Part-time work

Mark Bugeja writes:
Correct me if I am wrong, but should not part timers receive bonuses and other benefits (say, vacation and sick leave) pro rata irrespective of the total number of hours per week they work?

The government and private businesses seem to apply EU law only if employees "are allowed to work" over 20 hours per week.

I believe this to be very wrong and discriminatory. I know that various employers have till now gone as far as to employ people up to 19.9 hours per week merely to deny them the right for any benefits. How crass!

If what I say is correct, then are all workers entitled to the benefits?

Is there a difference between private and public employees?

Should not EU law apply retrospectively, back to the date when Malta joined the EU? Should not employees be granted the benefits they were entitled to all along and which they were denied because of misinterpretation or misapplication of the established EU law?

How should one proceed if an employer (public or private) fails to deliver the benefits?

I would be grateful to have your opinion on whether I have a basis for contesting this decision under the principle of free movement of persons.

Before I even had time to bring this query to my column, Maltese law on part-time work has since been changed, addressing the complaint the reader is here putting forward.

Until recently our law laid down that part timers would only qualify for certain rights if they worked for a minimum number of 20 hours per week. These rights consist, in the main, of entitlements to leave, sick leave and bonuses worked out on a proportionate basis according to the number of hours worked (see table).

In time it transpired that the 20-hour threshold was opening the door for certain employers to engage people for just below this limit in order to avoid the consequent rights. This led to an unpleasant situation which has now been redressed in the recent changes introduced in Maltese law.

The changes have removed the 20-hour limit thereby allowing many part timers to start benefiting from these rights.

There is no doubt that this was a positive step forward and I fully support the government for taking it. Congratulations must surely also go to trade unions, such as the UHM, which have long insisted on these changes.

This leaves some outstanding questions raised by the reader.

First, the question as to whether Maltese law was in breach of EU law and whether it is in line with EU law now.

According to the European Commission, Maltese law was not in line with EU law because it restricted the general principle of non-discrimination of part-timers. In particular, the Commission pointed to the 20-hour threshold as well as to the fact that Maltese law only provides rights to persons whose part-time work is their principal employment.

On the first issue, my reading of the recent changes in Maltese law is that the 20-hour threshold was removed altogether, although eligibility appears to have been tied to part-time work for which national security contributions are paid, starting from eight hours per week.

On the other hand, the condition that these rights only apply to part timers whose part-time work is their principal employment continues to apply. This means that the rights are not available to those whose part-time work is not their main job.

Whether these changes will be sufficient to bring Maltese law in law with EU law is still to be seen. It has to be noted, however, that EU law on this particular subject does leave a great deal of room for national governments to decide how and the extent to which EU provisions should be adopted into national legislation. EU law states that "where justified by objective reasons, member states... may... make access to particular conditions of employment subject to a period of service, time worked or earnings qualification".

Turning to the question on whether there is a difference between private and public employees, the answer is that EU law makes no such distinction and, therefore, all rights apply to part-time workers in the public and private sector alike.

Another question was on whether EU law applies retrospectively, back to the date when Malta joined the EU and whether employees should be granted the benefits they were entitled to all along and which they were denied because of misinterpretation or misapplication of the established EU law. This is a tricky one. My view is that until there is a firm ruling by a court of law to the effect that the former Maltese law was not in line with EU law one cannot speak of rights acquired retroactively, more so given the wide discretion allowed by EU law as to interpretation. So, really, this would be up to the court to decide.

Finally, on how one should proceed if an employer (public or private) fails to deliver the benefits, the answer is that the aggrieved employee may present a complaint to the Industrial Tribunal within four months from the date of the less favourable treatment.

Pro rata entitlements for part timers
Public holidays
Annual vacation leave
Sick leave
Birth leave
Bereavement leave
Marriage leave
Injury leave
Statutory bonuses and other income supplements

Readers who would like to ask questions to be answered in this column can send an e-mail, identifying themselves, to contact@simonbusuttil.eu or through www.simonbusuttil.eu.