Due to the COVID-19 situation, several modes of operations had to be adjusted to ensure business continuity. Companies had to resort to temporary measures to continue with their operations. These exceptional circumstances raise many questions amongst the employers and their employees.
For this reason, we, at DWP Dr Werner and Partner have compiled some FAQs in light of the COVID-19 situation and Employment Relations.
Article 42 of the Employment and Industrial Relations Act (EIRA) holds that:
Unless in such case as is otherwise provided by this Act, if a contract of service between an employee and his employer or a collective agreement entered into between the employer and the recognised union representatives, provides for any conditions of employment, including conditions relating to the termination of the contract, less favourable to the employee than those specified in or under this Act, they shall have effect as if for those conditions less favourable to the employee there were substituted the conditions specified in or under this Act:
Provided that, in exceptional cases, the employer in agreement with the employee or union representatives may provide for different conditions of employment than those specified in or under this Act as long as such agreement is a temporary measure to avoid redundancies and as long as it is approved by the Director, which approval needs to be reviewed every four weeks.
As an employer can I change the conditions of work of my employees?
Yes, subject to permission.
The wage regulation orders cover the conditions of work including inter alia maximum hours of work, sick leave, minimum wages and overtime rates. Companies can file a written request to apply for permission from the Director General of Industrial & Employment Relations. Such request can be made to change applicable conditions of work on a temporary basis.
For more information read here: https://dier.gov.mt/en/About-DIER/Freedom%20of%20Information/Pages/Information-about-the-DIER.aspx.
As an employer can I change the conditions of work without informing my employees and representatives?
No, there should be an arrangement.
Measures are to be proposed after an agreement is reached between the employer and its employees and/ or representatives. Changes of conditions of work are considered as exceptional cases whereby the employer must agree with its employees to provide different conditions of employment. Different work conditions shall strive to reduce or avoid redundancies and are to be approved by the Director General of Industrial & Employment Relations.
With whom can an employer discuss alternative solutions if the employees are not represented by a Union?
The Employee (Information and Consultation) Regulations sets out the minimum requirements of Information and Consultation of Employees in line with EU Law. When alternative conditions of work are being proposed, all employees must be in agreement. An employer is to make the necessary arrangements to allow all employees to exercise their rights under the above-mentioned Regulation.
What can an employer propose as temporary measures in light of COVID-19?
COVID-19 is pandemic and thus it is considered as a force majeure situation. Employers can utilise pro-rata vacation leave, implement reduced working hours and many others.
Can I force my employees to take leave?
‘Forced Leave’ is a measure which can be utilised by the Employer. If the employer opts to enforce forced leave it shall be binding on the employer to justify such request based on the directives given by the Health Ministry as a result of the COVID-19 outbreak. The employer has to provide his employees with a written justification of why forced leave is being applied.
Is it allowed to reduce wages?
Unless expressly permitted by the provisions of the Employment & Industrial Relations Act, wages should not be deducted as per Article 15 of the above-mentioned Act.
Will the Government pay my wage?
The Covid Wage Supplement provides a basic wage to the employee which strives to address the disruption caused by COVID-19. Employers are to apply for schemes which they may be eligible for with Malta Enterprise.
For more information read here: https://covid19.maltaenterprise.com/employee-wage-support/?application-form-added.
Is it allowed to terminate employments based on Redundancy?
Under Employment Law, the Employer may only terminate a contract of employment on the basis of a good and sufficient cause, redundancy and retirement of employee. Where the employer plans to terminate the employment of an employee based on redundancy, the employer is required to terminate the employment of that person who was engaged last affected by such redundancy.
Do I need to give my notice if I am resigning?
Yes, employees would need to follow regulations stipulated in the EIRA regarding their notice periods. An employee can either work the notice period or can choose not to. If the employee chooses not to work such notice period, the employee would need to pay the employer a sum equal to half the wages of the unworked notice period.
What if I need more information?
The most important thing is that you Stay Safe, make sure you know your rights and that you strive to continue business as usual with no serious disruptions.