which have a legitimate interest in defending the rights of

platform workers, may engage in any judicial or administrative

proceedings to enforce any one of the rights or obligations arising from

this order. These official representatives or other legal entities may act

on behalf or in support of platform workers in the case of an

infringement of any right or obligation arising from this order, with that

person’s approval.

(2)

Official representatives shall also have the right to act on

behalf or in support of several platform workers, with those persons’

approval.

The employers shall be responsible for the creation of the

possibility for platform workers to contact and communicate with each

other, and to be contacted by official representatives of platform

workers, through the relevant digital infrastructure or similarly

effective means, while complying with the obligations under the

General Data Protection Regulation. Employers shall refrain from

accessing or monitoring those contacts and communications.

Without prejudice to article 28 of the Act, it shall be

unlawful to victimise, to subject any platform worker, including their

official representatives from any adverse treatment by the digital labour

platform or the work agency, as the case may be, or from any adverse

consequences resulting from a complaint lodged against the digital

labour platform or work agency, as the case may be, or resulting from

any proceedings initiated with the aim of enforcing compliance with

the rights provided for in this order.

COUNCIL WAGE REGULATION

(1)

A platform worker who is dismissed or is subject

to measures with equivalent effect shall be regarded for the purposes

of this order as having been unfairly dismissed or subject to measures

with equivalent effect, if the reason therefor is that the platform worker

has exercised the rights provided for in this order.

(2)

Platform workers who consider that they have been

dismissed, or have been subject to measures with equivalent effect, on

the grounds that they have exercised the rights provided for in this

order, may request the digital labour platform or work agency, as the

case may be, to provide duly substantiated grounds for the dismissal or

the equivalent measures. The digital labour platform or work agency,

as the case may be, shall provide those grounds in writing within a

period of ten (10) working days.

(3)

When a platform worker establishes before the Tribunal

facts from which it may be presumed that there has been such a

dismissal or equivalent measures, it shall be for the digital labour

platform or work agency, as the case may be, to prove that the

dismissal or equivalent measures were based on grounds other than

those referred to in sub-article (1).

(4)

In cases referred to in sub-articles (1) and (2), a platform

worker may file a complaint in front of the Tribunal set up in terms of

Part III of Title II of the Act.

(1)

This order shall be applicable without prejudice to

the introduction and implementation of more favourable provisions to

the platform worker in any individual contract or in any collective

agreement.

(2)

In addition, this order shall be without prejudice to any

other rights conferred on platform workers by other legislation of the

European Union.

This order supersedes any less favourable relevant

provisions in any regulations, orders or other subsidiary legislation

made under or kept in force under the Act, including those governing

the temporary agency work and employment status, and in case of any

inconsistency between said legislation and this order, this order shall

prevail.

Any person contravening the provisions of this order

shall be guilty of an offence and shall, on conviction, be liable to a fine

(multa) of not more than two thousand euro (€2,000).