A closer look at Malta’s working time regulations

Malta’s primary source of employment legislation is the Employment and Industrial Relations Act. It is important that employers and employees are familiar with its provisions on organisation of working time to ensure that rules are reflected in employment arrangements.

The legislator’s intention to stop abuse may not actually be achieved through this legal notice- Ann Bugeja

Maltese law defines ‘night time’ in the context of night work as the period between 10 p.m. of one day and 6 a.m. of the next.A night worker is taken to be someone who works at least three hours of his daily working hours within these hours or works more than 50 per cent of his annual working time during night time.

A night worker’s normal hours of work must not exceed an average eight hours in any 24-hour period and the average number of hours worked each night will be calculated on the total number of hours worked for a period of 17 weeks in the course of the worker’s employment.

Before assigning a worker to carry out night work the employer is required to have each worker undergo a health check from a doctor. Regular checks are necessary afterwards.

‘Shift work’ is related to any method of organising work in shifts where workers succeed each other at the same work stations, according to a particular pattern, entailing the need for workers to work at different times over a given period of days or weeks.

When shift employees work on a public holiday or outside regular working hours, they are paid overtime at the rates established in either the Wages Council Wage Regulation Order which regulates their industry, or according to overtime regulations.

Regular or normal working hours are not defined by law, as each individual’s ‘normal’ working hours are specific to him or her. The working hours are generally agreed upon between the employer and employee before the employment contract is signed, unless the specific industry dictates otherwise.

Where, in the case of a full-time employee, a public holiday falls on a weekly day of rest to which the employee is entitled, the employee will be entitled to an additional day of vacation leave during that same calendar year or extra remuneration which is added to the employee’s salary. It is also common for employers and employees to agree that if a work day falls on a public holiday or a Sunday due to the employee’s shift, the worked hours would be granted as time off in lieu during the same calendar year.

According to the Employment and Industrial Relations Act, ‘overtime’ means any hours of work in excess of the normal hours of work.

Overtime rates are established in accordance with the applicable Wages Council Wage Regulation Orders. However, under the recently published Legal Notice 46, any employee who is not covered by a Wages Council Wage Regulation Order and who works any overtime as required by the employer is to be compensated at one and a half times the normal rate for the work carried out. This provided that the normal weekly hours, including overtime, do not exceed a total of 48 hours.

Overtime is work carried out outside one’s normal working hours that is requested by the employer. Employees working an extra hour everyday to keep up with their work load are not working overtime as it is not upon the explicit request of the employer.

The legal notice, which does not differentiate between weekdays, Saturdays and Sundays, came into effect last January 31 and therefore will not act retrospectively to entitle employees to any compensation for overtime worked prior to that date. However, employers must revise their standard contracts to ensure that it is duly complied with.

It is very likely, however, that the intention of the legislator to stop abuse and ensure that employees are adequately compensated for overtime may not actually be achieved through this legal notice.

If, for example, the employer provides for an amount as basic salary and another amount as compensation for overtime (with an estimated ratio of 3:1) in the contract, this would appear to satify the compensation for overtime requirement.

By way of example, should an employee’s annual salary be of €20,000, the employer may allocate €15,000 as a basic pay and €5,000 by way of compensation for anyover time which is to be worked. As long as the apportionment of the employee’s remuneration is fair, reasonable and explicitly stated in the employment agreement, providing for overtime in an employment in this manner should conform to the provisions of Legal Notice 46 of 2012.

Dr Bugeja is on the team of Zammit & Associates Advocates’ legal and corporate services.