Updated at 6.30pm - Legal notices suspended
Changes to vacation leave regulations have been suspended just days after coming into effect, following uproar by employers’ associations.
In a statement, the Equality Ministry said it would be suspending legal notices related to changes to work conditions and going back to the negotiating table “as a sign of goodwill”.
The climbdown came hours after all four employer lobby groups announced a boycott of Employment Relations Board meetings.
The revised system allowed annual leave allotment to continue to accrue even when employees were on maternity, sickness or injury leave and even when on unpaid leave.
Moreover, the new regulations stated that, once granted, leave could not be revoked under any circumstances whatsoever. Also, employers could only utilise up to 12 working days from the annual leave entitlement for the shutdown period.
Employers reacted furiously to the changed laws, saying they would result in higher payrolls, and on Tuesday evening the government said the Industrial Relations Department would be suspending legal notices "related to work condition", which it insisted has been discussed with social partners prior to coming into force.
Employment and industrial relations lawyer Ian Spiteri Bailey raised the matter in an opinion piece appearing on Times of Malta.
Apart from vacation leave, he also focused on new payslip regulations enacted concurrently. The changes came into force through legal notices 371 and 374 of 2018 published on August 10.
Dr Spiteri Bailey questioned the level of consultation with the social partners on the changes, expressing concern on several aspects.
The regulations could place employers in a straightjacket, especially the provision that leave could not be revoked, he told this newspaper.
“While workers have the right for emergency leave, there is no such provision to cater for exceptional cases whereby employers could risk seeing their company grind to a halt due to a sudden shortage in their workforce. This might give rise to a situation whereby there is no level playing field,” he warned.
A situation whereby there is no level playing field
Dr Spiteri Bailey also raised questions on the new rules about payslips.
“Will employers be given a transitional period to include the added information that is now required by law to appear in the payslip? What will happen if some data is missing? Will the employer be liable to a fine for every single worker on his books,” he wondered.
The Malta Employers Association’s director general, Joe Farrugia, expressed himself surprised with the changes.
He recalled that employers had already objected to the government’s pledge to compensate public holidays falling on a weekend with an additional day of leave but they had other concerns too.
“It is not fair that workers keep accruing vacation leave when they are not reporting for work, say during maternity leave, when sick or even when they are on unpaid leave,” he said.
He said the matter would be raised at the next meeting of the Employment Relations Board, adding he did not recollect debating the new regulations within this entity.
On the other side of the spectrum, the General Workers’ Union lauded the government’s move and insisted the measures were debated as part of a broader set of proposals within the ERB.
The amendments addressed loopholes, grey areas and issues we had been flagging for years, a spokesman said.
The union was continuously being consulted by the government authorities and national organisations on various subjects, he said.
“A case in point are the proposals we put forward to eradicate precarious employment, the issue of public holidays falling on a weekend and the European Directive on the posting of workers,” the spokesman continued.
Questions on timing and consultations leading to the changes were raised by UĦM Voice of the Workers CEO Josef Vella.
Noting that the regulations seemed to be skewed towards workers, he said that no such debate had been held recently within the ERB, at least since the start of this year.
“I would have expected a draft of these legal notices to be circulated in advance rather than have these changes enacted like a bolt from the blue,” he said.
The Ministry for European Affairs and Equality, which published the regulations, insisted that, apart from the Employment Relations Board, the changes had also been on the agenda of a national public conference.
Reacting to the employers’ criticism that the leave regulations would increase costs, a ministry spokesman noted that the measures were necessary to ensure that national laws were in line with decisions made by the European Court of Justice.
Amendments addressed loopholes and grey areas
Asked if there would be a transitional period for companies that do not adhere to all payslip regulation requirements, the spokesman said the Department of Industrial and Employment relations always warned non-complying employers in advance before taking action.
However, he was rather evasive when asked to clarify whether companies in breach would be slapped with a global amount or a cumulative sum for every employee on its books. The spokesman merely referred this newspaper to the legal notice saying those found guilty would have to pay a fine.
As for the possibility of the employers being empowered to revoke leave in exceptional circumstances, the spokesman said the right to urgent family leave, amounting to 15 hours a year, was stipulated by subsidiary legislation (452.88).
The four employers associations - the Malta Chamber of Commerce, Enterprise and Industry, the MEA, the GRTU and the Malta Hotels and Restaurants Association - said they would boycott meetings of the Employment Relations Board until the situation was rectified.
"These legal notices were introduced without the knowledge of or any form of consultation with employer bodies on the eve of Sta Marija, a period commonly associated with shutdowns," they said in a joint statement, describing the legal notices as having been introduced "by stealth".
"What is the point of having a body like the ERB in the first place if normal procedure is not followed and the authorities are introducing legal notices without prior consultation?"
New vacation leave regulations
As from January 1, 2019, unless otherwise agreed in any applicable collective agreement, the employer may only utilise up to the equivalent of 12 working days from the annual leave entitlement for the purposes of any type of shutdown, including temporary closure of whole or part of the premises by the employers for bridge holidays or any other short periods of shutdown. Such period must be communicated to employees by the end of January.
Once leave from the annual entitlement has been agreed to by the employer and employee, it can only be cancelled if both sides agree.
Annual leave shall continue to accrue in favour of an employee during the period when they are on maternity, injury or sick leave. Such provision may apply irrespective of whether this leave is fully paid, partially paid or unpaid.
When a public or national holiday falling on a day of work or on a weekly day of rest, not being a Saturday or a Sunday, falls within the period of maternity leave, the employee shall be entitled to the equivalent hours of an additional day of annual leave.
Any period of pre-arranged leave coinciding with a period of maternity, sickness or injury leave shall be carried to the subsequent year if such leave could not be availed of during the same year.
In case of termination of employment, all the leave accrued during a period of maternity leave, sickness or injury that had not been availed of, must be paid in accordance with the Organisation of Working Time Regulations.
Any person who contravenes these provisions is liable to a fine of up to €465.
New payslip regulations
The employer shall be bound to give his employees an itemised payslip either before or on the date when wages are due.
The itemised payslip must contain, among other things, the total wages paid, the number of normal and overtime hours worked and the respective pay rates for Sundays or public holidays if applicable, the annual leave and sick leave balance to date for that calendar year and any breakdown of any bonuses, allowances and commissions received.
Any deduction affected, including national insurance contribution, tax and others, must be included.
If the payslip is not given, employers must present proof which exculpates them from any liability beyond reasonable doubt.
Employers contravening these regulations could be liable to a fine of between €500 and €1,165.
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