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08 April 2020
One year has now passed since the European Parliament passed the EU Work-Life Balance Directive (2019/1158/EU) for parents and carers, but what did it really achieve?
This family-oriented directive was not a novelty but rather aimed to continue building upon the already existing legal framework highlighting family as a priority.(1)
The directive mainly aims to:
The directive represents a minimum standard for all EU member states; therefore, nothing prevents member states from raising any benefits or measures above this standard.
In Malta, this directive has been a breath of fresh air for employees, who are now able to better balance their work and family responsibilities. In turn, employers should benefit from more motivated and productive workers.
This article examines the main measures introduced by this directive.
Paternity leave is a new right being granted at the EU level. Under Maltese law, new fathers were previously entitled to one day of birth leave on the birth of a child in accordance with Subsidiary Legislation 452.101.(2)
Through the directive, fathers are now entitled to 10 working days' paternity leave. This leave must be compensated (at least) in the same way and at the same level as sick leave.
The right to parental leave was previously granted under EU Directive 2010/18/EU. Under existing Maltese law,(3) both male and female workers are entitled to unpaid parental leave for four months on the grounds of birth, adoption, legal custody or fostering of a child to enable them to take care of that child until the child turns eight years old.
However, the EU Work-Life Balance Directive has strengthened the already existing right to four months' parental leave by making two of the four months non-transferable from one parent to another. Previously, only one month was non-transferable.
The directive also states that parents will have the right to request to take such leave in a flexible manner and stipulates that such leave must be compensated at an adequate level to be determined by member states. However, it remains to be seen what Malta will classify as 'adequate', and such term is likely to be a bone of contention in the coming months.
Leave for carers is another new right being granted at the EU level. This right entitles workers providing personal care or support to a relative(4) or person living in the same household to five days' leave per year. Notably, such leave was previously absent from Maltese legislation.
Malta may use a different reference period, allocate leave on a case-by-case basis and introduce additional conditions for the exercise of this right.
Notably, unlike paternity and parental leave, the directive does not oblige Malta to compensate carers' leave in any way; however, that is not to say that national governments are prohibited from compensating for such leave. Rather, compensation for such leave is to be determined by each member state. The Maltese government has yet to state whether it will compensate such leave.
Although Maltese law is currently silent, and jurisprudence is lacking when it comes to flexible working arrangements, many Maltese employers – particularly those with branches in other EU member states – offer different levels of flexibility through internal policies in relation to flexible working arrangements and reduced working hours.
The EU Work-Life Balance Directive has notably extended the right to request flexible working arrangements to carers and working parents of children up to the age of eight. Carers and working parents can request a reduction in working hours, flexible working schedules and remote working.
Moreover, the directive not only obliges employers to consider such requests, but also obliges them to justify any refusal.
The directive also provides legal protection for working parents and carers who request the abovementioned leave and flexible working arrangements. Employees are protected against dismissal and discrimination for making such requests or for taking such leave.
This protection is already indirectly granted to all employees under Maltese law, along with specific provisions emphasising this protection for pregnant employees or employees who have recently given birth.
Malta has until 2 August 2022 to transpose this directive into national law. The EU Work-Life Balance Directive is an important milestone for the European Union and will have a notable impact on member states. However, is the impact on Malta significant or too small?
On the one hand, the Chamber for Small and Medium Enterprises (GRTU) has affirmed that it is "against a one-size-fits-all approach and unfortunately this is the way the EU has legislated". The GRTU has stated that "such discussions and decisions are better catered for at member state level, because at [a] national level we can adapt based on our countries' circumstance, being in a position to move forward and not shock the system".
On the other hand, some parties argue that more could be done. Perhaps in the coming years, the European Commission will propose a revision of the EU Maternity Leave Directive, extend the right to request flexible working conditions for all parents of children up until the age of 18 and set out proposals relating to self-employed individuals. It would be interesting to see the Maltese government introduce similar provisions for self-employed individuals, as current legislation is severely lacking on these fronts.
For further information on this topic please contact Mattea Pullicino at Fenech & Fenech Advocates by telephone (+356 2124 1232) or email (firstname.lastname@example.org). The Fenech & Fenech website can be accessed at www.fenechlaw.com.
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