Law on indefinite contracts under EU scrutiny

Malta may soon have to change its employment laws following indications that an EU directive regulating fixed-term work contracts has not been transposed correctly into national law.

The problem seems to be the exclusion of public sector workers from the benefits of this directive.

The issue was raised recently in the European Parliament by Nationalist MEP Simon Busuttil who asked the Commission to explain why the Maltese legislation discriminates against public sector workers in that they cannot enjoy the same rights as workers in the private sector vis-à-vis fixed-term contracts.

According to Directive 1999/70/EC, all employees in the EU who have been working on a fixed-term contract for more than four years are entitled to be given an indefinite contract after their fourth year of employment.

However, it results that when this EU regulation was transposed into the national law books, an article was added so that public sector employees do not benefit from this regulation.

The EU directive was transposed into Maltese law by means of legal notice 429 of 2002 and incorporated into the Employment and Industrial Relations Act. Yet, section 7(5), added by the Maltese lawmakers, explicitly excludes public sector employees by stating that: "Further to the provisions of article 48 of the act, this regulation shall not be applicable to employment in the public sector."

Replying to Dr Busuttil's question, Employment Commissioner Vladimir Spidla admitted that the Commission was already aware of the issue and that his services were gathering information from the Maltese authorities in order to check the exact situation.

"Should the examination of the legislation or the complaint show that Malta has not transposed correctly or entirely the directive, the Commission will take all the necessary steps to bring Malta in line with community law."

Although the EU Commissioner didn't state clearly his position on the correctness of the current Maltese law, he indicated what the EU position over the issue will finally be.

He told Dr Busuttil that in relation to the alleged distinction between the public and private sector, "it should be noted that the agreement applies to all fixed-term workers who have an employment contract or employment relationship as defined by law, and collective agreements or practice in each member state with limited possibilities of derogations at the national level only in relation to certain training contracts and apprenticeship schemes".

Originally, the EU's investigation over this issue started after a complaint was lodged by the Association of Local Council Executive Secretaries (ASKLM) last year.

According to the association, the Maltese government has not transposed fully the EU legislation regarding fixed-term contract workers and has excluded from its application all public sector employees.

According to ASKLM this is ultra vires and does not reflect in any way the scope of the directive.