POSTING OF WORKERS IN MALTA REGULATIONS

SUBSIDIARY LEGISLATION 452.82

POSTING OF WORKERS IN MALTA

REGULATIONS

10th June, 2016

LEGAL NOTICE 223 of 2016, as amended by Legal Notices 262 of 2020

232 of 2021, 266 of 2022 and 224 of 2023.

(1) The title of these Regulations is the Posting of Workers

in Malta Regulations.

(2) The object of these regulations is to give effect to the relevant

provisions of Directive 96/71/EC of the European Parliament and of

the Council of 16 December 1996 concerning the posting of workers in

the framework of the provision of services as amended by Directive

(EU) 2018/957 of the European Parliament and of the Council of 28

June 2018, and the provisions of Directive 2014/67/EU of the

European Parliament and of the Council of 15 May 2014 on the

enforcement of Directive 96/71/EC concerning the posting of workers

in the framework of the provision of services and amending

Regulation (EU) No 1024/2012 on administrative cooperation through

the Internal Market Information System ( ‘the IMI Regulation’).

(3) These regulations aim to guarantee respect for an

appropriate level of protection of the rights of posted workers for

the cross-border provision of services and establish a set of

appropriate provisions, measures and control mechanisms

necessary for better and more uniform implementation, application

and enforcement in practice of Directive 96/71 and Directive 2014/

67, including measures to prevent and sanction any abuse and

circumvention of the applicable rules.

(4) These regulations shall not in any way affect the exercise of

fundamental rights, including the right or freedom to strike or to take

other legal action, and the right to negotiate, conclude and enforce

collective agreements, or to take collective action.

(regulation 10)

The activities mentioned in regulation 10 include all

building work relating to the construction, repair, upkeep, alteration or

demolition of buildings, and in particular the following work

1. excavation

2. earthmoving

3. actual building work

4. assembly and dismantling of prefabricated elements

5. fitting out or installation

6. alterations

7. renovation

8. repairs

9. dismantling

demolition

11. maintenance

12. upkeep, painting and cleaning work

13. improvements

(1)

In these regulations, unless the context otherwise

requires

"Act" means the Employment and Industrial Relations Act;

"Commission" means the Commission of the European Union;

"comparable employee" means an employee in an undertaking

located in Malta who is engaged in the same or similar work or

occupation, due regard being given to other considerations

including seniority, qualification and skills;

"competent authority in Malta" means the Department of

Industrial and Employment Relations;

"Member State" means a Member State of the European Union or

of the European Economic Area and the European Free Trade Area;

"posted worker" means a worker who, for a limited period, carries

out his work in the territory of a Member State other than the State in

which he normally works";

"remuneration" means all the constituent elements of remuneration

rendered mandatory by the Act, orders or regulations issued

thereunder;

"requesting authority" means the competent authority of a

Member State which makes a request for assistance, information,

notification or recovery of a penalty and, or fine;

"requested authority" means the competent authority in Malta, to

which a request for assistance, information, notification or

recovery of a penalty and, or fine is made.

"sending party" means a service provider which is established in a

different Member State other than Malta;

(2) Subject to the provisions of sub-regulation (1), terms and

expressions used in these regulations shall, unless the context

otherwise requires, have the meaning assigned to them in the Act.

(1) These regulations shall apply to the extent that the

sending partys referred to in the preceding regulation

(a) send posted workers in Malta on their account and

under their direction, under a contract concluded

between the sending party making the posting and the

party for whom the services are intended, provided

that there is an employment relationship between the

sending party and the worker during the period of

posting; or

(b) send posted workers to an establishment or to an

undertaking in Malta which is owned by the sending

party, provided that there is an employment

relationship between the sending party and the worker

during the period of posting; or

(c) being temporary employment undertakings or

placement agencies, hire out a worker to a user

undertaking established or operating in Malta,

provided that there is an employment relationship

between the temporary employment undertaking, or

placement agency, and the worker during the period of

posting

Provided that the sending parties referred to in this

paragraph shall guarantee the posted workers the terms

and conditions of employment laid down in the

Temporary Agency Workers Regulations, which apply

to temporary agency workers hired out by temporary

work agencies established in Malta, and the user

undertaking shall inform the sending party of these

terms and conditions of employment

Provided further that when a worker who has been hired out

by a temporary employment undertaking or temporary

placement agency to a user undertaking, established or

operating in Malta in terms of this paragraph, carries out

work in the framework of the transnational provision of

services within the meaning of this regulation by the

user undertaking in the territory of a Member State

other than where the worker normally works for the

temporary employment undertaking or temporary

placement agency, or for the user undertaking

(a)

the worker shall be considered to be posted to

the territory of that Member State by the

temporary

employment

undertaking

or

temporary placement agency with which the

worker is in an employment relationship;

(b) the temporary employment undertaking or

temporary placement agency shall be considered

to be the sending party making the posting in

terms of these regulations and shall fully comply

with the provisions of these regulations; and

(c) the user undertaking shall inform the temporary

employment

undertaking

or

temporary

placement agency which hired out the worker in

due time before commencement of the work.

(2) These regulations shall not apply to personnel employed on

vessels which fall under the provisions of the Merchant Shipping

Act.

(3) Nothing contained in these regulations shall prevent

application of terms and conditions of employment which are more

favourable to workers.

(1) For the purpose of implementing, applying and enforcing

these regulations, the competent authority in Malta shall make an

overall assessment of all factual elements which assist it in carrying

out checks and controls and where there is reason to believe that a

worker may not qualify as a posted worker in terms of these

regulations.

(2) The elements mentioned in this regulation are indicative

factors in the overall assessment to be made and shall not be

considered in isolation. The assessment of these elements shall be

adapted to each specific case and shall take account of the

specificities of the situation.

(3) In order to determine whether an undertaking, which is the

service provider, genuinely performs substantial activities, other

than purely internal management and, or administrative activities,

the competent authority in Malta shall make an overall assessment

of all factual elements characterising those activities. Such

elements may include in particular

(a) the place where the undertaking has its registered

office and administration, uses office space, pays taxes

and social security contributions and, where

applicable, in accordance with national law has a

professional licence or is registered with the chambers

of commerce or professional bodies;

(b) the place where posted workers are recruited and from

which they are posted;

(c) the law applicable to the contracts concluded by the

undertaking with its workers, on the one hand, and

with its clients, on the other;

(d) the place where the undertaking performs its

substantial business activity and where it employs

administrative staff;

(e) the number of contracts performed and, or the size of

the turnover realised in the Member State of

establishment, taking into account the specific

situation of, inter alia, newly established undertakings

and small and medium sized enterprises.

(4) In order to assess whether a posted worker temporarily

carries out his work in Malta, all factual elements characterising

such work and the situation of the worker shall be examined by the

competent authority in Malta. Such elements may include in

particular

(a) the work is carried out for a limited period of time in

Malta;

(b) the date on which the posting starts;

(c) the posting takes place to Malta as a Member State

other than the one in or from which the posted worker

habitually carries out his work according to Regulation

(EC) No 593/2008 (Rome I) and, or the Rome

Convention;

(d) the posted worker returns to or is expected to resume

working in the Member State from which he or she is

posted after completion of the work or the provision of

services for which he or she was posted;

(e) the nature of activities;

(f)

travel, board and lodging or accommodation is

provided or reimbursed by the employer who posts the

worker and, if so, how this is provided or the method

of reimbursement;

(g) any previous periods during which the post was filled

by the same or by another worker.

(5) The failure to satisfy one or more of the factual elements

set out in this regulation shall not automatically preclude a

situation from being characterised as one of posting.

(6) Where, following an overall assessment made in terms of this

regulation, it is established that an undertaking is improperly or

fraudulently creating the impression that the situation of a worker falls

within the scope of these regulations, that worker shall enjoy all rights

relating to the terms and conditions of employment by virtue of the

Act and the orders or regulations issued thereunder and by virtue of

any applicable collective agreement.

(1) Without prejudice to the provisions of paragraph (c) of

sub-regulation (1) of regulation 3, the sending parties referred to in

regulation 3, shall guarantee, on the basis of equality of treatment,

workers who are posted to Malta the terms and conditions of

employment covering the following matters laid down in the Act,

or in any regulations or orders issued thereunder

(a) maximum work periods and minimum rest periods as

applied to various classes of employees;

(b) minimum paid annual leave as applied to various

classes of employees;

(c) remuneration, including overtime rates as applied to

various classes of employees

Provided that supplementary occupational

retirement pension schemes shall be excluded

from such remuneration;

(d) the conditions of hiring-out of workers, in particular

the supply of workers by temporary employment

undertakings;

(e) measures in accordance with the laws of Malta relating

to health, safety and hygiene at work;

(f)

protective measures with regard to the terms and

conditions of employment protecting pregnant women

or women who have recently given birth;

(g) protective measures in accordance with the laws of

Malta with regards to terms and conditions of

employment protecting children and young people;

(h) equality of treatment between men and women and

other provisions of non-discrimination in accordance

with the laws of Malta;

(i)

the conditions of workers’ accommodation where this

is provided by the employer to workers who are away

from their regular place of work;

(j)

allowances or reimbursement of expenditure to cover

travel, board and lodging expenses where this is

provided by the employer to workers away from home

for professional reasons

Provided that this paragraph shall apply exclusively to travel,

board and lodging expenditure incurred by posted workers where they

are required to travel to and from their regular place of work in the

Member State to whose territory they are posted to Malta, or where

they are temporarily sent by their employer from that regular place of

work to another place of work.

(2) Allowances specific to the posting shall be considered to be

part of the remuneration, unless they are paid in reimbursement of

expenditure actually incurred on account of the posting, such as

expenditure on travel, board and lodging. Without prejudice to

paragraph (j) of sub-regulation (1), the employer shall reimburse

the posted worker for such expenditure in terms of any applicable

law

Provided that, where the terms and conditions of employment

applicable to the employment relationship do not determine whether

and, if so, which elements of the allowance specific to the posting are

paid in reimbursement of expenditure actually incurred on account of

the posting or which are part of remuneration, then the entire

allowance shall be considered to be paid in reimbursement of

expenditure.

(3) In cases of initial assembly and, or first installation of

goods where such activity is an integral part of a contract for the

supply of goods and necessary for taking the goods supplied into

use and carried out by the skilled and, or specialist workers of the

supplying organisation, paragraphs (b) and (c) of sub-regulation (1)

shall not apply if the period of posting does not exceed eight (8)

days

Provided that this exclusion shall not apply to activities in

the field of building work, including but not limited to work related

to the construction, repair, upkeep, alteration or demolition of

buildings, and in particular excavation, earth moving, actual

building work, assembly and dismantling of prefabricated

elements, fitting out or installation, alterations, renovation, repairs,

dismantling, demolition, maintenance, upkeep, painting and

cleaning work and improvements.

(3A) Paragraph (c) of sub-regulation (1) shall not apply in the cases

referred to in paragraphs (a) and (b) of sub-regulation (1) of regulation

3 when the length of the posting does not exceed one (1) month.

(4) The length of the posting shall be calculated on the basis of

a reference period of one year from the beginning of the posting

Provided that for the purpose of such calculation, account shall be

taken of any previous periods for which the post has been filled by

a posted worker.

(5) When a worker is posted to Malta, the inspection of terms

and conditions of employment which must be complied with in

accordance with this regulation is the responsibility of the

competent authority in Malta in cooperation, where necessary, with

that of the Member State of establishment in terms of these

regulations

Provided that inspections shall be based primarily on a risk

assessment which may identify the sectors of activity in which the

employment of workers posted for the provision of services is

concentrated. The carrying out of large infrastructural projects, the

existence of long chains of subcontractors, geographic proximity,

the special problems and needs of specific sectors, the past record

of infringement, as well as the vulnerability of certain groups of

workers may in particular be taken into account.

(6) Where Malta is the member state of establishment of the

service provider, the competent authority in Malta shall assist the

Member State to which postings takes place to ensure compliance

with EU Directive 96/71/EC and EU Directive 2014/67. This shall

not prejudice the powers of the Member State to which the posting

takes place to monitor, control or take any necessary supervisory or

enforcement measures.

(7) In the cases where facts indicate possible irregularities, the

competent authority in Malta shall, on its own initiative,

c o m m u n i c a t e t o t h e M e m b e r St a t e c o n c e r n e d a n y r e l e v a n t

information without undue delay.

(8) When a worker is posted to Malta, the competent authority

in Malta may ask the competent authority of the Member State of

establishment, in respect of each instance where services are

provided or each service provider, to provide information as to the

legality of the service provider ’s establishment, the service

provider’s good conduct, and the absence of any infringement of

the applicable rules.

(9) When Malta is the country of establishment of the service

provider, the competent authority in Malta shall provide the

information contained in sub-regulation (8) in terms of regulation

(1)Bla ħsara għad-dispożizzjonijiet tal-paragrafu (ċ) tas-

subregolament (1) tar-regolament 3, fejn id-durata effettiva tal-

istazzjonar teċċedi it-tnax(12)-il xahar, il-fornituri ta’ servizzi

barranin imsemmija fir-regolament 3 għandhom jiggarantixxu,

abbażi ta’ ugwaljanza ta’ trattament, lill-ħaddiema stazzjonati

f ’Malta, flimkien mat-termini u l-kondizzjonijiet tal-impjieg

imsemmija fis-subregolament (1) tar-regolament 5, it-termini u l-

kondizzjonijiet applikabbli kollha tal-impjieg bis-saħħa tal-Att, jew

ta’ kwalunkwe regolamenti jew ordnijiet maħruġa taħtu

Iżda dan ma għandux japplika għal

(a) it-termini u l-kondizzjonijiet relatati mal-konklużjoni

u t-terminazzjoni ta’ kuntratt tal-impieg; u

(b) skemi ta’ pensjoni

okkupazzjonali

tal-irtirar

supplimentari.

(2)

Fejn il-impjegatur mandanti jippreżenta notifika motivata,

l-awtorità kompetenti f’Malta għandha testendi l-perijodu msemmi

fis-subregolament (1) għal tmintax(18)-il xahar.

(3) Fejn il-impjegatur mandanti jissostitwixxi ħaddiem

stazzjonat b’ħaddiem stazzjonat ieħor li jwettaq l-istess xogħol fl-

istess post, id-durata tal-istazzjonament, għall-finijiet ta’ dan ir-

regolament, għandha tkun id-durata kumulattiva tal-perijodi ta’

stazzjonament tal-ħaddiema stazzjonati individwali kkonċernati

Iżda li, għall-finijiet ta’ dan is-subregolament, il-kunċett ta’ "l-

istess xogħol fl-istess post" għandu jiġi ddeterminat filwaqt li jittieħed

kont fost l-oħrajn tan-natura tas-servizz li għandu jiġi pprovdut, ix-

xogħol li għandu jitwettaq u l-indirizz jew indirizzi tal-post tax-

xogħol.

(1) Għandu jkun id-dmir tal-fornitur ta’ servizzi li

jistazzjona l-ħaddiem f ’Malta, li javża lill-awtorità kompetenti

f ’Malta bl-intenzjoni tiegħu li jistazzjona ħaddiem f ’Malta qabel

id-data tal-istazzjonar tal-ħaddiem, mhux aktar tard minn meta

tibda l-prestazzjoni tas-servizz, liema notifika għandu jkun fiha l-

informazzjoni rilevanti meħtieġa sabiex tippermetti kontrolli

fattwali fuq il-post tax-xogħol. Din in-notifika, li ssir bil-lingwa

Ingliża għandha tinkludi

(a) l-identità tal-fornitur ta' servizz;

(b) l-indirizz fil-pajjiż fejn il-ħaddiem ikun soltu jaħdem;

(ċ) l-għadd

antiċipat

ta'

ħaddiema

stazzjonati

identifikabbli b'mod ċar;

(d) l-isem, id-data tat-twelid u ċ-ċittadinanza tal-ħaddiem

stazzjonat;

(e) il-persuni msemmija taħt is-subregolamenti (6) u (7);

(f)

kemm mistenni jdum, it-tbassir tad-data tal-bidu u tat-

tmiem tal-istazzjonament;

(g) in-natura tas-servizzi li jiġġustifikaw l-istazzjonament

inkluż it-tip ta’ xogħol li jkun ser jagħmel; u

(h) l-isem u l-indirizz tal-ażjenda f’Malta li l-ħaddiem se

jkun stazzjonat magħha.

(2) Kopja tal-avviż imsemmi fis-subregolament (1), flimkien

ma’ records aġġornati li juru sew li jkun hemm konformità mad-

dispożizzjonijiet ta’ dawn ir-regolamenti, għandhom jinżammu fl-

ażjenda f ’Malta li tkun qegħda tagħmel użu mis-servizzi tal-

ħaddiem stazzjonat.

(3) Għandu jkun id-dmir tal-fornitur ta’ servizz li jistazzjona l-

ħaddiem f’Malta li jżomm, jagħmel disponibbli u jkun fil-possess

ta' kopji stampati jew b'forma elettronika tal-kuntratt tal-impjieg

jew dokument ekwivalenti skont it-tifsira tad-Direttiva tal-Kunsill

91/533/KEE, inkluża, fejn xieraq jew rilevanti, l-informazzjoni

addizzjonali msemmija fl-Artikolu 4 ta' dik id-Direttiva, riċevuti

tal-paga, reġistri tal-ħinijiet li jindikaw il-bidu, it-tmiem u l-ħin

totali tax-xogħol tal-ġurnata u prova ta' ħlas ta' pagi jew kopji ta'

dokumenti ekwivalenti matul il-perjodu ta' stazzjonament f'post

aċċessibbli u identifikat b'mod ċar fl-ażjenda li qed tagħmel użu

mis-servizzi mogħtija mill-ħaddiem stazzjonat.

(4) Għandu jkun id-dmir tal-fornitur ta’ servizz li jistazzjona l-

ħaddiem f ’Malta li jitwasslu d-dokumenti msemmija fis-

subregolament (3), wara l-perjodu ta' stazzjonament, fuq talba tal-

awtorità kompetenti f’Malta, f’perjodu ta' żmien raġonevoli.

(5) Għandu jkun id-dmir tal-fornitur ta’ servizz li jistazzjona l-

ħaddiem f ’Malta li tiġi pprovduta traduzzjoni tad-dokumenti

msemmija fis-subregolament (3) fil-lingwa Ingliża.

(6) Għandu jkun id-dmir tal-fornitur ta’ servizz li jistazzjona l-

ħaddiem f ’Malta li jaħtar persuna li tikkomunika mal-awtorità

kompetenti f’Malta u li jibgħat u jirċievi dokumenti u, jew avviżi,

fejn xieraq.

(7) Għandu jkun id-dmir tal-fornitur ta’ servizz li jistazzjona l-

ħaddiem f’Malta li jaħtar persuna ta' kuntatt, li tista’ tkun differenti

minn dik maħtura skont is-subregolament (6), li taġixxi bħala

rappreżentant f’Malta li permezz tagħha l-imsieħba soċjali jistgħu

jfittxu li jimpenjaw lill-fornitur ta' servizzi biex jidħol f'negozjar

kollettiv matul il-perjodu li matulu jiġu pprovduti s-servizzi. Dik

il-persuna ta’ kuntatt ma għandhiex għalfejn tkun preżenti f’Malta,

imma trid tkun disponibbli fuq talba motivata u ġustifikata.

(8) L-obbligi imposti skont dan ir-regolament għandhom jiġu

kkomunikati kif meħtieġ mir-regolament 7(8), u għandhom jitqiesu

li ġew sodisfatti f’każ li jkun hemm konformità magħhom b’mezzi

elettroniċi.

(1)Ħaddiem stazzjonat għandu jiġi nnotifikat ukoll dwar

(a) ir-remunerazzjoni li għaliha l-ħaddiem huwa intitolat

skont il-liġi applikabbli tal-Istat Membru ospitanti;

(b) fejn applikabbli, kwalunkwe allowance speċifika

għall-istazzjonar u kwalunkwe arranġament biex jiġi

rimborżat l-infiq fuq il-vjaġġi, l-ikel u l-

akkomodazzjoni; u

(ċ)

il-ħolqa għal websajt nazzjonali uffiċjali uniku

żviluppat mill-Istat Membru ospitanti skont l-Artikolu

5(2) tad-Direttiva 2014/67/UE tal-Parlament Ewropew

u tal-Kunsill.

(2) L-informazzjoni

msemmija

fil-paragrafu

(a)

tas-

subregolament (1) tista’, fejn xieraq, tingħata f’forma ta’ referenza

għad-dispożizzjonijet speċifiċi ta’ liġijiet, regolamenti u atti

a m m i n i s t r a t t i v i j e w s t a t u t or j i j e w i l - f t e h i m i e t k o l l e t t i v i l i

jirregolaw dik l-informazzjoni.

(3) Id-dispożizzjonijiet fis-subregolament (1) ma għandhomx

japplikaw jekk it-tul ta’ kull perjodu tax-xogħol barra mill-Istat

Membru li fih soltu jaħdem il-ħaddiem ikun ta’ erba’ (4) ġimgħat

konsekuttivi jew inqas.

(10) Without prejudice to the right to request Member States

where a worker is posted to carry out checks and controls, nothing

in this regulation shall impose an obligation on the competent

a u t h o r i t y i n M a l t a , i n c a s e s w h e r e Ma l t a i s t h e c o u n t r y o f

establishment, to carry out factual checks and controls in the

territory of the host Member State in which the service is provided.

(11) Service providers established in a non-Member State shall

not be given more favourable treatment than service providers

established in a Member State.

5A. (1)Without prejudice to the provisions of paragraph (c) of

sub-regulation (1) of regulation 3, where the effective duration of a

posting exceeds twelve (12) months, the sending parties referred to

in r egulat ion 3 shall guarantee, on the basis o f eq uality of

treatment, workers who are posted to Malta, in addition to the terms

and conditions of employment referred to in sub-regulation (1) of

regulation 5, all the applicable terms and conditions of employment

by virtue of the Act, or any regulations or orders issued thereunder

Provided that this shall not apply to

(a) the terms and conditions related to the conclusion and

termination of the employment contract; and

(b) supplementary

occupational

retirement

pension

schemes.

(2) Where the sending party submits a motivated notification,

the competent authority in Malta shall extend the period referred to

in sub-regulation (1) to eighteen (18) months.

(3) Where the sending party replaces a posted worker by

another posted worker performing the same task at the same place,

the duration of the posting shall, for the purposes of this regulation,

be the cumulative duration of the posting periods of the individual

posted workers concerned

Provided that for the purposes of this sub-regulation, the

concept of "the same task at the same place" shall be determined

taking into consideration, inter alia, the nature of the service that shall

be provided, the work that shall be performed and the address or

addresses of the workplace.

6. (1) It shall be the duty of the service provider posting the

worker to Malta to notify the competent authority in Malta of the

intention to post a worker to Malta prior to the date of posting of

the worker, at the latest at the commencement of the posting, which

notification shall contain the relevant information necessary in

order to allow factual controls at the workplace. This notification,

effected in the English language, shall include

(a) the identity of the service provider;

(b) the address in the country where the worker habitually

carries out his work;

(c) the anticipated number of clearly identifiable posted

workers;

(d) the name, date of birth and nationality of the posted

worker;

(e) the persons referred to sub-regulations (6) and (7);

(f)

the anticipated duration, envisaged beginning and end

date of the posting;

(g) the nature of the services justifying the posting,

including the type of work to be carried out; and

(h) the name and address of the undertaking in Malta to

which the worker is to be posted.

(2) A copy of the notification referred to in sub-regulation (1),

together with updated records sufficient to show that the provisions

of these regulations are being complied with, shall be kept at the

undertaking in Malta making use of the services of the posted

worker.

(3) It shall be the duty of the service provider posting the

worker to Malta to keep, to make available and to retain copies, in

paper or electronic form, of the employment contract or an

equivalent document within the meaning of Council Directive 91/

533/EEC, including, where appropriate or relevant, the additional

information referred to in article 4 of that Directive, payslips, time-

sheets indicating the beginning, end and duration of the daily

working time and proof of payment of wages or copies of

equivalent documents during the period of posting in an accessible

and clearly identified place in the undertaking making use of the

services of the posted worker.

(4) It shall be the duty of the service provider posting the

worker to Malta to deliver the documents referred to in sub-

regulation (3) of this regulation, after the period of posting, at the

request of the competent authority in Malta, within a reasonable

period of time.

(5) It shall be the duty of the service provider to provide a

translation of the documents referred to in sub-regulation (3) into

the English language.

(6) It shall be the duty of the service provider to designate a

person to liaise with the competent authority in Malta, and to send

out and receive documents and, or notices, where appropriate.

(7) It shall be the duty of the service provider to designate a

contact person, who may be different from the one designated in

terms of sub-regulation (6), to act as a representative in Malta

through whom the social partners may seek to engage the service

provider to enter into collective bargaining during the period in

which the services are provided. It is not required that such contact

person is present in Malta but he has to be available on a reasonable

and justified request.

(8) The obligations imposed in terms of this regulation are to

be disseminated as required by regulation 7(8), and shall be deemed

to be fulfilled in case where they are complied with by electronic

means.

6A. (1) A posted worker shall in addition be notified of

(a) the remuneration to which the worker is entitled in

accordance with the applicable law of the host

Member State;

(b) where applicable, any allowances specific to posting

and any arrangements for reimbursing expenditure on

travel, board and lodging; and

(c) the link to the single official national website

developed by the host Member State pursuant to

Article 5(2) of Directive 2014/67/EU of the European

Parliament and of the Council.

(2) The information referred to in paragraph (a) of sub-

regulation (1) may, where appropriate, be given in the form of a

reference to specific provisions of laws, regulations and

administrative or statutory acts or collective agreements governing

that information.

(3) The provisions of sub-regulation (1) shall not apply if the

duration of each work period outside the Member State in which

the worker habitually works is four (4) consecutive weeks or less.

7. (1) The competent authority in Malta shall be responsible for

the enforcement of the provisions of these regulations and for

liaising and cooperating with the Commission and the authorities

having corresponding responsibilities in other Member States on

issues relating to the implementation, application and enforcement

in practice of Directives 96/71/EC and 2014/67. To this effect, the

competent authority in Malta shall work in close cooperation and

provide the corresponding authorities in other Member States with

assistance without undue delay. Such mutual administrative

cooperation and assistance shall be provided free of charge, and

shall be implemented through the Internal Market Information

System (IMI) established by Regulation 1024/2012.

(2) The co-operation with other authorities referred to in sub-

regulation (1) shall include

(a) replying

to

reasoned

requests

for

information,

including information with respect to a possible

recovery of an administrative penalty and, or fine, or

the notification of a decision imposing such a penalty

and, or fine as contemplated in these regulations; and

(b) carrying out checks, inspections and investigations

with respect to the situations of posting referred in

regulation 3, including the investigation of any non-

compliance or abuse of applicable rules on the posting

of workers.

(3) The co-operation with other authorities referred to in sub-

regulation (1) may include the sending and service of documents.

(4) For the purpose of responding to a request for assistance

from competent authorities in another Member State, the competent

authority in Malta shall ensure that service providers established in

Malta supply the latter with all the information necessary for

supervising their activities, failing which the service providers

shall be guilty of an offence.

(5)

In the event of difficulty in meeting a request for

information or in carrying out checks, inspections or investigations,

the competent authority in Malta shall, without delay, inform the

requesting authority with a view to finding a solution.

(6) The information requested to the competent authority in

Malta by corresponding authorities in other Member States or by

the Commission shall be supplied by electronic means within the

following time limits

(a) in urgent cases requiring the consultation of registers,

such as those on confirmation of the VAT registration,

for the purpose of checking an establishment in Malta,

as soon as possible and up to a maximum of two

working days from the receipt of the request

Provided that the reason for the urgency shall be

clearly indicated in the request, including facts to

substantiate the urgency

Provided further that the registers mentioned in this

paragraph shall be consulted by other competent

authorities if such registers are listed by the Member

States in the Internal Market Information System

established by Regulation 1024/2012;

(b) in cases of all other requests for information, up to a

maximum of twenty five working days from the

receipt of the request, unless a shorter time limit is

mutually agreed between the competent authority in

Malta and the corresponding competent authority in

the other Member State.

(7) Any information exchanged or transmitted in terms of this

regulation

(a) shall be used only in respect of the matter or matters

for which it was requested; and

(b) shall not preclude the competent authority in Malta

from taking measures to investigate and prevent

alleged breaches of these regulations.

(8) The competent authority in Malta shall facilitate access to

information on the terms and conditions of employment referred to

in regulations 5 and 6, which are to be applied and complied with

by service providers by

(a) making such information generally available free of

charge in a clear, transparent, comprehensive and

easily accessible way at a distance and by electronic

means, in formats and in accordance with web

accessibility standards that ensure access to persons

with disabilities;

(b) ensuring that the applicable terms and conditions and

the relevant laws are indicated clearly, in a detailed

and user-friendly manner and in an accessible format

on a single official national website and by other

suitable means;

(c) ensuring that the information is easily-available to

workers and service providers free of charge in

English, which information shall include the main

labour conditions applicable, the description of the

procedures to lodge complaints and upon requests in

formats accessible to persons with disabilities, further

detailed information on the employment and social

conditions applicable to posted workers;

(d) improving the accessibility and clarity of the relevant

information, particularly that found on the single

official national website;

(e) indicating a contact person in charge of dealing with

requests for information and indicating the bodies and

authorities to which workers and undertakings can turn

for general information on the applicable law; and

(f)

keeping all the information up to date

Provided that when the information on the single official

national website does not indicate which terms and

conditions of employment shall be applied, that

circumstance shall be taken into account when imposing

the penalties laid down in regulation 12, to the extent

necessary to ensure the proportionality thereof.

(1) This regulation shall apply to the cross-border

enforcement of financial administrative penalties and, or fines,

including fees and surcharges, imposed by competent authorities or

confirmed by administrative or judicial bodies, on a service

provider established in Malta for failure to comply with the

applicable rules on posting of workers in another Member State.

(2) At the request of a requesting authority, the competent

authority in Malta, hereinafter referred to as the ‘requested

authority’, shall recover an administrative penalty and, or fine that

has been imposed by a decision in accordance with the laws and

procedures of the requesting member state by a competent authority

or confirmed by an administrative or judicial body, which decision

constitutes res judicata.

(3) At the request of a requesting authority, the requested

authority shall notify

(a) a decision imposing an administrative penalty and, or

fine in accordance with the laws and procedures of the

requesting Member State by a competent authority or

confirmed by an administrative or judicial body, which

decision constitutes res judicata; and

(b) any other relevant document related to the recovery of

the aforementioned penalty and, or fine, including the

judgment or final decision, which may be in the form

of a certified copy, that constitutes the legal basis and

title for the execution of the request for recovery.

(4) In order for the requested authority to be able to carry out

i ts o bl ig a t io ns i n te r m s of s ub - reg u la t i on s ( 2 ) an d ( 3) , t he

requesting authority’s request for recovery of an administrative

penalty and, or fine or the requesting authority’s request for

notification of a decision imposing such a penalty and, or fine

shall

(a) be made in accordance with the laws, regulations and

administrative practices in force in the requesting

authority’s Member State;

(b) only be made when the requesting authority is unable

to recover or notify in accordance with its laws,

regulations and administrative practices; and

(c) relate to a penalty and, or fine, and to an underlying

claim and, or instrument permitting its enforcement in

the requesting member state which are not contested or

challenged in that Member State.

(5) The request of the requesting authority for recovery of an

administrative penalty and, or fine as well as the notification of a

decision concerning such a penalty and, or fine shall be carried out

without undue delay by means of the Internal Market Information

System established by Regulation 1024/2012 and shall include

(a) the name and known address of the addressee, and any

other relevant data or information for the identification

of the addressee;

(b) a summary of the facts and circumstances of the

infringement, the nature of the offence and the relevant

applicable rules;

(c) the instrument permitting enforcement in the

requesting Member State and all other relevant

information or documents, including those of a judicial

nature,

concerning

the

underlying

claim,

administrative penalty and, or fine;

(d) the name, address and other contact details regarding

the competent authority responsible for the assessment

of the administrative penalty and, or fine, and, if

different, the competent body where further

information can be obtained concerning the penalty

and, or fine or the possibilities for contesting the

payment obligation or decision imposing it;

(e) in the case of a request for notification of a decision,

the purpose of the notification and the period within

which it shall be effected; and

(f)

in the case of a request for recovery, the date when the

judgment or decision has become enforceable or final,

a description of the nature and amount of the

administrative penalty and, or fine, any dates relevant

to the enforcement process, including whether, and if

so how, the judgment or decision has been served on

the defendant and, or given in default of appearance, a

confirmation from the requesting authority that the

penalty and, or fine is not subject to any further

appeal, and the underlying claim in respect of which

the request is made and its different components.

(6) Unless the requested authority decides to invoke any of the

grounds of refusal provided in sub-regulation (9), the requested

authority, upon receipt of a request to recover or to notify in terms

of this regulation, shall recognize it without any further formality

being required and shall take all the necessary measures for its

execution, and that request to notify or that request to recover shall

be deemed to have the same effect as if it had been made by the

requesting member state

Provided that the requested authority shall take all the

necessary steps to notify the service provider of the request for

recovery or of the decision imposing an administrative penalty and,

or fine and of the relevant documents, where necessary, as soon as

possible but not later than one month of receipt of the request.

(7) The requested authority, shall, by means of a judicial letter

served on the service provider by whom the administrative penalty

and, o r fin e is due, requi re the servi ce provi der to pay th e

administrative penalty and, or fine in terms of this regulation. Upon

the service of such a judicial letter, the claim of the requested

authority contained in such judicial letter shall, after the lapse of

ten days from such service, constitute an executive title for the

purpose of Title VII of Part I of Book Second of the Code of

Organization and Civil Procedure.

(8) The requested authority shall as soon as possible inform the

requesting authority of

(a) the action taken on its request for recovery and

notification and, more specifically, of the date on

which the addressee was notified; and

(b) the grounds of refusal referred to in sub regulation (9)

of this regulation, in the case where the requested

authority refuses to execute a request for recovery of

an administrative penalty and, or fine or to notify a

decision imposing an administrative penalty and, or

fine.

(9)

The requested authority shall not execute a request

(a) for recovery or notification if the request does not

contain the information required in sub-regulation (5),

is incomplete or manifestly does not correspond to the

underlying decision;

(b) for recovery if

(i)

following inquiries by the requested authority, it

is obvious that the envisaged costs or resources

required to recover the administrative penalty

and, or fine are disproportionate in relation to

the amount to be recovered or would give rise to

significant difficulties; or

(ii) the overall financial penalty and, or fine is less

than three hundred and fifty euro (€350) or the

equivalent to that amount; or

(iii) the fundamental rights and freedoms of

defendants and legal principles that apply to

them in accordance with the law of the requested

member state are not respected.

(10) Disputes concerning the enforcement measures taken in

Malta or concerning the validity of a notification made by the

requested authority shall be brought before the Maltese Courts in

accordance with Maltese Law.

(11) Any amounts recovered in terms of this regulation shall

accrue to the requested authority. The latter shall recover the

amounts due in Euros. If necessary, the requested authority shall

convert the penalty and, or fine into the currency of the requested

state at the rate of exchange applying on the date when the penalty

and, or fine were imposed.

(12) Member States shall not claim from each other the

reimbursement of costs arising from any mutual assistance which

they grant each other in terms of these regulations.

(1) When a posted worker alleges that he has been treated

in a manner which infringes any right conferred on him by these

regulations, such employee may submit a written request to the

employer to provide him with a written statement in which shall be

listed the reasons, if any, for any difference in treatment and such

statement shall be provided by the employer within ten working

days from the date of the request.

(2) Without prejudice to any other right regarding the

institution of proceedings in another state, a posted worker shall

have the right to institute proceedings in the courts of Malta to

safeguard any right granted to him by virtue of these regulations,

even after the relationship in which the alleged infringement has

occurred has ended and even where the posted worker has left

Malta.

(3) Any correspondence referred to in sub-regulation (1) shall

be admissible in proceedings brought before the courts, and if it

appears to the court that the respondent deliberately, and without

reasonable excuse, omitted to reply within ten working days of the

date of receipt of such notification or that his 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 he

committed an unlawful act.

(4) The provisions in sub-regulation (1) requiring the

respondent to submit a reply shall not apply if, on the date that the

request was made, proceedings had already been initiated on the

matter in front of the Courts of Law.

(5) Any employer who grants unfavourable treatment to a

posted worker who has brought judicial proceedings in terms of

this regulation shall be guilty of an offence according to these

regulations.

(1) This regulation shall only apply in respect of a

subcontracting chain operating in one or more of the activities

listed in the Schedule.

(2) In any civil proceedings instituted by the posted worker where

there is a subcontracting chain, the posted worker may hold the

contractor of which the employer is a direct subcontractor and the direct

subcontractor jointly and severally liable with respect to those rights

granted by regulation 5(1)(c)

Provided that the liability shall be limited to the posted worker’s

rights acquired under the contractual relationship between the contractor

and his direct subcontractor

Provided further that the contractor shall not be liable in terms

of the foregoing if he has undertaken a proper due diligence exercise as

to the solvency and the compliance of its direct subcontractor with laws

regulating its operations

Provided further that the provisions of this regulation shall

apply mutatis mutandis to any employee in relation to the activities

listed in the Schedule.

Nothing shall prevent any association, organization or other

legal entity, having a legitimate interest in ensuring that these

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

or in support of the posted worker or his employer, with his

approval, in any judicial procedure which is provided for the

enforcement of obligations under these regulations.

Without prejudice to the proviso to sub-regulation (8) of

regulation 7, any person contravening the provisions of these

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

liable to a fine (multa) of not less than one hundred and seventeen

euro (€117) and not more than one thousand, one hundred and

sixty-five euro (€1,165)

Provided that in the institution of criminal proceedings in

terms of the Act, where the employer is convicted of

(a) having failed to pay the posted worker in terms of

regulation 5(1)(c);

(b) having unduly withheld back-payments, refund of

taxes or social security contributions from the posted

worker’s salaries; or

(c) having withheld or deducted from the posted worker’s

salaries excessive costs for accommodation,

the court shall, at the request of the prosecution, besides awarding

the punishment imposed by this regulation, order the offender, on

proof of the amount, to refund or pay to the posted worker the said

amount due by him

Provided further that nothing in this regulation shall

derogate from any right of the posted worker to recover by any

o t he r m e a n s a n y a m o u nt du e t o hi m , i nc l ud i ng i n t e r m s o f

regulation 9.