FAQs pertaining Employment and Industrial Relations in light of COVID-19

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?

You may con­tact us on info@drwerner.com or 21377700 should you require any fur­ther infor­ma­tion on the above or any infor­ma­tion regard­ing Gov­ern­ment Aid relat­ed to COVID-19.

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.

About Dr. Rebecca Mifsud

Dr Rebec­ca Mif­sud, born 6th May 1994, attend­ed the Uni­ver­si­ty of Mal­ta and is an LLB Hon­ours grad­u­ate. She also grad­u­at­ed in the Mas­ters in Advo­ca­cy and will be sit­ting for her Mal­ta War­rant Exam in 2019. She suc­cess­ful­ly defend­ed her dis­ser­ta­tion enti­tled: ‘Imput­ing respon­si­bil­i­ty for foot­ball injuries inflict­ed by minors in the Mal­tese sce­nario,’ in 2017.

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