Two of the four Legal Notices recently enacted amend current laws on Temporary Agency Workers and Transfer of Business Regulations whereas the other two Legal Notices usher in new obligations on employers. These are the Annual Leave National Standard Order – which also repeals the Weekly Day of Rest and Annual Vacation Leave National Standard Order; and the Itemised Payslip Regulations.
Temporary Agency Workers
The Temporary Agency Workers (Amendment) Regulations (L.N. 272 of 2018) amends the Temporary Agency Workers Regulations (S.L. 452.106) which originally came into force in 2011. Under the previous legislative framework, temporary agency workers performing similar tasks to those employees at the place of work of such undertaking to which they were deployed could be paid less as long as the temporary work agency paid the temporary agency workers between assignments. This exception has now been removed and the wages due to the temporary agency workers must be at least equal to those that would apply if they had been recruited directly at the place of work of such undertaking.
There is a clear exception to this rule for the first four weeks of any assignment where the temporary agency is not obliged to conform to the new equal pay rule. This exception applies to the assignment, such that even if the temporary agency worker originally deployed is replaced after the four week period, the equal pay rule will apply to the newly deployed temporary agency worker.
Transfer of business
A number of changes have come through the enactment of the Transfer of Business (Protection of Employment) (Amendment) Regulations (L.N. 273 of 2018) which amends the Transfer of Business (Protection of Employment) Regulations (S.L 452.85). The essential changes made through the amendments are such that, to qualify under the rules, the undertaking (which has now been defined but was already previously covered) or business to be transferred is situated in Malta and that the economic entity retains its identity with the objective of pursuing an economic activity. Cross-border implications will also arise when an undertaking situated in Malta is transferred abroad.
Furthermore, a new proviso has been added whereby the conditions of employment of the employees affected by the transfer must remain unchanged during any kind of negotiations which could lead to a case of a transfer of an undertaking. The purpose of this additional clause is unclear since it only applies for the duration of the negotiations which, in turn, implies that the conditions of employment may still be changed under the consultation procedures catered for under article 8 of the Regulations, after such negotiations.
The newly enacted Annual Leave National Standard Order (L.N. 271 of 2018) will come into force as of 1 January 2019. Of the more notable changes, the new National Standard Order limits forced leave (such as shutdown and other forms which involve either the closure of whole or part of the premises) to not more than the equivalent in hours of twelve working days. The National Standard Order also puts an obligation on the employer to notify his employees of the exact dates of the shutdown by the end of January in each calendar year.
In addition to the above, the new National Standard Order now clearly stipulates that annual leave shall be availed on those days agreed upon between the employer and the employee and that any cancellations of booked leave need to be agreed between the said parties. Other changes reflect recent European decisions, including that annual leave continues to accrue during maternity, sick and injury leave. It is also specified that annual leave not availed of by the end of a specific calendar year shall be automatically transferred to the following calendar year when the employee is precluded from taking annual leave as a result of maternity, sickness or injury.
The National Standard Order also sets out that the balance of annual leave, including accrued annual leave; still pending upon termination is to be paid by the employer.
Last but not least, the Itemised Payslip Regulations (L.N. 274 of 2018) were also introduced. In an unprecedented move, the employer is now obliged to provide employees with an itemised payslip before or on the date when the wages fall due. It is interesting to note that these changes now provide a legal basis for the employer to collect certain data on their employees in terms of the GDPR. The items to be included on the payslips are as follows:
a) The name of the employer;
b) The name of the employee;
c) The address of the employer;
d) The employee’s designation;
e) The total wages paid and the breakdown thereof;
f) The number of normal hours worked;
g) The number of hours entitled at overtime;
h) The hours of annual leave availed of and the remaining balance;
i) The number of hours of sick leave availed of;
j) The basic wages received;
k) A breakdown of any bonuses, allowances or commissions received; and
l) Any deductions effected, including N.I contributions and taxes.