Who is a Posted Worker in Malta?

As per S.L. 452.82, a Posted Worker is defined as a worker who, for a limited period, carries out their work in the territory of a Member State (such as Malta) other than the state in which they normally work. This means that a worker employed by a foreign undertaking (from another EU/EEA country or a third country) is temporarily assigned to perform work in Malta.

Key Points:

  • A posted worker is employed by a foreign undertaking but temporarily works in Malta, under the direction of their employer.
  • The posting is temporary and typically lasts for a set period of time, after which the worker will return to their home country.
  • The posted worker must maintain their employment relationship with the foreign employer during the period of posting.

Eligibility Criteria

The Posting of Workers in Malta Regulations apply to foreign undertakings that:

  • Send posted employees to Malta on their own account and under their direction, under a contract concluded between the undertaking making the posting and the party for whom the services are intended, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting.
  • Send posted employees to an establishment or undertaking in Malta owned by the foreign undertaking, provided there is an employment relationship between the undertaking making the posting and the worker during the period of posting.
  • Temporary employment agencies or placement agencies that hire out workers to an undertaking in Malta, provided there is an employment relationship between the temporary employment undertaking or placement agency and the worker during the period of posting.

Equality of Treatment

All posted employees are entitled to equality of treatment as comparable employees and have equal access to employment rights and health and safety protections 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.
  • Remuneration, 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 regarding terms and conditions of employment for pregnant women, women who have recently given birth, children, and young people.
  • Health, safety, and hygiene standards at work.
  • Conditions regarding the hiring out of workers by temporary employment undertakings.
  • Accommodation conditions where provided by the employer for 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.

New Provisions (Post-July 2020)

In July 2020, Malta transposed Directive (EU) 2018/957, which amends Directive 96/71/EC (the main directive on posted workers). These amendments broaden the concept of equality of treatment to include remuneration (instead of pay), the posted worker’s right to accommodation where applicable, and the right to allowances or reimbursement of expenditure to cover travel, board, and lodging expenses.

Key Changes:

  • Long-Term Postings: When the effective duration of a posting exceeds 12 months (or 18 months with a motivated notification), all the applicable terms and conditions of employment under Maltese law must apply. The only two exceptions are dismissal and supplementary occupational retirement pension schemes.
  • Posted Temporary Agency Workers: Temporary agency workers posted to Malta are now entitled to the same conditions of employment as those employed by temporary work agencies in Malta.

Notification Process

When posting a worker to Malta, the foreign undertaking is obliged to submit a notification to the Department of Industrial and Employment Relations (DIER). This notification confirms the intention to post a worker to Malta and ensures the necessary details are available for factual controls at the workplace.

What to Submit:

  1. Complete the Notification Form: Ensure all relevant details are provided.
  2. Submission Timing: Submit the notification prior to the commencement of the posting or at the latest on the first day of posting.
  3. Acknowledgment: Once the notification is submitted, you will receive an acknowledgment confirming the receipt of the required details.

What Should the Notification Include?

As per S.L. 452.82, the notification should include the following details:

  • Identity of the Service Provider.
  • Address in the Country where the worker habitually carries out their work.
  • Anticipated Number of Posted Workers.
  • Name, Date of Birth, and Nationality of each posted worker.
  • Contact Person(s) as required under Regulations 6(6) and 6(7) for liaising with the competent authority.
  • Anticipated Duration: The envisaged beginning and end date of the posting.
  • Nature of Services Justifying the Posting: Including the type of work to be carried out.
  • Name and Address of the Undertaking in Malta to which the worker is to be posted.

The notification should be submitted prior to the posting or at the latest, on the first day of posting. You must also keep a copy of the notification at the workplace in Malta for monitoring purposes.

Retention of Documentation

The service provider is required to retain all relevant documentation related to the posting, including employment contracts, payslips, time-sheets, and proof of wage payments, in accordance with S.L. 452.82, Regulation 6(3). These documents must be available for inspection by the authorities upon request.

Administrative Measures and Control

In cases of irregularities or suspected non-compliance, the competent authority in Malta may request information from the Member State of establishment, conduct inspections, and take enforcement actions. This includes the obligation to provide requested documents within a reasonable time frame.

Subcontracting Liability:
In cases of a subcontracting chain, posted workers may hold the contractor, or their direct subcontractor, jointly and severally liable for non-compliance with their rights under the regulations.

Defence of Rights:
If a posted worker believes their rights under these regulations have been infringed, they can request a written statement from the employer. If no satisfactory response is received, the worker has the right to initiate proceedings in the courts of Malta.

Cross-Border Enforcement of Penalties

Malta is part of a system that allows the cross-border enforcement of financial administrative penalties and fines related to non-compliance with the Posting of Workers Regulations. This means that if a foreign undertaking is found to be non-compliant in Malta, penalties can be enforced through collaboration with the competent authorities in other EU Member States.

Relevant Links

Queries

For any questions regarding the posting of workers, please contact us at [email protected].

Disclaimer

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