Directive 2019/1152 on transparent and predictable working conditions (the “Directive”) was transposed into Maltese law on the 21 October 2022, pursuant to Transparent and Predictable Working Conditions Regulations (the “Regulations”).
The purpose of the Directive is to provide additional protection and certainty to employees, through adequate information and protect workers in precarious jobs.
Commissioner for Jobs and Social Rights, Nicolas Schmit described the directive as “a direct response to the fast-changing reality of our labour markets” which necessitates more complete information about workers’ conditions of employment and more predictability in their day-to-day lives.
This is perfectly sensible and objectively reasonable, however both employers and employees in Malta were in for a far less reasonable restriction imposed through the Regulations.
Indeed, the Regulations purport to preclude modifications to the conditions of employment after the commencement of employment, unless this is consequent to a change in law, pursuant to a collective agreement or changes agreed to with employee representatives and approved by the Director General for Employment and Industrial Relations, in terms of Article 42 of the Employment and Industrial Relations Act. A subsequent provision then ‘clarifies’ that the Regulations do not preclude the introduction and implementation of provisions that are ‘more favourable to protection of workers.’
Needless to say, there is no provision in the Directive which could remotely lead to the same outcome as this restriction in the Regulations. Quite the contrary, Article 6 of the Directive presumes modifications to conditions of employment, requiring only that, where relevant, information on the modified conditions is provided to the employee, on or before the day on which the modifications are effective.
In these few months there have already been too many instances where this infamous restriction has virtually stalled, and invariably delayed, sizeable commercial transactions.
The same difficulties were faced by employers and employees who genuinely wish to modify the terms of their relationship. How does one go about qualifying a provision as being more favourable to the protection of the employee where, for example, it relates to a lateral move, or a request to reduce or increase hours of work?
We have recently seen the concept of mandatory unionisation of employees being floated, only to be quickly shot down. Is this a further attempt at reintroducing the concept indirectly, to allow modifications to conditions of employment only where a workplace is unionised?
What this undoubtedly translates to, is a restriction to the right to contract, without interference, and to engage in economic activities freely and voluntarily – all in a jurisdiction where contracts validly entered into have the force of law between the parties.
Even though, unlike in certain other jurisdictions, the freedom of contract is not explicitly recognized and protected by the constitution, it may certainly be inferred from other constitutional provisions, such as the protection of property rights and the State’s encouragement of private economic enterprise.