Sources of Labour Law
Sources of Labour Law
The hierarchy of legal sources of Maltese labour law can be generally broken down as follows:
The most notable of these primary legislative sources include the following:
- The Constitution of Malta;
- The Employment and Industrial Relations Act (EIRA) – Chapter 452 of the Laws of Malta;
- The Employment Commission Act – Chapter 267 of the Laws of Malta;
- The Employment and Training Services Act – Chapter 594 of the Laws of Malta; and
- various EU Regulations and Directives which apply in virtue of the doctrine of direct effect.
These include subsidiary regulations which stem from the EIRA, the majority of which serve to implement EU regulations and directives, and which flesh out the basic legal framework provided by the EIRA. These include Wage Regulation Orders (WROs) which represent administrative regulations regulating certain conditions of employment for specific sectors, including the Construction Industry, for Hospitals and Clinics, for Seamen, and for Travel Agencies. At present, there are 32 different WROs in force. The conditions specified in these Orders include inter alia maximum hours of work, minimum wages, overtime rates, sick leave and special leave.
Public Service Management Code
Members of the public service and all public officers have their conditions of employment regulated by means of the Public Service Management Code (PSMC) which was introduced in 2002, to replace the EstaCode. The PSMC brings together all the standing regulations, circulars, policies on HR Management, in the fields of Employee Relations and Resourcing in the Public Service. This code falls within the competence of the Management and Personnel Office (the former Establishments Division) within the Office of the Prime Minister.
These are freely decided, enterprise-specific written agreements which regulate the conditions of employment of around a third (1/3) of the total gainful employment in the private sector. Collective agreements possess a contractual status, they may deviate from the general rules and practices stipulated in the main legislation and are particular to, and apply only, to that given private sector for any job, profession or branch. In fact, they are normally incorporated into the contract of employment of that employee within the specific private sector in question.
A collective agreement is defined and regulated under EIRA as being an agreement which is entered into between an employer, or one or more organisations of employers, and one or more organisations of employees, where the agreement would include specific terms and conditions agreed upon between the parties on employment, in accordance with current legislation.
The conditions of employment prescribed in the agreement are similar so any other employment contract, thus regulating various clauses such as working time and rest periods, wages, vacation and other leave entitlement, training and discipline.
Where employment conditions are prescribed in a collective agreement, the employer or employees who are a party thereto, have fifteen (15) days from when it is signed, to send a copy to the Director of Employment and Industrial Relations.
No collective agreement can stipulate conditions less favourable than those listed in Maltese law, therefore they may only prescribe for more favourable conditions that those minimum recognised conditions of employment. Moreover, no hierarchy of levels exists among different collective agreements and neither are they subject to superior standards.
Judicial Decisions, Arbitration awards, Custom and practice
These all serve as a source of law in circumstances where the law is silent.
Most, if not all, trade disputes are heard and decided by the Industrial Tribunal – a juridical Tribunal of a chairperson acting alone in cases of unfair dismissal of an employee, or else the chairperson and two other members for any other Industrial Dispute.
A Trade Dispute is a dispute between employers and workers, or between workers and workers, which is connected with any one or more of the following matters:
(a) terms and conditions of employment, or the physical conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more workers;
(c) allocation of work or the duties of employment as between workers or groups of workers;
(d) matters of discipline;
(e) facilities for officials of trade unions;
(f) machinery for negotiation or consultation, and other procedures, relating to any of the foregoing matters, including the recognition by employers or employers’ associations of the right of a trade union to represent workers in any such negotiation or consultation or in the carrying out of such procedures;
(g) the membership or non-membership of a worker in a particular trade union.
The Industrial Tribunal is set up and regulated by EIRA under Title II. No application fee or court fees are payable however, in cases of unfair dismissal, the Tribunal may award compensation payable to the employee.
Additionally, the Department of Industrial and Employment Relations encourages out-of-court settlement of trade disputes, namely through mediation and conciliation. Where a trade dispute exists or is apprehended, the parties may agree to refer the dispute to the Director of Employment and Industrial Relations, to a conciliator chosen by the parties or else, when in disagreement, by the Director from amongst the conciliation panel appointed under the EIRA. Only when in deadlock is the case transferred to the agenda of the Industrial Tribunal.