On December 27, 2002, the government published a series of legal notices bringing into force the new Employment and Industrial Relations Act 2002.

This article will continue highlighting aspects of the new Act, other than those already mentioned in our previous article.

Fixed-term contract workers

The use of fixed-term contracts of employment is becoming increasingly popular. As such, this practice gives more flexibility to both the employee and the employer. However, workers on fixed-term contracts of employment may find themselves at a disadvantage when compared to workers on indefinite contracts of employment.

The Act states that an employer, who retains an employee after the fixed contract lapses, shall be deemed to have retained him or her on an indefinite contract unless the employer gives a new fixed-term contract within the first six consecutive days following the expiry.

The Act brought about the implementation of the principle that an employee on a fixed-term contract must not be treated less favourably than a comparable permanent employee at the same place of work unless this difference is justified.

The employer is in duty bound to inform fixed-term workers about vacancies in positions carrying indefinite contracts at that place of work.

Those, whose contract is not an indefinite one, have the right to enjoy the same benefits and conditions as those with indefinite contracts. According to this Act, those workers who have been working with the same employer on a fixed-term contract for four years are subsequently entitled to an indefinite contract from then onwards.

Workers on a fixed-term contract are entitled to the same access to training and job opportunities that may arise from time to time for indefinite contract employees. To prevent any possibility of abuse, these kind of employees are provided with increased job security.

The maximum penalty for the infringement of this provision is Lm500.

Foreign workers

Non-Maltese employees also have certain provisions to prevent them from abuse. These are entitled to the minimum conditions similar to those of Maltese comparable employees. They have the right to equal access to employment and health and safety rights, as long as they have been posted in Malta for a term that exceeds eight days.

The contravention fine set for the infringement of this provision lies between Lm50 and Lm500.

Termination of employment

An employer or employee who would like to move on to another job may issue a termination of employment note for his employer or employee. However, the Act provides a minimum period of notice to be given to the employer or employee in case of a decision to terminate employment. The notice begins on the next working day from when the notice was issued.

Those who have been working in the same workplace for between one and six months (which is the minimum probationary period) have to give their employer or employee one weeks' notice of their intentions to terminate their employment. Those employees who have worked with that business for between six months and two years have to give their employer two weeks' notice. Those working for between two and four years have to give four weeks' notice while those who have worked for between four and seven years have to give eight weeks' notice.

Employees who have been working with a business for more than seven years have to add one week's notice to the eight for every subsequent year of service. The maximum notice an employee can give to his employer is 12 weeks.

In the case of employees in technical, administrative, executive or managerial posts, these workers may be asked to give longer periods of notice as agreed between themselves and their employer.

Employees cannot have their employment terminated while on maternity leave or up to five weeks after the person resumes duties with the business.

If a worker decides not to work the notice period, the employee would have to pay his employer half his wage due for that notice period in question.

In the case of people working on a commission basis, the amount due to them will have to be calculated on the commission received in the three months immediately preceding the termination of employment either by the employee or the employer.

Workers cannot have their employment terminated just because they are part of a trade union, because they are planning their wedding or because they are pregnant.

Discrimination

This provision in the new Act is totally new to Malta's employment law. This provision addresses the important issue of discrimination both in the recruitment process as well as during the course of the employment of a person.

The Act states that a person, whether male or female, cannot be discriminated against, from when advertising for a vacancy to the selection process of candidates.

An employer cannot engage a person having fewer qualifications than a person of the opposite sex. The employer cannot distribute tasks or work on the basis of discriminatory treatment.

Employees in the same class of employment, whether male or female, are entitled to the same remuneration and work of equal value.

Victimisation

The Act also introduces the concept of victimisation against a person who exercises his or her rights under the law. This article states that a person who brings to the attention of the authorities a breach of this Act or takes part in proceedings against his or her employer cannot be victimised.

It also states that employees disclosing confidential information regarding illegal or corrupt practices being committed by his or her employer or someone else on his behalf cannot be victimised by threats or any other form of victimisation.

Harassment

This article in the new Act introduces protection against harassment and sexual harassment at the place of work. Harassment and sexual harassment is perceived as an issue of human rights, with people having the right to live free from intimidation and harassment.

The Act states that an employer or employee cannot harass another employee by making him or her feel uncomfortable in spoken words, pictures or any other form of media. This may not be done if it is based on sexual discrimination regarded as offensive and humiliating or intimidating.

An employee or employer cannot be forced to do any form of physical intimacy or sexual favour to make up for something. A person alleging the breach of any of this provision can, within three months after the incident, lodge a complaint at the Industrial Tribunal, which will investigate the matter.

People found guilty of victimisation or any form of harassment can be fined not more than Lm1,000, not more than six months' imprisonment or both the fine and the jail term.

The Industrial Tribunal

If a trade dispute cannot be settled amicably, the parties may ask the Minister to refer their case to the Industrial Tribunal. All the parties involved have to agree, at least, that the issue would be discussed at the tribunal. The issue will be settled within 21 days from the day of the request.

The Industrial Tribunal will also deal with unfair dismissals. For it to investigate and decide upon an unfair dismissal, the worker claiming the breach should refer the case to the tribunal in writing, giving details of the case.

The Industrial Tribunal will deliver its decisions within one month from the request unless the members sitting on the tribunal feel they need more time to decide on the case or to hear more evidence. As in a court case, any person may appeal the decision as long as this appeal is filed within 12 days of the decision being handed down.

Unions

Every worker and employer is entitled to be represented either by a registered trade union, recognised house union or employers' association. People in managerial posts may be asked not to join a union.

The Act provides that employees cannot be discriminated against or have their employment terminated on the basis that the employee decides to follow directives issued by his or her trade union in the case of an industrial dispute.

The employees listed in the list of people providing an essential service to the country may not strike. These include air traffic controllers at the Malta International Airport and those working in the Airport Fire Fighting Section; members of the Civil Protection Department; persons employed to provide pilotage and mooring, tug services, fire fighting, medical health services and pollution combating services in cases of port emergencies; persons required to import wheat, grain, domestic gas, aviation fuel, diesel, petrol, oil fuel for the operation of air transport; persons guaranteeing the provision of water and electricity and other workers listed in the government's list of essential services.

An employee has the right to choose whether to follow directives by his union. People who decide to do so or otherwise must not be discriminated against, or verbally or physically abused or threatened as a result of his or her decision to follow the directives.

By way of this Act, the minister may appoint a reconciliation panel of not less than five people to settle trade disputes. This panel may be appointed for a period of two years after a consultation process at the Malta Council for Economic and Social Development.

The Act also provides for the setting up of negotiating mechanisms for the people whose job appears in the list of essential service providers.

CSB Employment Agency has been supporting the local business community with its services since 1987. For more information write to us at Vincenti Buildings, 14/19 Strait Street, Valletta VLT 08, or call 2122-5800 or 2124-6543, fax 2123-0520, e-mail: jobs@vacancycentre.com, or www.VacancyCentre.com.

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