Direct Request (CEACR) - adopted 2009, published 99th ILC session (2010)

Hours of Work (Industry) Convention, 1919 (No. 1) - Malta (Ratification: 1988)

Article 2 of the Convention. General standard on maximum limits on hours of work. Further to its previous comment, the Committee notes the Government’s explanations concerning the voluntary character of the “opting-out” clause provided for in section 20 of the Organization of Working Time Regulations, 2004, and the additional guarantees (i.e. protection of workers against penalization not willing to work for more than 48 hours, record-keeping, right of inspectors to prohibit or restrict additional hours for reasons of safety or health) which in the Government’s view exclude any risk of abuse or threat to the worker’s health and welfare. While noting these clarifications, the Committee is obliged to recall that, in its current reading, the Organization of Working Time Regulations permit exceptions to the general standard of eight hours a day and 48 hours a week under conditions that go far beyond those prescribed by the Convention and that, in any event, exceptions to maximum limits on hours of work based on individual agreement are not consistent with either the letter or the spirit of the Convention.

In addition, the possibility to opt out in writing based on the worker’s prior consent is not accompanied by any specific limit on weekly, monthly or annual working hours whereas the Convention explicitly stipulates that the maximum of additional hours in each instance of exceptions must be fixed by regulations made by public authority. In this regard, the Committee wishers to draw the Government’s attention to paragraph 144 of its General Survey of 2005 on hours of work in which it noted that that, even though the establishment of specific limits to the total number of additional hours is left to the competent authorities, this does not mean that such authorities have unlimited discretion in this regard. Such limits must be “reasonable” and they must be prescribed in line with the general goal of the Convention, namely to establish the eight-hour day and 48‑hour week as a legal standard of hours of work in order to provide protection against undue fatigue and to ensure reasonable leisure and opportunities for recreation and social life. Moreover, the Committee notes that the same point has been raised by the European Committee of Social Rights which, in its 2007 conclusions, found that the situation in Malta is not in conformity with Article 2(1) of the European Social Charter due to the absence of limits on overtime and of the guarantee of the workers’ right to reasonable working hours. While noting that the opting-out clause has been the main obstacle to the efforts to revise European Working Time Directive 2003/88/EC, the Committee requests the Government to indicate the measures it intends to take in order to bring the national legislation into full conformity with the requirements of the Convention.

Article 5. Averaging of hours of work. In the absence of any reply to its previous comment on this point, the Committee is obliged to recall that the Convention allows for the variable distribution of hours of work over a period longer than a week only in exceptional cases where it is recognized that the general standard of Article 2 cannot be applied and where an agreement between workers’ and employers’ organizations has been concluded and given the force of regulations made by public authority. Therefore, section 7 of the Organization of Working Time Regulations, which does not limit the averaging of working hours to any specified exceptional cases, is not in conformity with the provisions of Article 5 of the Convention. The Committee requests the Government to indicate any measures taken or envisaged in order to give full effect to this Article of the Convention.

Article 8, paragraph 1. Posting of notices. The Committee notes the Government’s statement that no specific provision is made in the labour legislation for the notification of work schedules by means of posting of notices in conspicuous places at the workplace. It also notes the Government’s reference to the Information to Employees Regulations (L.N. 431 of 2002, as amended by L.N. 427 of 2007), which require every employer to give each employee within eight working days from the commencement of employment various information regarding employment conditions, including the normal hours of work. The Committee requests the Government to indicate any measures it intends to take in order to give full effect to this Article of the Convention.

Part VI of the report form. Application in practice. The Committee would be grateful if the Government would provide together with its next report up to date information on the practical application of the Convention, including, for instance, statistics on the number of workers covered by the relevant legislation, extracts from labour inspection reports showing the number and nature of infringements of the working time legislation observed and the sanctions imposed, copies of collective agreements containing clauses on working time arrangements, all available information on the operation of the opting-out clause in practice, recent surveys or studies on working time issues, etc.