Working overtime: a closer look at Malta’s working time regulations

By Ann Bugeja, Zammit & Associates

The Overtime Regulations introduced on the 31st January 2012 will probably impact existing agreements and arrangements and will certainly continue to raise several questions from employers and employees alike. It is important that employers and employees familiarise themselves with the relative provisions relating to organisation of working time to ensure that these basic rules are properly reflected within the relative employment arrangements.

Night work

Malta employment law defines "night time" in the context of night work as the period between 10pm of one day and 6am of the next day, and a night worker means a worker who works at least three hours of his daily working hours during such night time hours or works more than fifty percent of his annual working time during night time.

A night worker's normal hours of work must not exceed an average of eight hours in any 24-hour period and the average number of hours worked each night will be calculated on the total number of hours worked for a period of seventeen weeks in the course of the workers employment. 

It is the duty of an employer who regularly uses night workers, to keep adequate records on any workers carrying night work to show that there is suitable compliance with the provisions of the law and also to furnish the Director of Labour (whenever so requested) with any information related to night work which may be considered necessary. Prior to assigning a worker to carry out night work the employer is required to have each worker undergo a health check from a medical doctor at the employer's expense to ensure that each worker is fit to carry out the work. Such check-ups should be conducted at regular intervals thereafter or whenever there is a change in the working environment. 

Shift Work

"Shift work'' means any method of organising work in shifts whereby workers succeed each other at the same work stations according to a particular pattern, which may be continuous or not, entailing the need for workers to work at different times over a given period of days or weeks. 

Where employees working in shift work, work on a public holiday or outside regular working hours, they would be paid in overtime at the rates established in either the Wages Council Wage Regulation Order which regulates their industry or in accordance with the Overtime Regulations, (Subsidiary Legislation 455.110 of the Laws of Malta - Legal Notice 46 of 2012), which are considered in further detail below. 

Regular/normal working hours are not defined by law, as each individual's 'normal' working hours are specific to that individual. By way of general example, a clerk's 'normal' working hours would be 8AM - 5 PM. However, a hospital pharmacist's 'normal' working hours would be 7 PM - 7 AM. The working hours are generally agreed upon between the employer and employee prior to signing the employment contract (unless the specific industry dictates otherwise).

Where, in the case of a full-time employee, a public holiday falls on a weekly day of rest to which such employee is entitled, such employee shall be entitled to an additional day of vacation leave during that same calendar year or extra remuneration (added to the employee's salary). It is also common for employers and employees to agree that if a work day falls on a public holiday or a Sunday due to the employee's shift, the worked hours would be granted as time off in lieu during the same calendar year.   

Overtime

According to the EIRA "overtime" means any hours of work in excess of the normal hours of work (as defined above).  

Overtime rates are established in accordance with the applicable Wages Council Wage Regulation Orders. Thus, for example, the Professional Offices Wages Council, Wage Regulation Order 1975 (Legal notice 127 of 1975) provides that full time employees must be paid overtime at the rate of one and a half times their regular rate for all time worked outside the normal hours of work, that is in excess of 40 hours for weekdays and Saturdays, and double their regular rate for all time worked on Sundays and public holidays.

The Professional Offices Wages Council, Wage Regulation Order provides that trade unions 'associations' officers having executive powers may be required to work overtime without remuneration. Indeed, it has hitherto been common practice for employees holding a professional or senior position not to be granted overtime compensation. 

The newly promulgated Legal Notice 46 of 2012 provides that any employee who is not covered by a Wages Council Wage Regulation Order and who works any overtime as required by his/her employer is to be compensated at one and a half times the normal rate for the work carried out, provided that the normal weekly hours, including overtime do not exceed a total of forty eight.

It is essential to clarify what in fact constitutes overtime; overtime is work performed (i) outside one's normal working hours and (ii) requested by the employer. Should an employee work an extra hour everyday in order to keep up with his/ her work load, this does not constitute overtime, as it is not upon the explicit request of the employer.  Furthermore, the legal notice does not differentiate between weekdays, Saturdays and Sundays and hence any overtime hours worked on a Sunday being are paid at time and a half.

Legal Notice 46 of 2012 became effective on the 31st of January 2012 and therefore will not act retrospectively to entitle employees to any compensation for overtime worked prior to that date. However, employers should take the opportunity to revise their standard contracts of employment to ensure that this Legal Notice is duly complied with and also possibly take the opportunity to amend employment agreements for its existing employees. 

In our view, it is very likely that the intention of the legislator to stop abuse and ensure that employees are adequately compensated for overtime may not actually be achieved through this legal notice. If, for example, the employer in the conditions of employment provides for an amount as basic salary and another amount as compensation for overtime (with an estimated ratio of 3:1), this would appear to satisfy the compensation for overtime requirement.

By way of general example, should an employee's annual salary be of €20,000, the employer may allocate €15,000 as a basic pay and €5,000 by way of compensation for any over time which is to be worked. Thus, as long as the apportionment of the employee's remuneration is fair, reasonable and explicitly stated in the employment agreement, providing for overtime in an employment in this manner should conform to the provisions of Legal Notice 46 of 2012.

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