Four new Legal Notices have brought about amendments to existing employment laws and regulations, introducing new provisions regulating the respective rights and duties of employees and employers.
Introduced on the 10th of August 2018, these Legal Notices regulate aspects related to annual leave entitlement, the issue of itemized payslips, transfer of business, and temporary agency workers.
The Government has recently suspended these legal notices to give way to further discussions with interested stakeholders.
Annual Leave
Possibly the most significant Legal Notice of the four is Legal Notice 271 of 2018 – The Annual Leave National Standard Order, which presents the minimum requirements related to the entitlement of annual leave in terms of the Organisation of Working Time Regulations. As from the 1st of January 2019, unless otherwise agreed to in any applicable collective agreement, the employer may only utilize up to the equivalent in hours of twelve working days from the annual leave entitlement, for the purposes of any type of shutdown, including a temporary closure of whole or part of the premises by the employer for bridge holidays or any other short periods of shutdown.
Any type of shutdown shall be communicated to all the employees by the end of January of each calendar year.
This new restriction will require employers to plan their shutdown and other closures in advance and to give employees notice in advance of these planned periods of shutdown.
Also significant is the newly introduced provision that once leave from the annual leave entitlement of the employee has been agreed to by the employer and the employee, such leave can only be cancelled upon agreement between both the employer and the employee. An exception to this rule applies in the case of pre-arranged leave coinciding with a period of maternity, sickness or injury leave, which shall be considered as not having been availed of but shall be availed of after the return to work or carried on to the subsequent year if such leave could not be availed of during the same year.
Annual Leave Entitlement during Maternity, Sickness and Injury Leave
Legal Notice 271 of 2018 has also clarified the legal position with regards to entitlement to annual leave in the case of employees who are on maternity leave, sickness or injury leave. It provides that annual leave shall continue to accrue in favour of an employee during maternity leave and any balance of annual leave unavailed of by the end of the calendar year shall be automatically transferred to the next calendar year when it has not been possible for the employee to avail herself of such leave during the same year when the maternity leave commenced. The same rules are applicable in the case of sickness or injury leave.
Public Holidays
The Legal Notice also provides that 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 a period of maternity leave of any employee, such employee shall be entitled to the equivalent in hours of an additional day of annual leave.
Annual Leave and Termination of Employment
Where the employment relationship is terminated for whatever reason, all the balance of annual leave, including that annual leave which had accrued during a period of maternity leave, a period of sickness or during a period of injury but which had not been availed of, must be paid for by the employer.
Consequences of a breach
Any failure by the employer to comply with the requirements of this Legal Notice will render the employer guilty of a criminal offence, subject to a minimum fine of €465. Besides such penalty, the court shall also impose an obligation on the employer to grant any annual leave not availed of and accrued in any previous years or to pay a sum equal to the said annual leave if the employee is no longer in the employment of the employer.
Itemisation of Payslips
Legal Notice 274 of 2018 has introduced specific obligations on employers regarding the issue of payslips to employees. In terms of this legal notice employers have a legal obligation to give to employees an itemised payslip either before or on the date when the wages are due, which payslip must contain all the information as prescribed by the Regulation, including the number of normal hours worked, including those worked on Sunday or on a public holiday when this is part of the scheduled normal hours, the number of hours entitled at overtime or special rate broken down into those in excess of normal daily or weekly hours, hours worked on a Sunday or on a public holiday, the number of hours of annual leave availed of and any remaining balance, the number of hours of sick leave availed of during a calendar year, the basic wages received, a breakdown of any bonuses, allowances or commissions received and any deductions effected, including national insurance contributions, tax and others.
Failure to observe these regulations would render the employer liable to a criminal offence subject to a fine of not less than €500 and not more that €1,165, and the regulations also depart from the standard burden of proof required in criminal proceedings, by shifting the burden of proving compliance on the employer. The regulations also provide that if two payslips relating to the same period are presented to the Director for the Employment and Industrial Relations Department or before a court of law, the payslip which prevails shall be that which is more favourable to the employee.
Temporary Agency Workers
Legal Notice 272 of 2018 – Temporary Agency Workers (Amendments) Regulations – amends the Temporary Agency Workers Regulations which came into force in 2010. The fundamental change from which one can say all other related changes stem is in the very definition of an agency worker. Before this amendment was introduced, only a person who was considered to be temporarily working under the supervision and direction of the temporary work agency was considered to benefit from the rights brought about by the Regulations. Through these amendments, a temporary agency worker is now considered to be any worker who has entered into a contract of employment or an employment relationship with a temporary work agency and who is assigned, whether on a regular or an irregular basis, to a user undertaking to work temporarily at the place of work of such undertaking.
Equal Pay for Agency Workers
Furthermore, the principle of equal pay for agency workers has been broadened. Prior to these amendments, there was no obligation to provide for equal pay between the user undertaking’s workers and agency workers when the temporary agency worker had an indefinite contract of employment/relationship with the agency and was paid between assignments by the agency. This limitation to the equal pay principle has been removed. Equal pay is not applicable for the first four weeks of the assignment, irrespective of the duration. If the worker is replaced at any time by another agency worker, even if during the first four weeks, the replacement is entitled to equal pay from the first day.
Transfer of Business
Legal Notice 273 of 2018 – Transfer of Business (Protection of Employment) (Amendment) Regulations, first redefined terms such as “transfer”, “transferee” and “transferor”, and later introduces a new proviso, which states that during negotiations leading to a transfer, there can be no changes to the conditions of employment of the employees affected by the transfer. The amendments introduced by this legal notice amend the Transfer of Business (Protection of Employment) Regulations.
Employment law is a dynamic and ever-evolving area of law and thus we expect to see further developments. For more information on these amendments or related matters kindly contact Dr. Rita Mifsud any one of our members practicing in employment law.