As a rule, the conditions of employment should be laid down in a contract of employment. The Employment and Industrial Act, Chapter 452 of the Laws of Malta, define a ‘contract of employment’ or a ‘contract of service’ as:
“…an agreement, (other than service as a member of a disciplined force except as may be provided in or under this Act) whether oral or in writing, in any form, whereby a person binds himself to render service to or to do work for an employer, in return for wages, and, in so far as conditions of employment are concerned, includes an agreement of apprenticeship.”
Who are the parties to a contract of employment?
The parties to a contract of employment are the employer and the employee. In the case of a collective agreement the parties on the collective agreement are the employers and a union representative who shall represent the employees on the agreement.
What is the difference between a definite and indefinite contract of employment?
A condition which must be stipulated in the contract of employment is the period of employment. A contract of employment can be either for a definite duration or an indefinite duration. A definite duration requires there to be a starting date and a termination date, while an indefinite duration the term of employment will be without a limit.
There should be no difference in the conditions of the employment for a fixed or indefinite contract of employment. In other words, a fixed term contract cannot have less favourable conditions when compared to the conditions found in the same contract of employment for an indefinite duration. It is only possible for there to be a differentiation if there are justified objective grounds. This does not apply for contracts of employment which relate to initial vocational training or apprenticeship schemes.
When can a definite contract change to an indefinite contract of employment?
Any employee on a fixed term contract of service whose contract has expired and is retained by his employer shall be deemed to be retained on an indefinite contract if the said employee is not given a new contract of service within the first twelve (12) working days following the expiry of the previous contract.
A fixed term contract can be renewed. The renewal can be up to a maximum period of four (4) years. Upon the expiration of this period the employee is considered to be under a contract of an indefinite duration. This shall be the case provided that there are no justified exceptions for this not being the case.
When can an indefinite contract change into a fixed contract of employment?
When there is no substantial change to the work of the employee or to his category then a contract of employment for an indefinite term will not change into a fixed term contract.
No agreement can be reached for the indefinite contract to change into a definite contract. Moreover, the indefinite contract will retain its effect.
What is a Collective Agreement?
The Employment and Industrial Relations Act defines a collective agreement as:
“an agreement entered into between an employer, or one or more organisations of employers, and one or more organisations of employees regarding conditions of employment in accordance with the provisions of any law in force in Malta.”
Normally, the collective agreement is the final product of collective bargaining between the employer and the union representation.
The party who represents the employee collectively is the Trade Union. A trade union is “an organisation consisting wholly or mainly of workers and of which the principal purpose is by its rules the regulation of relations between workers and employers or employers’ associations.” It is important that the trade union is registered in accordance with the Employment and Industrial Relations Act.
Can there be no contract of employment?
Although the rule is that an employment relationship should be regulated by a contract of employment there are exceptions to this rule. These exceptions arise when:
- the duration of the employment relationship is not more than one (1) month, or
- the working hours do not exceed eight (8) hours per week, or
- the employee has been employed for a specific defined task, on condition that the non-application is justified by objective considerations.
However, when no written contract of employment has been signed the employer shall be obliged to provide the employee a letter of engagement or a signed statement by not later than eight (8) working days from commencement of the employment. This letter of engagement or signed statement must include the following:
(a) the name, registration number and registered place of business of the employer and a legally valid identification document number, sex and address of the employee and the place of work (if the place of work is not fixed then it should be stated that the employee will be employed at various places together with the registered place of business. If, however, there is no registered place of business, the domicile of the employer is to be stated);
(b) the date of commencement of employment;
(c) the period of probation;
(d) normal rates of wages payable;
(e) the overtime rates of wages payable;
(f) the normal hours of work;
(g) the periodicity of wage payments;
(h) in the case of a fixed term contract of employment, the expected or agreed duration of the contract period;
(i) the paid holidays, and the vacation, sick and other leave to which the employee is entitled;
(j) the conditions under which fines may be imposed by the employer;
(k) the title, grade, nature or category of the work for which the employee is employed;
(l) the notice periods to be observed by the employer and the employee should it be the case;
(m) the collective agreement, if any, governing the employee’s conditions of work; and
(n) any other relevant or applicable condition of employment: Provided that if any of the above information is regulated by any law, regulation, national standard order, sectoral regulation order or collective agreement, the information may, where appropriate, be given in the form of a reference to the laws regulations, orders or collective agreements governing that same information.
If any of the above information is regulated by any law, regulation, national standard order, sectoral regulation order or collective agreement, the information may, where appropriate, be given in the form of a reference to the laws, regulations, orders or collective agreements governing that same information
This is also applicable when there is a contract of employment but the contract does not include all the information noted above.
On the website of the Department of Employment and Industrial Relations there are sample contracts of employment which one may refer to: https://dier.gov.mt/en/Employment-Conditions/Starting%20a%20New%20Job/Pages/Sample-Contracts-of-Employment.aspx
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