Employment and Industrial Relations Act (Cap. 452), article 2

2. (1) In this Act, unless the context otherwise requires - "act" and "action" each includ es omission and references to doing an act or taking action shall be construed accordingly; "class" when used in the context of a group or a category of employees shall refer to the groups or categories listed in a collective agreement: Provided that where there is no collective agreement or where a collective agreement does not stipulate groups or categories of employees, it shall refer to the work performed o r expected to be performed indepe ndently of the title or name giv en to the post; "collective agreement" means 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; "comparable whole-time employee" means a whole-time employee in the same establishment who is engaged in the same o r similar work or occupation, due regard being given to other considerations including seniority, qualification and skills: Provided that where there is no comparable whole-time employee in the same establishmen t, the comparison shall be mad e by reference to collective agreements covering similar comparab le whole-time employees in other establishments: Provided further that wher e there is no applicable collective agreement, reference sh all be made to law or in defa ult of provision by law to the preva iling practice as may be establ ished by the Employment Relations Board; "conciliator" means a person appo inted as such under article 68 ; "conditions of employment" means wages, the period of employment, the hours of work and leave and includes any conditions related to the employment of any employee under a contract of service including any benefits arising therefrom, t erms of engagement, terms of work participation, manner of terminati on of any employment agreement and the mode of settling any differences which may arise between the parties to the agreemen t; but it does not include professional ethics arising from any professional relationship between an employer and an employee; "contract of service" and "cont ract of employment" means an agreement, (other than service as a member of a disciplined for ce 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 a n agreement of apprenticeship: EMPLOYMENT AND INDUSTRIAL RELATIONS [ CAP. 452. 3 Provided that unless otherwise specifically referred to in another law, in this Act or in any regulations made under this Act, irrespective of the declared nature of the relationship, whenev er the employer exercises effective dir ection, control and choice over the nature of the work or the tasks being or to be performed by a p erson for the employer, that relationship shall be considered to be o ne of a contract of service and the person carrying out the work shall be deemed to be an employee of the employer; "Council" means the Joint Negotiating Council established by article 72; "court of inquiry" means a person or persons appointed as a cou rt of inquiry under article 69; "delivery" means the birth of a c hild, whether alive or stillbo rn, occurring from the twenty second (22nd) week of pregnancy onwar ds; "Director" means the Director G eneral responsible for Employme nt and Industrial Relations; Cap. 411. "disciplined force" has the same meaning as is assigned to it b y article 47 of the Constitution of Malta and includes the Assistance and Rescue Force established by virtue of the Civil Protection Act ; "discriminatory treatment" means any distinction, exclusion or restriction which is not justifiable in a democratic society in cluding discrimination made on the basis of marital status, pregnancy o r potential pregnancy, sex, colour, disability, religious convict ion, political opinion or membership in a trade union or in an employers’ association; "employee" means any person w ho has entered into or works under a contract of service, or any person who has undertaken personally to execute any work or service for, and under the immediate direction and control of another person, including an outworker, but excluding work or service performed in a professional capacity or as a contractor for another person whe n such work or service is not regulated by a specific contract of service; "employer" includes a partnership, company, association or othe r body of persons, whether vested with legal personality or not; "employment agency" and "employment business" means a natural or legal person carryin g out any activ ity in Malta: (a) for the recruitment of p ersons for employment in Malta or outside Malta; (b) as a temporary work agency; or (c) as an outsourcing agency; and in the case of a legal person whose objects in their memorandum of association include the carrying out of the relev ant activities as well as activities an cillary or incidental theret o, but do not include objects which are not compatible with the services of a n employment agency or employment business; "employment relationship" mean s any "contract of service" or "contract of employment" a s defined in this Act; 4 CAP. 452.] EMPLOYMENT AND INDUSTRIAL RELATIONS "employees’ representative" fo r the purposes of articles 35, 36(14), 37 and 38 means the reco gnized union representative: Provided that, where there exists no recognised union, the terms shall mean such representative of the union representing the employees, notwithstanding that in the case of non-unionised employees, the terms shall mean such representative duly electe d from amongst the non-unionised employees, by means of a secret ballot called for such purpose by the employer; "employers’ association" mea ns an organisation consisting wholly or mainly of employers and of which the principal purpos e is by its rules the regulation of relations between employers a nd workers or trade unions; "employment", in relation to a trade dispute, includes any relationship whereby one person does work or performs services for another (other than a servi ce as a member of a disciplined force); "hours of work" means the time on any day during which employees are available for service to the employer, exclusive of the intervals allowed for meals and rest; "Industrial Tribunal" means the Industrial Tribunal set up unde r Title II of this Act; "Minister" means the Minister from time to time responsible for Employment and Industrial Relations; "national standard order" mean s an order made under this Act regulating the conditions of employment of employees in general ; "outsourcing agency" means a natu ral or legal person, and in th e case of a legal person whose obj ects in its memorandum of assoc iation include the carrying out of the relevant activities as well as all activities ancillary or incidenta l thereto, but do not include such objects which are not compatible with the servi ces of an outsou rcing agency, who enters into contracts of employment or employment relationships with employees and who assigns, whether on a regu lar or on an irregular basis, the employees to user undertakings to wo rk there temporarily, by being physically present at the premises of the user undertaking or working remotely, under the supervision, directi on and control of the outsourcing agency, whether or not such activity is the main or ancillary activity o f the outsourcing agency; "outworker" means a person to whom articles, materials or services of any nature are giv en out by an employer for the performance of any type of work or service where such work or service is to be carried out either in the home of the outworke r or in some other premises not being premises under the control and management of that other person; "overtime" means any hours of work in excess of the normal hours of work; "parent" includes an adoptive pa rent or any person who has the legal custody of a child; "part-time employee" means an e mployee whose normal hours of EMPLOYMENT AND INDUSTRIAL RELATIONS [ CAP. 452. 5 work, calculated on a weekly basis or on an average over a peri od of employment of up to one year, are less than the normal hours of work of a comparable whole-time employee and who is not a whole-time employee with reduced hours; "period of employment" means the time in any day during which employees are available for servi ce to the employer, but inclus ive of the intervals allowed for meals and rest; "personal injury" includes any disease and any impairment of a person’s physical or mental condition; "prescribed" means prescribed by this Act or by or under rules or regulations made under this Act; "pro rata " means the proportion that the weekly number of hours for which the employee is engaged bears to the number of weekly hours, excluding overtime, of a comparable whole-time employee; "public office", "public officer" and "public service" have the same meaning as is assigned to them by article 124 of the Constitution of Malta; "recognised conditions of employment" are those conditions of employment recognised in terms o f Part II of Titl e I of this Ac t; "recognition" for the purposes of this Act, shall mean the expr ess recognition of a registered trade union by an employer or by an employers’ association for the purposes of collective bargainin g; "recruitment of persons for employment" means a natural or lega l person, and in the case of a legal person whose objects in its memorandum of association include the carrying out of the relev ant activities as well as all activitie s ancillary or incidental th ereto, but do not include such objects which are not compatible with the serv ices of recruitment of persons for employment, that provides services f or matching offers of and applications for employment, without the provider of recruitment of perso ns for employment becoming a pa rty to the employment relationship that may arise from such services; "registered", in relation to a trade union or an employers’ association and to the rules thereof, means registered under th is Act; "Registrar" means the Registra r of Trade Unions appointed or designated under article 52; "registration" means registration under this Act of a trade uni on or of an employers’ associatio n and of the rules thereof; "sectoral regulation order" means an order made under this Act regulating the conditions of employment of a sector or class of employees; "self-employed persons" means al l persons pursuing a gainful activity on their own account; "temporary work agency" means a natural or legal person, and in the case of a legal person whose obj ects in its memorandum of assoc iation include the carrying out of the relevant activities as well as all activities ancillary or incidental thereto, but do not include such 6 CAP. 452.] EMPLOYMENT AND INDUSTRIAL RELATIONS objects which are not compatible with the services of a tempora ry work agency, who enters into cont racts of employment or employm ent relationships with temporary agency workers and who assigns, on a regular or on an irregular basis, the temporary agency workers to user undertakings to work there temporarily under their supervision, direction and control, whether or not such activity is the main or ancillary activity of the temporary work agency; Cap. 217. "third-country national" shall ha ve the same meaning as assigne d to it in article 2 of the Immigration Act ; "trade dispute" means a dispute between employers and workers, or between workers and workers, w hich 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 o f such procedures; (g) the membership or non-membership of a worker in a particular trade union; "trade union" means an organisation consisting wholly or mainly of workers and of which the principal purpose is by its rules t he regulation of relations between workers and employers or employers’ associations; "Tribunal" means the Industrial Tribunal established by article 73; "unfair dismissal", in relation to a worker, means:- (a) the termination by the employer in respect of that worker of a contract of em ployment for an indefinite time (other than probationary employment as defined in this Act) being a termination which is not made solely on the grounds of redundancy or for a good and sufficient cause in accordance with the relevant provisions of this Act or any regulations prescribed hereunder, or (b) which is made in contravention of the provisions of article 64(4), or (c) which, though made on grounds of redundancy or for a good and sufficient cause, is discriminatory as defined EMPLOYMENT AND INDUSTRIAL RELATIONS [ CAP. 452. 7 in this Act or any regulati ons prescribed hereunder; and includes any failure by the employer to re-employ such pers on or to re-employ him as provided in article 36(3), or (d) the termination by the employer in respect of that worker of a contract of em ployment for a fixed term: Provided that the expiration of a fixed term contract of employment shall not be deemed to be a termination of the fixed term contract of employment; "wages" means remuneration or earnings, payable by an employer to an employee and includes any bonus payable under article 23 other than any bonus or allowance related to perform ance or production; "weekly day of rest" means a pe riod of twenty four consecutive hours starting from the time when the employee normally commences his term of duty; "whole-time employee" means an e mployee who is deemed to be a whole-time employee in terms of any recognised conditions of employment; "whole-time employee with reduced hours" means a whole-time employee who in agreement with the employer works for less than the number of hours of work applicable in terms of the recognis ed conditions of employment to a whole-time employee, provided tha t such employment is the principal employment of the employee, in respect of which social security contributions are payable; "worker" has the same meaning as "employee" but for the purposes of Title II of this Act, "worker" means an employee wh o works or normally works or seeks to work - (a) under a contract of employment; or (b) under any contract (whether express or implied and, if express, whether oral or in writing) whereby he undertakes to do or perform personally any work or services for another party to the contract who is not a professional client of his; or (c) in employment under or for the purposes of a department of Government, otherwise than as a member of a disciplined force, in so far as any such employment does not fall within paragraph ( a) or ( b) of this definition, and in relation to a trade dispu te to which an employer is a pa rty, "worker" includes any worker even if not employed by that employer. (2) For the purposes of this Act, a dispute to which a trade union or an employers’ association is a party shall be treated as a dispute to which workers or, as the case may be, employers are parties. (3) Any provision of this Act requiring compliance with or observance of any provision of thi s Act (however such requireme nt is worded), or making provision with respect to any contraventi on 8 CAP. 452.] EMPLOYMENT AND INDUSTRIAL RELATIONS thereof, shall be construed as requiring compliance with and observance of, or as equally applicable to, any provision of an y regulation or rule made under this Act. (4) The masculine gender includes the feminine and the singular includes the plural, unless the context otherwise requ ires. Extension of applicability to exclusive economic zone area or environment protection area. Added by: XXXV .2023.65. Cap. 362. Cap. 625.