B 1694
L.N. 262 of 2020
EMPLOYMENT AND INDUSTRIAL RELATIONS ACT
(CAP. 452)
Posting of Workers in Malta ( Amendment) Regulations, 2020
I N  E X E R C I S E  o f  t h e  p o w e r s  c o nferred by article 48 of the
Employment and Industrial Relatio ns Act, the Minister within th e
Office of the Prime Minister as Minister responsible for Employ ment
and Industrial Relations, has made the following regulations:-
Citation and 
commencement.
S.L. 452.82.1. (1) The title of these regulati ons is Posting of Workers in
Malta (Amendment) Regulations, 2020 and they shall be read and
construed as one with the Posting of Workers in Malta Regulatio ns,
hereinafter referred to as "the principal regulations".
(2) These regulations shall come into force on the 30th July,
2020.
Amends 
regulation 1 of 
the principal 
regulations.2. Regulation 1 of the principal regulations, shall be amended
as follows:
(a) sub-regulation (2) thereof, shall be substituted by the
following:
"(2) The object of these regulations is to give effect
to the relevant provisions of Directive 96/71/EC of the
European Parliament and of  the Council of 16 December
1996 concerning the posting of workers in the framework
of the provision of services  as amended by Directive (EU)
2018/957 of the European Parliament and of the Council of
28 June 2018, and the provisions of Directive 2014/67/EU
of the European Parliament and of the Council of 15 May
2014 on the enforcement of Dir ective 96/71/EC concerning
the posting of workers in the framework of the provision of
services and amending Regulation (EU) No 1024/2012 on
administrative cooperation th rough the Internal Market
Information System ( ‘the IMI Regulation’).";
(b) in sub-regulation (3) thereof, the words "Directive 96/
71" shall be substituted by the words "Directive 96/71 andDirective 2014/67"; and
(c) immediately after sub-re gulation (3) thereof, there
shall be added the follo wing new sub-regulation:
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"(4) These regulations shall not in any way affect
the exercise of fundamental rights, including the right or
freedom to strike or to take other legal action, and the rightto negotiate, conclude and en force collective agreements,
or to take collective action.".
Amends 
regulation 2 of the principal 
regulations.3. In sub-regulation (1) of regulation 2 of the principal
regulations, immediately after the definition "posted employee"  there
shall be added the fo llowing new definition:
" "remuneration" means all the constituent elements of
remuneration rendered mandato ry by the Act, orders or
regulations issued thereunder;".
Amends 
regulation 3 of the principal 
regulations.4. Sub-regulation (1) of regulation 3 of the principal
regulations, shall be amended as follows:
(a) in paragraph (a) thereof,  immediately after the words
"for whom the services are inte nded, provided" there shall be
added the word "that";
(b) in paragraph (b) thereof, immediately after the words
"which is owned by the foreign service provider, provided" ther e
shall be added the word "that"; and
(c) paragraph (c) thereof, shall be amended as follows:
(i) immediately after the words "operating in
Malta, provided" there shall  be added the word "that"; and
(ii) the words "during the period of posting." shall
be substituted by the words "during the period of posting:"
and immediately thereafter, there shall be added thefollowing new provisos:
S.L. 452.106."Provided that the foreign service providers
referred to in this paragraph shall guarantee theposted workers the terms and conditions ofemployment laid down in the Temporary Agency
Workers Regulations, which apply to temporary
agency workers hired out by temporary workagencies established in Malta, and the user
undertaking shall inform the foreign service provider
of these terms and conditions of employment:
Provided further that when a worker who has
been hired out by a temporary employmentundertaking or temporary placement agency to a user
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undertaking, established or operating in Malta in
terms of this paragraph, carries out work in the
framework of the transnational provision of serviceswithin the meaning of this regulation by the user
undertaking in the territory  of a Member State other
than where the worker normally works for the
temporary employment unde rtaking or temporary
placement agency, or for the user undertaking:
(a) the worker shall be considered to be
posted to the territory of that Member State bythe temporary employment undertaking ortemporary placement agency with which the
worker is in an employment relationship;
(b) the temporary employment
undertaking or temporary placement agencyshall be considered to be the foreign service
provider making the posting in terms of theseregulations and shall fully comply with the
provisions of these regulations; and 
(c) the user undertaking shall inform
the temporary employment undertaking ortemporary placement agency which hired out
the worker in due time before commencementof the work.".
Amends 
regulation 4 of 
the principal regulations.5. Immediately after sub-regulation (5) of regulation 4 of the
principal regulations, there shall be added the following new s ub-
regulation:
"(6) Where, following an overall assessment made in
terms of this regulation, it is established that an undertaking is
improperly or fraudulently cr eating the impression that the
situation of a worker falls within the scope of these regulatio ns,
that worker shall enjoy all rights relating to the terms andconditions of employment by virtue  of the Act and the orders or
regulations issued thereunder a nd by virtue of any applicable
collective agreement.".
Amends 
regulation 5 of 
the principal regulations.6. Sub-regulations (1), (2) and (3) of regulation 5 of the
principal regulations, shall be substituted by the following:
"5. (1) Without prejudice to the provisions of
paragraph (c) of sub-regulation (1) of regulation 3, the foreig n
service providers referred to in regulation 3, shall guarantee,  on
the basis of equality of treatme nt, workers who are posted to
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Malta the terms and conditions of employment covering the
following matters laid down in t he Act, or in any regulations o r
orders issued thereunder:
(a) maximum work periods and minimum rest
periods as applied to various  classes of employees;
(b) minimum paid annual leave as applied to
various classes of employees;
(c) remuneration, including overtime rates as
applied to various cla sses of employees:
Provided that supplementary occupational
retirement pension schemes shall be excluded from such
remuneration;
(d) the conditions of hiring-out of workers, in
particular the supply of workers by temporary employmentundertakings;
(e) measures in accordance with the laws of Malta
relating to health, safety and hygiene at work;
(f) protective measures with regard to the terms
and conditions of employment protecting pregnant womenor women who have recently given birth;
(g) protective measures in accordance with the
laws of Malta with regards to terms and conditions ofemployment protecting children and young people;
(h) equality of treatment between men and women
and other provisions of non-di scrimination in accordance
with the laws of Malta;
(i) the conditions of workers’ accommodation
where this is provided by the employer to workers who areaway from their regular place of work;
(j) allowances or reimburse ment of expenditure to
cover travel, board and lodging expenses where this isprovided by the employer to workers away from home forprofessional reasons:
Provided that this paragraph shall apply
exclusively to travel, board and lodging expenditure
incurred by posted workers where they are required to
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travel to and from their regular place of work in the
Member State to whose territory they are posted to Malta,
or where they are temporarily sent by their employer fromthat regular place of wor k to another place of work.
(2) Allowances specific to the posting shall be
considered to be part of the remuneration, unless they are paid  in
reimbursement of expenditure act ually incurred on account of
the posting, such as expenditure on travel, board and lodging.Without prejudice to paragraph (j) of sub-regulation (1), the
employer shall reimburse the posted worker for such expenditure
in terms of any applicable law:
Provided that, where the terms and conditions of
employment applicable to the employment relationship do notdetermine whether and, if so, which elements of the allowancespecific to the posting are paid in reimbursement of expenditur e
actually incurred on account of the posting or which are part o f
remuneration, then the entire allowance sha ll be considered to be
paid in reimbursement of expenditure.
(3) In cases of initial assembly  and, or first installation of
goods where such activity is an in tegral part of a contract for  the
supply of goods and necessary for taking the goods supplied int o
use and carried out by the skilled and, or specialist workers o f
the supplying organisation, paragraphs (b) and (c) of sub-regulation (1) shall not apply if  the period of posting does no t
exceed eight (8) days:
Provided that this exclusion shall not apply to
activities in the field of building work, including but not lim ited
to work related to the construction, repair, upkeep, alteration  or
demolition of buildings, and in  particular excavation, earth
moving, actual building work, assembly and dismantling of
prefabricated elements, fitting out or installation, alteration s,
renovation, repairs, disman tling, demolition, maintenance,
upkeep, painting and cleani ng work and improvements.
(3A) Paragraph (c) of sub-regul ation (1) shall not apply in
the cases referred to in parag raphs (a) and (b) of sub-regulati on
(1) of regulation 3 when the length of the posting does notexceed one (1) month.".
Adds new 
regulation to the principal 
regulations.7. Immediately after regulation 5 of the principal regulations,
there shall be added the following new regulation:
"5A. (1) Without prejudice to the provisions of
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paragraph (c) of sub-regulation (1) of regulation 3, where the
effective duration of a posting exceeds twelve (12) months, the
foreign service providers referred to in regulation 3 shallguarantee, on the basis of equality of treatment, workers who a re
posted to Malta, in addition to the terms and conditions ofemployment referred to in sub-re gulation (1) of regulation 5, a ll
the applicable terms and conditi ons of employment by virtue of
the Act, or any regulations  or orders issued thereunder:
Provided that this shall not apply to:
(a) the terms and cond itions related to the
conclusion and termination of the employment contract;and 
(b) supplementary occupational retirement pension
schemes.
(2) Where the foreign ser vice provider submits a
motivated notification, the competent authority in Malta shallextend the period referred to in sub-regulation (1) to eighteen(18) months. 
(3) Where the foreign service provider replaces a posted
worker by another posted worker performing the same task at thesame place, the duration of the  posting shall, for the purposes  of
this regulation, be the cumulative duration of t he posting peri ods
of the individual poste d workers concerned:
Provided that for the purposes of this sub-regulation,
the concept of "the same task at the same place" shall bedetermined taking into consideration, inter alia, the nature of  the
service that shall be provided, the work that shall be performe d
and the address or addre sses of the workplace.".
Amends 
regulation 7 of the principal 
regulations.8. In paragraph (f) of sub-regulation (8) of regulation 7 of the
principal regulations, the words "keeping all the information u p to
date." shall be substituted by the words "keeping all the infor mation up
to date:" and immediately thereafter, there shall be added the following
new proviso:
"Provided that when the information on the single official
national website does not indicate which terms and conditions o f
employment shall be applied, that circumstance shall be taken
into account when imposing the penalties laid down in regulatio n
12, to the extent necessary to ensure the proportionality
thereof.".
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Amends 
regulation 12 of 
the principal regulations.9. In regulation 12 of the princ ipal regulations, the words
"Any person contravening the provisions" shall be substituted b y the
words "Without prejudice to the proviso to sub-regulation (8) o f
regulation 7, any person contravening the provisions".
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Ippubblikat mid-Dipartiment tal-Informazzjoni (doi.gov.mt) — Valletta — Published by the Department of Information (doi.gov.mt) — Valletta
Mitbugħ fl-Istamperija tal-Gvern fuq karta riċiklata — Printed at the Government Printing Press on recycled paper
Prezz/Price
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