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19 September 2018
On the eve of the August Santa Maria festivities, as most were on summer break, four new legal notices affecting employment laws in Malta were published in the Government Gazette.
If enacted, these notices will introduce amendments to the Temporary Agency Workers Regulations (SL.452.106) and the Transfer of Business (Protection of Employment) Regulations (SL.452.85) and enact a new Annual Leave National Standard Order (LN 271/2018) and new Itemised Payslip Regulations (LN 274/2018).
The publication of the legal notices came as a surprise to many. Some of the notices did not even contemplate a transition period, requiring immediate compliance by employers to avoid criminal prosecution. This fuelled debate and concern among the industry, not least because of the lack of consultation with key stakeholders.
Then on 22 August 2018 a ministry representative reportedly declared that the legal notices would be "suspended". However, no legislative or formal act to suspend or withdraw the notices has yet been published.
Whether the notices must be considered as law and enforceable before the Maltese tribunals and courts is now the subject of debate. Legal notices are subsidiary laws drafted and brought into force by the minister in accordance with the enabling powers vested in the primary legislation, in this case Chapter 452 of the Laws of Malta. For such notices to become law, no parliamentary debates or motions are required for their enactment, as would be the case for the enactment of primary legislation. However, the Interpretation Act (Chapter 249 of the Laws of Malta) mandates that a legal notice must laid before the House of Representatives (Parliament) for 28 days. If a motion to annul (or amend) the legal notice is raised and passed during that period, the notice will cease to have effect (or be amended) accordingly. Presently, it is unclear whether the four notices in question were laid before Parliament, despite their publication in the Government Gazette and despite them appearing on the list of newly enacted legal notices found on the Ministry of Justice's portal.
Setting this procedural issue aside, it is clear that the government intends to introduce some piecemeal changes to Maltese employment law on matters that will affect employers significantly, including new rules on payslips that all employers – irrespective of size – must issue and new limitations on holiday leave arrangements. The notices also contemplate new restrictions on employment conditions in the context of transfers of business and significantly alter the underlying principles regulating temporary agency workers.
Whether the government will go through with these changes in their current format is yet to be seen. At this stage, employers must be aware of the potential changes. Although at face value they appear to be straightforward laws, the notices give rise to some pertinent legal questions that deserve some form of consultation – if not from a policy perspective, then at least from a legal drafting perspective.
A commentary on the proposed changes to the Temporary Agency Regulations can be read here.
For further information on this topic please contact Paul Gonzi at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email (firstname.lastname@example.org). The Fenech & Fenech website can be accessed at www.fenechlaw.com.
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