Overtime
Related legislation:
Article 2, 6 and 18 of the Employment and Industrial Relations Act, 2002, Chapter 452 of the Laws of Malta
Article 7 – 8 of the Organisation of Working Time Regulations, L.N. 247 of 2003
1. What is an opt-out clause?
The Working Time Directive seeks to protect employees from being asked to perform excessive working hours on a regular basis. The principle underlying the restriction on working hours is that of occupational health and safety. However the employer and the employee are provided the option whereby, by mutual agreement the employee can work in excess of an average of 48 hours per week.
Therefore the opt-out clause authorises the employer to allocate, if necessary, more than an average of forty eight (48) hours per week.
2. Is the opt-out agreement mandatory?
In 2004, when Malta joined the European Union, because the EU acquis prohibits employees from working more than an average of 48 hours, in its Membership negotiations Malta opted out of the 48 hour rule. This implied that employees who were willing to work for more than an average of 48 hours had to sign an opt out clause. The opt-out agreement is not part of the contract of employment. However, employees can be presented with such an agreement once they are engaged and they can decide whether to accept or not the proposal.
3. Does the opt-out agreement apply for the duration of the employment?
The employee may withdraw the opt-out agreement at any point during his/her employment provided that he/she gives notice.
4. What is over time?
The EIRA defines overtime as being any hours of work in excess of the normal hours of work.
5. Can an employee refuse to work overtime?
Provided that adequate notice is given the employee cannot refuse to work less than an average of 48 hours per week.
6. Is there a minimum notice that has to be given for an employee to work overtime?
Normally it is expected that an employee is given at least 24 hours notice to work overtime. This is stipulated in various collective agreements. However this does not preclude the employer from giving shorter notice in cases of force majeure.
7. If an employee has been absent for a day, and is asked to work beyond 8 hours on another day during the week, which makes the weekly total less than 40, is the employee entitled to overtime pay for those hours?
Any hours worked in excess of the normal daily hours for full timers qualify for overtime rates.
8. Can overtime payment be substituted with time in lieu at single rate?
For employees to be given time off in lieu of payment there has to be mutual agreement, moreover the time-off has to be proportionate to the payment, that is, time and a half or double time for every extra hour worked.
9. Are part timers entitled to overtime payment?
No part timers are not entitled to overtime payment unless they exceed 40 hours per week.
10. Can contracts of employment include clauses that offer a remuneration package that is inclusive of overtime?
It is common practice that in executive, administrative, managerial and technical posts, contracts of employment include clauses that stipulate that the remuneration package covers all hours necessary to carry out the assigned tasks or to achieve defined targets.
It is clear that the remuneration package should reflect the level of responsibility involved.
By custom and practice such a condition cannot be applied to persons earning less than twice the minimum wage.
It is also to be noted that there are many examples of employees earning relatively high salaries yet they are still paid at overtime rates for hours in excess of the normal hours of work.
11. Is there a maximum number of hours in a given week that an employee can work overtime?
Employees are obliged to work up to an average of 48 hours per week. The employer cannot force employees to work beyond the 48 hours, unless there is agreement with the employee and the opt-out clause has been signed.
12. Is there a difference between a part timer and a casual worker for the purpose of overtime?
A part time employee will only be eligible for payment of overtime rates if the employee works in excess of forty hours in any one week or if the employee exceeds the number of working hours for the day as stipulated in the relevant Wages Council Regulation Order (WRO). The same applies to casual workers.
13. Can an employee be asked to work overtime if s/he is out on leave?
An employee may be asked to work overtime in cases of force majeure.
