Brussels warns Malta again

Malta has two months to change the law on the provision of parental leave or risk being taken to the European Court of Justice.

The European Commission said Malta's transposition of the directive on parental leave was not in line with EU law and was too broad, leaving the possibility open for employers to negate such right to parents.

The Commission said in a reasoned opinion, the second stage of legal action, that Malta had to change its law as soon as possible to close the loopholes.

The government was looking into the issue and studying possible amendments. However, it did not fully agree with the Commission's interpretation, a spokesman said.

As Maltese law stands, an employer can postpone granting parental leave for justifiable reasons, in cases where business is a small enterprise employing no more than 10 people and if a request is made for additional time off in the first six months after the maternity leave has been used up.

However, the Commission felt that the two provisions exceeded what was allowed under the directive:

"The size of the business is not a temporary factor, which will change with time. Therefore, an employer could refuse parental leave indefinitely, thus undermining the aim of the directive," the Commission said.

It added: "In the second case, the exception is not within the remit of the directive and it also leads to discrimination on grounds of sex because only women can be affected by this provision."

Although admitting the transposition was not perfect, so much so that the second complaint on possible gender discrimination had already been rectified through amendments in the law, the government is not accepting the Commission's interpretation on the size of businesses.

"While the government maintains that the regulations provide a sufficient safety valve in favour of employees' rights to avail themselves of this entitlement in case the employer decides to postpone their request for parental leave on the basis of justified reasons, it is considering ways of ensuring that the exclusion of employees in the micro-enterprises from their right to parental leave would not be possible," a government spokesman said.

The EU directive gives legal effect to the first social partners' agreement at European level dating from 1995 and providing for the individual right of workers, men and women, to parental leave on the grounds of the birth or adoption of a child for at least three months.

This right should, in principle, be granted on a non-transferable basis, although many member states, not Malta, have allowed parental leave entitlements to be transferred from one parent to the other, which in practice saw mothers taking longer parental leave than fathers.

The directive ensures that workers taking parental leave are protected against dismissal. They are also assured of the right to return to the same or an equivalent job and to retain employment rights during parental leave.

Though the infringement procedure against Malta is on the 1995 directive, the rules are set to change to provide added incentives.