S.L. 452.82 Art. 5Equality of treatment.

(1) Without prejudice to the provisions of paragraph (c) of sub-regulation (1) of regulation 3, the sending parties referred to in regulation 3, shall guarantee, on the basis of equality of treatment, workers who are posted to Malta the terms and conditions of employment covering the following matters laid down in the Act, or in any regulations or 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 classes 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 employment undertakings;

(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 women or women who have recently given birth;

(g) protective measures in accordance with the laws of Malta with regards to terms and conditions of employment protecting children and young people;

(h) equality of treatment between men and women and other provisions of non-discrimination in accordance with the laws of Malta;

(i) the conditions of workers’ accommodation where this is provided by the employer to workers who are away from their regular place of work;

(j) allowances or reimbursement of expenditure to cover travel, board and lodging expenses where this is provided by the employer to workers away from home for professional reasons:

Provided that this paragraph shall apply exclusively to travel, board and lodging expenditure incurred by posted workers where they are required to 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 from that regular place of work 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 actually 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 not determine whether and, if so, which elements of the allowance specific to the posting are paid in reimbursement of expenditure actually incurred on account of the posting or which are part of remuneration, then the entire allowance shall 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 integral part of a contract for the supply of goods and necessary for taking the goods supplied into use and carried out by the skilled and, or specialist workers of the supplying organisation, paragraphs (b) and (c) of sub-regulation (1) shall not apply if the period of posting does not exceed eight (8) days: Provided that this exclusion shall not apply to activities in the field of building work, including but not limited 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, alterations, renovation, repairs, dismantling, demolition, maintenance, upkeep, painting and cleaning work and improvements.

(3A) Paragraph (c) of sub-regulation (1) shall not apply in the cases referred to in paragraphs (a) and (b) of sub-regulation (1) of regulation 3 when the length of the posting does not exceed one (1) month.

(4) The length of the posting shall be calculated on the basis of a reference period of one year from the beginning of the posting: Provided that for the purpose of such calculation, account shall be taken of any previous periods for which the post has been filled by a posted worker.

(5) When a worker is posted to Malta, the inspection of terms and conditions of employment which must be complied with in accordance with this regulation is the responsibility of the competent authority in Malta in cooperation, where necessary, with that of the Member State of establishment in terms of these regulations:

Provided that inspections shall be based primarily on a risk assessment which may identify the sectors of activity in which the employment of workers posted for the provision of services is concentrated. The carrying out of large infrastructural projects, the existence of long chains of subcontractors, geographic proximity, the special problems and needs of specific sectors, the past record of infringement, as well as the vulnerability of certain groups of workers may in particular be taken into account.

(6) Where Malta is the member state of establishment of the service provider, the competent authority in Malta shall assist the Member State to which postings takes place to ensure compliance with EU Directive 96/71/EC and EU Directive 2014/67. This shall not prejudice the powers of the Member State to which the posting takes place to monitor, control or take any necessary supervisory or enforcement measures.

(7) In the cases where facts indicate possible irregularities, the competent authority in Malta shall, on its own initiative, communicate to the Member State concerned any relevant information without undue delay.

(8) When a worker is posted to Malta, the competent authority in Malta may ask the competent authority of the Member State of establishment, in respect of each instance where services are provided or each service provider, to provide information as to the legality of the service provider’s establishment, the service provider’s good conduct, and the absence of any infringement of the applicable rules.

(9) When Malta is the country of establishment of the service provider, the competent authority in Malta shall provide the information contained in sub-regulation (8) in terms of regulation 7.

(10) Without prejudice to the right to request Member States where a worker is posted to carry out checks and controls, nothing in this regulation shall impose an obligation on the competent authority in Malta, in cases where Malta is the country of establishment, to carry out factual checks and controls in the territory of the host Member State in which the service is provided.

(11) Service providers established in a non-Member State shall not be given more favourable treatment than service providers established in a Member State.