In recent decades, the need to promote a work-life balance and enact the necessary policies to promote and enforce same, has been predominant.
The Work Life Balance Directive imposed a time limit on member states to implement the necessary rules, with the minimum requirements indicated in the directive. The Directive has finally been transposed into Maltese Law by virtue of Legal Notice 201 of 2022 and has come into force as from 2 August 2022.
The Regulation defines its scope as that of transposing minimum requirements designed to achieve equality between men and women with regard to labour market opportunities and treatment at work, by facilitating the reconciliation of work and family life for workers who are parents, or carers. The said regulation therefore provides for individual rights related to (a)paternity leave, parental leave and carers’ leave (b)flexible working arrangements for workers who are parents or carers.
In virtue of the Regulations, Paternal leave has been increased from one day to ten days. Article 4 of the Regulation provides that fathers, or the equivalent second parents, have the right to paternity leave of ten (10) working days, to be taken on the occasion of the birth or the adoption of the worker’s child, immediately after the birth or the adoption of the child, without loss of wages. Paternal leave is therefore a paid entitlement which cannot be refused or postponed by the Employer.
The Regulation has also introduced significant changes to parental leave, Whereas parental leave was previously unpaid non-transferable leave, which could be availed of until the child reached eight years before the agreed date of resumption of duties and the employee shall likewise have no right to return to work prior to the agreed date of resumption of duties. the concept of payment for part of the parental leave and has also introduced the possibility of availing oneself of such leave in periods of two weeks in order to grant more flexibility to the employer and employee alike. Article 5 of the Regulation provides that every worker is entitled to parental leave per child whether employed on an indefinite or a fixed term contract, provided that the worker has been in the employment with the same employer for a continuous period of at least twelve (12) months. The new regulation also specifies that unless the employer and employee agree otherwise, the employer shall not during the parental leave, have the right to suspend the parental leave and to request the employee to return to work. Workers have a right to request that parental leave is taken in flexible ways and the employer shall consider and respond to such requests, taking into account the needs of both the employer and the employee and any reasons for refusal shall be provided by the Employer within two weeks from the request. A worker shall apply for parental leave by giving a minimum notice of two weeks prior to taking such leave.
The regulations further specify that all rights of the employee shall be retained during the period of parental leave and the employee shall, during the course of parental leave, have a right to apply for promotion opportunities arising within the place of work and in order to facilitate the return to work, both employer and employee shall retain contact during the period of parental leave.
The Regulations have introduced the right to paid parental leave as well as the individual nature of such right. Therefore, in terms of Article 6, it shall be the individual right of each parent to be granted paid parental leave on the grounds of birth, adoption, child fostering in the case of foster parents, or legal custody of a child, to enable them to take care of the child for a period of four (4) months until the child has attained the age of eight (8) years. Paid parental leave shall be applicable to two months out of the four months and shall be paid at the same rate as that established for sickness benefit entitlement under the Social Security Act and parental leave shall be paid as to 50% of entitlement in cases where the child has not yet attained the age of our, as to 25% in cases where the child has turned four years of age but has not yet turned six, and as to 25% in cases where the child has turned six years but not yet reached the age of eight years. . Therefore, whereas parental leave can be availed of any point until the child reaches the age of eight, payment shall only be made in accordance with the percentages and ages stipulated by law. Furthermore, parental leave can be transferred between one parent and another limitedly to two months.
A change of employment shall not prejudice the right of a parent to parental leave and therefore, in the event that the parental leave was not availed of, whether in whole or in part, whilst the employee was in employment with a particular employer, an employee shall remain entitled to such leave even if there is a change in the employer or in the employment of the employee and any balances will therefore be brought forward and exercisable by the employee with regard to the new employer.
The request for parental leave is to be done in writing and by not later than two weeks before the intended commencement of such leave and the Employer shall grant a reply. the new law provides a non-exhaustive list of instances where the refusal of the employer to such a request is deemed justifiable and in such instances, the refusal shall be communicated in writing within two weeks of receipt of the request. Reasons for refusal include i. the nature of the business being seasonal in nature ii. Where a replacement cannot be found within the notice period given by the worker iii. Where the role of the employee is of strategic importance to the business of employer iv. Where the place of business is a small enterprise with not more than ten (10) employees provided that the employee consults with the employee to find alternative dates prior to postponing v. where a significant proportion of the workforce applies for parental leave during the same period.
The law has also introduced the novel concept of carers leave. A carer is defined as a worker providing personal care or support to a relative, or to a person within the same household as the worker, and who is in need of car or support for medical reasons. Article 9 of the Regulations provides that each worker has the right to carers leave of five working days per year, which shall be unpaid. Such leave shall be availed of if the employee presents medical proof that the relative or person who lives in the same household as the worker and in relation to whom carers’ leave is requested, is suffering from an illness and is in need of care and support.
The right to request flexible working arrangements has also been introduced. Article 10 of the Regulations provides that workers with children up to the age of eight years, and carers, have the right to request flexible working arrangements for caring purposes and the latter may be limited in duration. The term ‘flexible working arrangements’ may include but are not limited to, remote working, work on reduced hours and flexitime. Employers shall consider and respond to requests for flexible working arrangements within two weeks of the request and shall provide reasons for any refusal of such requests or for postponement of such arrangements.
An employee shall not be prejudiced by availing himself or herself of paternal, parental or carers leave and shall retain full employment rights. At the end of the paternal, parental and carers leave, workers are entitled to return to their jobs or to equivalent posts on terms and conditions which are no less favourable to them, and to benefit from any improvement in working conditions to which they would have been entitled had they not taken leave and employees availing themselves of such leave or requesting flexible working arrangements shall not suffer discrimination and if the latter files proceedings to enforce or acquire rights under the regulations, such proceedings shall not constitute a basis for adverse treatment or consequences. Similarly dismissal on such grounds shall be unlawful.
Mediation has also been introduced and Article 15 of the Regulations obliges parties, that is to say, the employer and employee, to refer any dispute regarding such entitlements, to mediation before the Director General of Industrial and Employment Relations.
By way of conclusion, breach of any of the Regulations shall constitute an offence against an act and shall on conviction be liable to a fine (multa) of two thousand Euro.
The new regulations can be viewed as an initiative to narrow the gap between men and women at the workplace and to promote a balance between duties at the workplace and exigencies of businesses and, on the otherhand the enjoyment and exigencies of family life, hence promoting a work life balance.