Posting of Workers

 

  

All posted employees are entitled to receive equality of treatment as the comparable employees and have equal access to employment rights and health and safety rights under Maltese law.

 

The conditions of work which are given to posted employees while working in Malta shall not be less than the minimum conditions of work that are generally applicable by virtue of the law, to a comparable employee employed in the same place of work. Such minimum conditions include:

• Maximum work periods and minimum rest periods as applied to various classes of employees;​

• Minimum paid annual holidays as applied to various classes of employees;​

• Remunerati​on, including overtime rates as applied to various classes of employees;​

• Equality of treatment between men and women and other provisions of non discrimination in accordance with the laws of Malta;

• Protective measures with regards to terms and conditions of employment protecting pregnant women or women who have given birth a short while before;

• Protective measures in accordance with the laws of Malta with regards to terms and conditions of employment protecting children and young people;

• Measures in accordance with the laws of Malta relating to health, safety and hygiene at work;

• The conditions of hiring out of workers, in particular the supply of workers by temporary employment undertakings

• The conditions of workers' accommodation where provided by the employer to workers away from their regular place of work.

• Allowances or reimbursement of expenditure to cover travel, board and lodging expenses for workers away from home for professional reasons during the posting assignment. 

 

In July 2020, Malta transposed Directive (EU) 2018/957 (28 June 2018) which amends Directive 96/71/EC (the main directive on posted workers).  This has been effected by an amendment to the Posting of Worker in Malta Regulations (SL452.82). Apart from widening the concept of equality of treatment so as include remuneration instead of pay, the posted worker’s right to accommodation where applicable and the posted worker’s right to allowances or reimbursement of expenditure to cover travel, board and lodging expenses, the new provisions lay down the rules on long term postings and posted workers who are also temporary agency workers.

Long Term Postings

As from 30th July 2020, where the effective duration of posting exceeds 12 months, or 18 months in case a motivated notification is submitted, all the applicable terms and conditions of employment of Malta, as the host Member State must apply. The only two exceptions are dismissal and supplementary occupational retirement pension schemes. 

Posted workers who are also temporary agency workers

With regard to posted workers who are also temporary agency workers, they are to be treated the same way as workers hired-out by temporary-work agencies established in the Member State where the work is carried out as per Directive 2008/104/EC on temporary agency work implemented by Temporary Agency Workers Regulations (S.L.452.106). It is also clarified that, in case of a chain posting, the temporary agency is deemed to have made the posting as it is the employer of the posted worker. 

The new rule on posted workers who are also temporary agency workers effectively means that for the first time, these kinds of posted worker (who are also temporary agency workers)  are now benefitting  from the conditions of employment laid down in collective agreements reached at enterprise level in terms of law.

While carrying out work in Malta an employee being posted from an EU/EEA country is not required to apply for a working licence in Malta. In the case of a third country national (TCN) employee who is employed by a posting undertaking that is established in an EU/EEA country, there is no need to go through a working licence procedure in Malta if such posted worker already holds a working licence issued in the country where the posting undertaking is established.

For any foreign national who is posted in Malta by an undertaking established outside an EU/EEA country, a working licence is required to be issued by Jobsplus.

In any case of a posting in Malta, the undertaking posting the worker to Malta is obliged to notify the Director of Industrial and Employment Relations (DIER) of its intention to post a worker to Malta. A 'Notification of a Posted Worker to Malta' form, prepared for such purpose. The Notification Form accompanied with a copy of the posted worker’s employment contract (with the posting undertaking) and, in the case of a TCN posted employee from an EU/EEA country, also with a copy of his existing working licence, should reach Department of Industrial and Employment Relations prior to the commencement of the posting. The undertaking making use of the services of the posted worker is obliged to keep a copy of such Notification Form at the place of work for monitoring purposes by the inspectors of the DIER. 

 

When a posted employee alleges that he has been treated in a manner which infringes any right conferred on him by the Posting of Workers in Malta regulations, such employee may submit a written request to the employer to provide him with a written statement in which shall be listed the reasons, if any, for any difference in treatment and such statement shall be provided by the employer within ten days from the date of the request. 

 

Without prejudice to any other right regarding the institution of proceedings in another state, a posted worker has the right to institute proceedings in the courts of Malta to safeguard any right granted to him by virtue of the Posting of Workers in Malta Regulations.

Where there is a subcontracting chain, the posted worker can hold the contractor of which his employer is a direct subcontractor, civilly liable in addition to or in place of the employer.                                                          

 

In case of queries regarding the posting of workers, kindly write us on [email protected].                                   

*Unless otherwise stated, whenever the masculine gender is used, both men and women are included. 

• Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services​

• Directive(EU) 2018/957 of the European Parliament and of the Council of 28June 2018

 

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