Employment and Industrial Relations Law

Q&As | Non-Standard Working Arrangements

31 Aug 2023

4 min read

Authors: Ann Bugeja & Christine Borg Millo

The Employment and Industrial Act, Chapter 452 of the Laws of Malta, briefly tackles the concepts of overtime and work during public and national holidays. It is important for employees working in Malta to be aware of their rights at law when they accept to work in excess of their normal hours of work, or else during a public or other national holiday.

The below are some Q&As which provide a better understanding of non-standard working arrangements (NSWAs) in an employment relationship.

Are there restrictions on working on Sundays and public holidays in Malta?

There are no restrictions to working on Sundays and/or public holidays. It is important that the law in respect of rest periods is observed by the employer, and employees shall be paid according to the applicable rates by law, defined hereunder.

Moreover, having effect from the first (1st) of January 2021, when national or public holiday falls on a weekend, individuals will be entitled to a day of vacation leave in addition to the ordinary leave entitlement for that year. A list of National Holidays and Public Holidays is provided in the National Holidays and Other Public Holidays Act, Chapter 252 of the Laws of Malta.

Is there a premium rate of pay for overtime work (outside contractual hours), night work, weekend and/ or public holidays? If yes, what is the rate?

The Act defines “overtime” as meaning any hours of work in excess of the normal   hours of work. Overtime rates are established in accordance with the applicable Wages Council Wage Regulation Orders (known as WROs; depending on the industry). However, should no WRO exist for that particular work, the Overtime Regulations, S.L. 452.110 provides that any employee who works any overtime as required by their employer, shall be compensated at a different rate, provided that the normal weekly hours together with the overtime will not exceed the forty-eight-hour threshold.

In fact, employees shall be paid one and a half (1.5x) times the normal rate for work carried out in excess of a forty (40) hour week, averaged over a four (4) week period, or over the shift cycle, at the discretion of the employer. The above shall not apply where the employee gives his consent in writing to work more than a weekly average of forty-eight (48) hours. The law does not differentiate between weekdays, Saturdays and Sundays and hence any hours worked on a Sunday, being in excess of forty hours, are paid at time and a half.

Does minimum prior notice that needs to be given when scheduling employees to work a ‘non-standard’ shift or on call arrangement, i.e. different hours to those in their contract?  If yes, what is that minimum period?

If the employee’s shift is pattern is entirely or mostly unpredictable, the worker shall not be required to work by the employer unless the work takes place within predetermined reference hours and days and the worker is informed by his employer of a work assignment within a reasonable notice period.

According to the Transparent and Predictable Working Conditions Regulations, S.L. 452.126, a reasonable notice period shall be not less than:

(i) Thirty (30) days for a work assignment having a duration of six (6) weeks or more;

(ii) Fifteen (15) days for a work assignment having a duration of more than two (2) weeks and up to five (5)weeks;

(iii) Seven (7) days for a work assignment having a duration  of  more  than  one  (1)  week  and  up  to  two  (2)weeks;

(iv) Three  (3)  days  for  an  assignment  having  a duration of between five (5) and seven (7) days; and

(v) One (1) day for an assignment having a duration of less than five (5) days.

Is there a legal risk if employees volunteer to work for a shift without signing an underlying addendum or agreement, assuming they have been provided with a copy of the company’s policy setting out the working and pay arrangements?  

There is no legal risk, as long as the ‘additional’ shift is included in the payslip when it comes to payment and reference to the time worked. However, it would always be best practice to ensure that all shifts are covered by an agreement or an addendum.

Concluding remarks

Overall, without an agreement between the employer and employee, which must explicitly include an acceptance of the terms of the NSWA, the employee cannot be forced to work, and the employer cannot impose a different work pattern and/or work schedule as conditions of employment on the employee. There must always be the consent provided by the employee and this applies to all employment relationships.