Holidays with Pay Convention (Revised), 1970 (No. 132) - Malta (Ratification: 1988)

Replies received to the issues raised in a direct request which do not give rise to further comments (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes the information provided by the Government, which answers the points raised in its previous direct request and has no further matters to raise in this regard.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

Article 6(2) of the Convention. Exclusion of days of sickness. In its previous comments, the Committee had noted that the Organisation of Working Time Regulations did not contain any provision stipulating that periods of incapacity for work resulting from sickness may not be counted as part of the minimum annual holiday with pay. The Government’s most recent report contains no information on this issue. The Committee requests once again the Government to explain how it is given effect to this requirement of the Convention.

Article 7(1). Holiday remuneration. In its previous comments, the Committee had noted the Government’s indication that holiday remuneration was calculated at the ordinary basic wage of the employee concerned. However, the Organisation of Working Time Regulations did not appear to contain specific provisions to this effect. The Government’s most recent report contains no information on this issue. The Committee requests once again the Government to indicate the provisions of the national legislation expressly defining the “usual remuneration” of the workers concerned as the basis of calculation of holiday pay.

Article 8(2). Division of annual leave into parts. In its previous comments, the Committee had noted that, under the terms of the Organisation of Working Time Regulations, annual paid holiday did not necessarily have to be taken over a continuous uninterrupted period of four weeks and four working days. In this regard, the Committee recalls that this Article of the Convention provides that, when annual holiday with pay may be broken into parts, one of the parts must consist of a minimum of two uninterrupted working weeks, unless otherwise provided in an agreement between the employer and the employee. The Government’s most recent report contains no information on this issue. The Committee requests once again the Government to indicate the measures taken to ensure that one part of a divided annual paid holiday consists of at least two uninterrupted working weeks.

Article 10. Timing of holidays. In its previous comments, the Committee had noted the Government’s indication that annual leave may be availed of on days agreed upon between the employer and employee. It noted, however, that the Organisation of Working Time Regulations did not appear to contain specific provisions in this regard. The Government’s most recent report contains no information on this issue. The Committee therefore requests the Government to specify the relevant provisions of the national legislation on this question.

Direct Request (CEACR) - adopted 2013, published 103rd ILC session (2014)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Repetition

Article 2(1) of the Convention. Scope of application. Part-time employees. The Committee notes the adoption of the Organisation of Working Time Regulations (S.L.452.87), Legal Notice No. 247 of 2003, as amended by Legal Notice No. 427 of 2007, and the Part-Time Employees Regulations (S.L.452.79), Legal Notice No. 427 of 2002, as last amended by Legal Notice No. 240 of 2008. In particular, it notes that, contrary to the previous legislation that excluded part-time workers working less than 20 hours per week from the right to annual paid holidays, section 6 of the Part-Time Employees Regulations now provides that all part-time employees, whose part-time employment is their principal employment, are entitled pro rata to the minimum period of annual leave, i.e. the equivalent in hours of four weeks and four working days.

Article 6(2). Exclusion of days of sickness. The Committee notes that, the Organisation of Working Time Regulations do not contain any provision stipulating that periods of incapacity for work resulting from sickness may not be counted as part of the minimum annual holiday with pay. The Committee requests the Government to explain how it is given effect to this requirement of the Convention.

Article 7(1). Holiday remuneration. The Committee notes the Government’s indication that holiday remuneration is calculated at the ordinary basic wage of the employee concerned. It notes, however, that the Organisation of Working Time Regulations do not appear to contain specific provisions to this effect. It would therefore appreciate if the Government would indicate the provisions of the national legislation expressly defining the “usual remuneration” of the workers concerned as the basis of calculation of holiday pay.

Article 8(2). Division of annual leave into parts. The Committee notes that, under the terms of the Organisation of Working Time Regulations, annual paid holiday does not necessarily have to be taken over a continuous uninterrupted period of four weeks and four working days. In this connection, it recalls that this Article of the Convention provides that, when annual holiday with pay may be broken into parts, one of the parts must consist of a minimum of two uninterrupted working weeks, unless otherwise provided in an agreement between the employer and the employee. The Committee requests the Government to indicate the measures taken to ensure that one part of a divided annual paid holiday consists of at least two uninterrupted working weeks.

Article 10. Timing of holidays. The Committee notes the Government’s indication that annual leave may be availed of on days agreed upon between the employer and employee. It notes, however, that the Organisation of Working Time Regulations do not appear to contain specific provisions in this regard. It therefore requests the Government to specify the relevant provisions of the national legislation.

Article 12. Relinquishment of the right to annual holiday. The Committee notes that, under section 8(1) of the Organisation of Working Time Regulations, a minimum period equivalent to four weeks may not be replaced by an allowance in lieu, except where the employment relationship is terminated – a point that the Committee had been raising for a number of years.

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

Article 2, paragraph 1, of the Convention. Scope of application. Part-time employees. The Committee notes the adoption of the Organisation of Working Time Regulations (S.L.452.87), Legal Notice No. 247 of 2003, as amended by Legal Notice No. 427 of 2007, and the Part-Time Employees Regulations (S.L.452.79), Legal Notice No. 427 of 2002, as last amended by Legal Notice No. 240 of 2008. In particular, it notes with satisfaction that, contrary to the previous legislation that excluded part-time workers working less than 20 hours per week from the right to annual paid holidays, section 6 of the Part-Time Employees Regulations now provides that all part-time employees, whose part-time employment is their principal employment, are entitled pro rata to the minimum period of annual leave, i.e. the equivalent in hours of four weeks and four working days.

Article 6, paragraph 2. Exclusion of days of sickness. The Committee notes that, the Organisation of Working Time Regulations do not contain any provision stipulating that periods of incapacity for work resulting from sickness may not be counted as part of the minimum annual holiday with pay. The Committee requests the Government to explain how it is given effect to this requirement of the Convention.

Article 7, paragraph 1. Holiday remuneration. The Committee notes the Government’s indication that holiday remuneration is calculated at the ordinary basic wage of the employee concerned. It notes, however, that the Organisation of Working Time Regulations do not appear to contain specific provisions to this effect. It would therefore appreciate if the Government would indicate the provisions of the national legislation expressly defining the “usual remuneration” of the workers concerned as the basis of calculation of holiday pay.

Article 8, paragraph 2. Division of annual leave into parts. The Committee notes that, under the terms of the Organisation of Working Time Regulations, annual paid holiday does not necessarily have to be taken over a continuous uninterrupted period of four weeks and four working days. In this connection, it recalls that this Article of the Convention provides that, when annual holiday with pay may be broken into parts, one of the parts must consist of a minimum of two uninterrupted working weeks, unless otherwise provided in an agreement between the employer and the employee. The Committee requests the Government to indicate the measures taken to ensure that one part of a divided annual paid holiday consists of at least two uninterrupted working weeks.

Article 10. Timing of holidays. The Committee notes the Government’s indication that annual leave may be availed of on days agreed upon between the employer and employee. It notes, however, that the Organisation of Working Time Regulations do not appear to contain specific provisions in this regard. It therefore requests the Government to specify the relevant provisions of the national legislation.

Article 12. Relinquishment of the right to annual holiday. The Committee notes with satisfaction that, under section 8(1) of the Organisation of Working Time Regulations, a minimum period equivalent to four weeks may not be replaced by an allowance in lieu, except where the employment relationship is terminated – a point that the Committee had been raising for a number of years.

Part V of the report form. Application in practice. The Committee would be grateful if the Government would supply together with its next report up to date information on the manner in which the Convention is applied in practice, including, for instance, statistics on the number of workers covered by the relevant legislation, labour inspection results showing the number of breaches recorded and sanctions imposed, any difficulties encountered in the enforcement of the relevant legislation, copies of collective agreements containing clauses on annual holidays with pay, etc.

Direct Request (CEACR) - adopted 2008, published 98th ILC session (2009)

The Committee notes that the Government’s report has not been received. It hopes that a report will be supplied for examination by the Committee at its next session and that it will contain full information on the matters raised in its previous direct request, which read as follows:

Article 2, paragraph 1, of the Convention. The Committee notes with regret that part-time workers working less than 20 hours per week are still not entitled to annual paid holiday, a point which the Committee has commented on for years. The Committee reiterates that the Convention applies to all employed persons, with the exception of seafarers. The Convention does not differentiate between part- and full-time workers. Under the Convention part-time workers shall have the same rights and entitlements as full-time workers. The Government is therefore requested to take all necessary action to ensure that all employed persons in Malta will be entitled to paid annual leave and to inform the Office on any progress made.

Article 12. The Committee notes the Government’s indication that it is in the process of amending the current legislation to ensure that the right to paid annual holiday may not be compensated in case the employer fails to grant it, but to guarantee that the employee will benefit from the whole of the holiday to which he or she is entitled to. The Committee requests the Government to keep the Office informed of all progress achieved in this respect.

Direct Request (CEACR) - adopted 2003, published 92nd ILC session (2004)

Article 2, paragraph 1, of the Convention. The Committee notes with regret that part-time workers working less than 20 hours per week are still not entitled to annual paid holiday, a point which the Committee has commented on for years. The Committee reiterates that the Convention applies to all employed persons, with the exception of seafarers. The Convention does not differentiate between part- and full-time workers. Under the Convention part-time workers shall have the same rights and entitlements as full-time workers. The Government is therefore requested to take all necessary action to ensure that all employed persons in Malta will be entitled to paid annual leave and to inform the Committee on all success achieved.

Article 12. The Committee notes the Government’s indication that it is in the process of amending the current legislation to ensure that the right to paid annual holiday may not be compensated in case the employer fails to grant it, but to guarantee that the employee will benefit from the whole of the holiday to which he or she is entitled to. The Committee requests to be kept informed of all progress achieved in this respect.

Direct Request (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information provided by the Government in reply to its previous comments. It requests the Government to provide further clarification on the following points:

Article 2 of the Convention. In its previous comments, the Committee noted that in various Wages Council Wage Regulation Orders and the Conditions of Employment (Regulation) Act, 1952, the definition of a "whole-time employee" is based on the number of hours worked per week, thus distinguishing whole-time employees from part-time employees. It recalled that the Convention applies to all employed persons, with the exception of seafarers. The Government indicates in its report that draft legislation to replace the Conditions of Employment (Regulation) Act, 1952, is under consideration, to entitle part-time employees to payment pro rata, in relation to working hours, for vacation leave and public holidays. The Committee requests the Government to indicate the categories of part-time employees which remain excluded from the application of the Convention and the manner in which the organizations of employers and workers concerned were consulted with respect to these exclusions. It also requests the Government to indicate the number of part-time employees estimated in the country and keep the Office informed of any developments in its law and practice with respect to this category of employed persons.

Article 6, paragraph 2. The Committee notes from the Government's report that when an employee becomes sick during his holiday leave, he is deemed still to be on holidays. In this respect, the Committee recalls that, under Article 6, paragraph 2, of the Convention, under conditions determined by the competent authority, periods of incapacity for work resulting from sickness or injury occurring during periods of vacation leave, may not be counted as part of the three-week minimum annual holiday with pay. It therefore requests the Government to indicate the measures taken or contemplated to ensure application of this provision of the Convention.

Article 7, paragraph 2. In its report the Government states that payment of wages is not normally made in advance of holidays and that this is generally accepted. The Committee wishes to draw the Government's attention to the fact that under this provision of the Convention, remuneration for holidays shall be paid in advance of the holiday, unless otherwise provided in an agreement applicable to the person concerned and the employer. It requests the Government to indicate the measures taken to ensure that the amounts due are paid in advance of the holidays.

Article 9, paragraphs 1 and 2. In its report the Government indicates that accumulation of leave is permitted only where there is an agreement between the workers and their employers or the workers' representatives and the employer. In this connection, the Committee again recalls that Article 9, paragraph 1, provides that the minimum period of uninterrupted leave of two working weeks must be granted and taken no later than one year, and the remainder of the annual paid leave no later than 18 months, from the end of the year in which the holiday entitlement arises. Article 9, paragraph 2, further provides that any part of the annual holiday with pay which exceeds a stated minimum may be postponed, with the consent of the employed person concerned, beyond the period specified in paragraph 1 of this Article and up to a further specified time-limit. It therefore repeats its requests to the Government to indicate the minimum annual paid holiday and the time-limit referred to above which have been established.

Article 11. The Committee previously noted that if an employee's employment is terminated during the course of a calendar year, the employer is asked to ensure that the employee is paid pro rata for leave entitlement, failing which the case is referred to Court and payment is enforceable under section 41 of the Conditions of Employment (Regulation) Act, 1952. Since the Office did not receive a copy of section 41 with the Government's report, the Committee would be grateful if the Government would supply a copy of this section.

Article 12. The Committee notes the Government's statement in its report that if the employer fails to grant holiday leave when due, the employee is entitled to compensation. The Committee recalls that this Article provides that any agreement to relinquish the right to a minimum annual holiday with pay is to be prohibited. The Committee therefore requests the Government to indicate the measures that have been taken to ensure that, regardless of any monetary compensation, the worker benefits from the whole of the holidays to which he is entitled.

Article 14 and point V of the report form. The Committee would be grateful if the Government would provide any relevant extracts from inspection reports and statistics concerning the number of employed persons covered by the legislation regulating holidays with pay and the number and nature of any violations of this legislation reported, as well as the sanctions imposed.

Direct Request (CEACR) - adopted 1993, published 80th ILC session (1993)

The Committee notes with interest the information provided in the Government's report, concerning the application of Articles 5(3), 5(4) and 13 of the Convention. It requests the Government to provide additional information in its next report on the following points.

Article 2 of the Convention. The Committee notes the information provided in the Government's report concerning the definition of "whole-time employees". It notes that, in various Wages Council Wage Regulation Orders and the Conditions of Employment (Regulations) Act, 1952, the definition of a "whole-time employee" is based on the number of hours worked per week, thus distinguishing whole-time employees from part-time employees. The Committee would recall that the Convention applies to all employed persons, with the exception of seafarers. The Convention provides under Article 2(2) that certain exclusions concerning limited categories of employed persons in respect of whose employment special problems of a substantial nature arise may be made from the scope of application, after consultation with the organizations of employers and workers concerned. The Government is, therefore, requested to indicate whether limited categories of part-time employees are indeed excluded from the application of the Convention and, if so, to indicate the manner in which the organizations of employers and workers concerned were consulted (Article 2(2)), the reasons for such exclusion and the position of the law and practice with respect to this category of employed persons (Article 2(3)). Please also indicate the number of part-time employees estimated in the country. If part-time employees are not excluded from the Convention, the Government is requested to indicate the measures taken to ensure the application of the Convention to this category of employed persons.

Article 6, paragraph 2. Please indicate whether and in what conditions periods of incapacity due to sickness or injury occurring during the annual holiday with pay are excluded from such holiday.

Article 7, paragraph 1. The Committee would recall that this Article provides that every person taking annual paid holiday must receive at least his or her normal or average remuneration, calculated in a manner to be determined by the competent authority or through appropriate national machinery. The Government is requested to indicate the manner in which holiday remuneration is calculated.

Article 7, paragraph 2. The Committee notes from the Government's report that payment for holidays is made by the employer during the course of employment as part of the wages when due. It would recall that this Article provides for holiday wages due to be paid to the person concerned in advance of the holiday and requests the Government to indicate the manner in which this provision is applied in practice and any steps taken or envisaged to ensure the application of this Article.

Article 8. The Committee notes from the Government's report that annual paid holiday does not necessarily have to be taken over a continuous uninterrupted period of two working weeks. It would recall that paragraph 2 of this Article provides that, when annual holiday with pay may be broken into parts, one of the parts must consist of a minimum of two uninterrupted working weeks (unless otherwise provided in an agreement between the employer and the employee). The Government is requested to indicate the measures taken to ensure that one part of a divided annual paid holiday consist of at least two uninterrupted working weeks.

Article 9, paragraph 1. The Committee would recall that Article 9(1) provides that the minimum period of uninterrupted leave of two working weeks must be granted and taken no later than one year, and the remainder of the annual paid leave no later than 18 months, from the end of the year in respect of which the holiday entitlement has arisen. The Government is requested to indicate the measures taken to ensure that the annual holiday with pay is taken within the time specified in this Article.

Article 9, paragraphs 2 and 3. (a) The Committee notes the indication in the Government's report that the accumulation of holiday leave is permitted in practice so long as there is an agreement between the employer and the trade union representing the workers in the establishment. Article 9(2) provides that any part of the annual holiday with pay which exceeds a stated minimum may be postponed, with the consent of the employed person concerned, up to a further specified time-limit. The Government is requested to indicate the minimum annual paid holiday and the time-limit referred to above which have been established, and to state whether these were established after consultation with the organizations of employers and workers concerned, by collective agreement or by another method consistent with national practice. Furthermore, the Government is requested to indicate the measures taken to ensure that any postponement of holiday leave with pay occurs with the consent of the employed person concerned.

(b) It further notes that the Professional Offices Wages Council/Wage Regulation Order, 1975, provides in section 8 that vacation leave may be given in half-day periods and may be accumulated over a period not exceeding two calendar years. The Government is requested to indicate whether this accumulation is permitted only for a holiday exceeding the minimum referred to above and, if not, to indicate the measures taken to ensure that the conditions set forth in paragraph 1 of this Article are met for all employed persons covered by the Convention.

Article 11. The Committee notes that if an employee's employment is terminated during the course of a calendar year the employer is asked to ensure that the employee is paid pro rata for leave entitlement, failing which the case is referred to Court and payment is enforceable under section 41 of the 1952 Act. Please clarify whether payment is thus enforceable in all cases, and supply a copy of section 41.

Article 12. The Committee would recall that this Article provides that any agreement to relinquish the right to a minimum annual holiday with pay is to be prohibited. The Government is requested to indicate the measures taken or envisaged to ensure the application of this Article.

Article 14 and point V of the report form. The Committee notes the indication in the Government's report that the measures for the application of the Convention are enforced by means of inspection. The Government is requested to suply with its next and future reports any relevant extracts from inspection reports and any statistics available concerning the number of employed persons covered by the legislation regulating holidays with pay and the number and nature of any contraventions of this legislation reported.

Direct Request (CEACR) - adopted 1992, published 79th ILC session (1992)

The Committee notes the information provided in the Government's first report on the application of the Convention. It would be grateful if additional information on the following points were provided in the next report, in respect of both the public and private sectors.

Article 2(2) and (3) of the Convention. The Committee notes that the Weekly Day of Rest and Annual Vacation Leave National Standard Order, 1989 covers "whole-time employees" as that term is used in recognised conditions of employment in accordance with section 10 of the Conditions of Employment (Regulation) Act, 1952. It would be grateful if the Government would indicate the meaning of the term "whole-time employees" and, in so far as employed persons might be excluded from the application of the Convention, provide the information requested in the report form.

Article 5(3). Please indicate how length of service is calculated for purposes of this Article.

Article 5(4). Please indicate under what conditions absence from work for reasons beyond the control of the employed person is counted as part of the period of service required for entitlement to an annual holiday with pay.

Article 6(2). Please indicate whether and in what conditions periods of incapacity for work resulting from sickness or injury are counted as part of the annual holiday with pay.

Article 7. Please indicate how holiday pay is calculated and whether it is paid to persons concerned in advance of the holiday.

Article 8. Please indicate whether division of the annual holiday into parts is authorised and, if it is, whether at least one part must consist of at least two uninterrupted working weeks.

Article 9. Please indicate under what circumstances any accumulation of untaken holiday leave is permitted, having regard to this Article.

Article 11. Please indicate how, upon termination of employment, the holiday with pay due, compensation in lieu, or the equivalent holiday credit are guaranteed.

Article 12. Please indicate how it is ensured that agreements to relinquish the right to the minimum annual holiday are prohibited.

Article 13. Please indicate any rules in respect of engaging in a gainful activity during the annual holiday.

Article 14. Please indicate the manner in which the proper application and enforcement of regulations and provisions concerning annual holidays with pay are assured, whether by inspection or otherwise.