S.L. 452.82 Art. 4Identification of a genuine posting and prevention of abuse and circumvention.

(1) For the purpose of implementing, applying and enforcing these regulations, the competent authority in Malta shall make an overall assessment of all factual elements which assist it in carrying out checks and controls and where there is reason to believe that a worker may not qualify as a posted worker in terms of these regulations.

(2) The elements mentioned in this regulation are indicative factors in the overall assessment to be made and shall not be considered in isolation. The assessment of these elements shall be adapted to each specific case and shall take account of the specificities of the situation.

(3) In order to determine whether an undertaking, which is the service provider, genuinely performs substantial activities, other than purely internal management and, or administrative activities, the competent authority in Malta shall make an overall assessment of all factual elements characterising those activities. Such elements may include in particular:

(a) the place where the undertaking has its registered office and administration, uses office space, pays taxes and social security contributions and, where applicable, in accordance with national law has a professional licence or is registered with the chambers of commerce or professional bodies;

(b) the place where posted workers are recruited and from which they are posted;

(c) the law applicable to the contracts concluded by the undertaking with its workers, on the one hand, and with its clients, on the other;

(d) the place where the undertaking performs its substantial business activity and where it employs administrative staff;

(e) the number of contracts performed and, or the size of the turnover realised in the Member State of establishment, taking into account the specific situation of, inter alia, newly established undertakings and small and medium sized enterprises.

(4) In order to assess whether a posted worker temporarily carries out his work in Malta, all factual elements characterising such work and the situation of the worker shall be examined by the competent authority in Malta. Such elements may include in particular:

(a) the work is carried out for a limited period of time in Malta;

(b) the date on which the posting starts;

(c) the posting takes place to Malta as a Member State other than the one in or from which the posted worker habitually carries out his work according to Regulation

(EC) No 593/2008 (Rome I) and, or the Rome Convention;

(d) the posted worker returns to or is expected to resume working in the Member State from which he or she is posted after completion of the work or the provision of services for which he or she was posted;

(e) the nature of activities;

(f) travel, board and lodging or accommodation is provided or reimbursed by the employer who posts the worker and, if so, how this is provided or the method of reimbursement;

(g) any previous periods during which the post was filled by the same or by another worker.

(5) The failure to satisfy one or more of the factual elements set out in this regulation shall not automatically preclude a situation from being characterised as one of posting.

(6) Where, following an overall assessment made in terms of this regulation, it is established that an undertaking is improperly or fraudulently creating the impression that the situation of a worker falls within the scope of these regulations, that worker shall enjoy all rights relating to the terms and conditions of employment by virtue of the Act and the orders or regulations issued thereunder and by virtue of any applicable collective agreement.