If you are employing a carer to assist you in your daily activities, it’s important that you are aware of the law related to their employment and what your legal obligations are as an employer. Having this information will help guide you to choose the right carer to meet your needs and help reduce misunderstandings related to working conditions, pay and additional entitlements. Knowing these regulations will ensure your carer is giving you the support and care you are entitled to in exchange for remuneration. It will also ensure that the well-being and health of the carer is being cared for, which would put them in a better position to care for your needs.
The European Charter of Rights and Responsibilities of Older People in need of Long-term Care and Assistance with the support of the European DAPHNE III Programme, a group of partners from 10 countries led by AGE have developed a European Charter of Rights and Responsibilities of Older People in need of Long-Term Care2 as part of their EUSTACEA project. With this Charter, the EUSTACEA partners seek to set up a common reference framework that can be used across the European Union to promote the wellbeing and dignity of older dependent people. An accompanying guide complements the Charter and is addressed more specifically to older people’s carers, long-term care providers, social services and policy makers. Further details can be found on the following link: http://www.age-platform.eu/images/stories/22495_guide_accompagnement_EN_low.pdf
‘Servigi’ – Compensation for Services Rendered
Maltese case law envisages the concept of ‘Servigi’, that is , compensation for services rendered, even in the absence of an agreement and when these are unsolicited. The Maltese courts have upheld the view that in the absence of an agreement, compensation may still be due if from the behaviour of the party rendering the services and other circumstances of the case it appears that such a person did not intend to offer the services gratuitously. The main challenge with servigi is however the manner in which to calculate the amount of compensation, since no specific agreement would have been entered into – the actual computation of the compensation due is still relatively a grey area. Different points of view vary from treating the services rendered as any another work that gives rise to payment to taking into consideration the fact that the parties concerned were relatives and thus less compensation would be due. There is also the question relating to whether different financial situations should give rise to different compensations even though the services would be practically identical. In certain judgements, the Courts also took into consideration the benefits that the person giving services enjoyed whilst rendering the same services.
 In fact servigi is not a contract as such but a ‘quasi-contract’.
 The first problem facing the action for ‘servigi’ was whether an individual is entitled to remuneration for services performed in the absence of an agreement. As quoted in relatively recent Maltese judgements including ‘Carmela Farrugia et vs. Mary Abela’ which was decided by the Court of Appeal on the 6th October 1961, that query was answered in the affirmative in very early cases such as ‘Cutajar vs. Falzon’ decided by the First Hall of the Civil Court on the 2nd of January 1843
Below you will find the information relating to the national legal regulations available and to be adhered to by both the Carer and also the Care recipient in relation to labour and employment regulations. It is related to the different categories of domestic worker which exist, regulations related to hours worked, minimum remuneration, over-time pay, meal entitlements while on duty, daily and weekly rest, holiday and sick leave entitlement, as well as entitlements in the event of injury, bereavement, marriage or birth of a child.
The CONDITIONS OF EMPLOYMENT (REGULATION) ACT, 1952 (ACT NO. XI OF 1952) (Kept in force by virtue of Article 86 of the Employment and Industrial Relations Act – Cap.452) DOMESTIC SERVICE WAGES COUNCIL WAGE REGULATION ORDER, 1976: Domestic Service Legal Notice L.N. 7 of 1976 is being reproduced ad verbatim in order to give a clear and detailed outline of the National Legal Regulations a Care Recipient has to be informed aware of when opting to engage the services of a Domestic worker.
The DIER Legislation – Legal Notice L.N.7 of 1976 – Domestic Service outlines in detail the legislature related to Domestic Workers providing Domestic Service and the legal obligations to be adhered to by both the Carer and also the Care Recipient.
This Legislature outlines in detail the different types of domestic workers and divides them into six (6) different categories each defined with different working conditions and regulations. The Care recipient has to be affluent with which category the Carer is being engaged in, in order to abide by the regulations as defined by the respective category. It is imperative that the Care recipient is affluent with the DOMESTIC SERVICE WAGES COUNCIL WAGE REGULATION ORDER, 1976: Domestic Service Legal Notice L.N. 7 of 1976, and abides by them to the latter.
Main Groups of Domestic Workers
- For the purposes of this Wage Regulation Order, there shall be six groups of workers in domestic service, as follows:-
GROUP 1 shall consist of those workers engaged by the month who sleep in their employer’s house on not less than seventeen nights in any month;
GROUP 2 shall consist of those workers engaged by the month who sleep in their employer’s house on less than seventeen nights a month or not at all;
GROUP 3 shall consist of those workers engaged by the week who sleep in their employer’s house on not less than four nights in any week;
GROUP 4 shall consist of those workers engaged by the week who sleep in their employer’s house on less than four nights a week or not at all;
GROUP 5 shall consist of those workers who are engaged by the day;
GROUP 6 shall consist of those workers who are engaged by the hour.
Hours of Work
- The hours of work of workers in Groups 1 and 3 on those days when they do not sleep in their employer’s house, of workers in Groups 2 and 4 on those days when they do not sleep in their employer’s house, and of workers in Group 5 shall be not more than eight (8) in any day but no more than 44 hours in any week, this being up to the 28th February 1990 and 40 hours thereafter, exclusive of breaks for meals and rest.
(a) The minimum remuneration of workers shall be as follows:
|Workers in Group 1||………………………………||€ 740.09 per month|
|Workers in Group 2||………………………………||€ 735.43 per month|
|Workers in Group 3||………………………………||€ 170.92 per week|
|Workers in Group 4||………………………………||€ 169.17 per week|
|Part-TimersWorkers in Group 5||………………………..||€ 28.20 per day|
|Workers in Group 6||………………………..||€ 4.23 per hour|
Provided that for employment exceeding four hours in any one day payment shall in no case be less than the equivalent of a days’ work;
Provided further that any part-time worker who qualifies as a whole-time in accordance with paragraph 1 of this Schedule shall be entitled to the full weekly wage applicable under this sub-paragraph notwithstanding that she works for less than six days.
Minimum Overtime Remuneration
- (1) Workers in Groups 1, 2, 3, 4, on those days when they do not sleep in their employer’s house and workers in Group 5 shall be entitled for payment at time-and-a-half for all time worked over eight hours in normal days and for all time worked over 44 hours in any one week, this being up to the 20th February 1990 and for all time worked over 40 hours after the 28th February, 1990.
(2) Workers who work on a Customary Holiday shall be entitled to double-pay for one day’s work and payment at double-time for all time worked over eight hours.
(3) Workers who work on their weekly day of rest shall be entitled to payment at double-time for all time worked.
- (a) Workers in Groups 1 and 3 on those days when they sleep in their employer’s house and workers in Group 2 and 4 on those days when they sleep in their employer’s house shall be entitled to all meals free of charge, and on those days when they do not sleep in their employer’s house they shall be entitled to all meals free of charge except supper.
(b) Workers in Group 5 shall be entitled to all meals free of charge, except supper.
(c) Workers in Group 6 shall be entitled to coffee or tea after working for not less than 2 hours and shall be further entitled to lunch or supper, as the case may be, after working in the aggregate for not less than 5 hours.
(d) Workers in Groups 1 and 3 on those days when they do not sleep in their employer’s house, workers in Groups 2 and 4 on those days when they do not sleep in their employer’s house and workers in Group 5, shall be entitled to supper when their hours of work in excess of eight (8) in any day exceed three:
Provided that workers in Group 1 and 2 shall have € 48.36 deducted monthly from their minimum remuneration, workers in Group 3 and 4 shall have deducted weekly € 11.16 from their minimum remuneration, and workers in Group 5 shall have € 1.86 deducted daily from their minimum remuneration, as compensation for meals to which they shall be entitled as aforesaid:
Provided that workers in Groups 6 shall have no deduction from their minimum remuneration as compensation for meals to which they may be entitled as long as they are not entitled to a day’s pay in which case they shall have € 1.61 deducted from their daily minimum remuneration:
Provided that workers in Group 1, 2, 3 and 4 shall not be considered as having availed themselves of their rights to meals as aforesaid during periods of Customary Holidays, leave and sick leave entitlement, and the relevant deduction as compensation for meals shall not be made from their minimum remuneration; and, provided further that, should workers not avail themselves of their right to any meals as aforesaid, they shall not be entitled to any pecuniary compensation in substitution there forth.
Minimum Daily Rest
- (a) Workers in Groups 1 and 3 on those days when they sleep in their employer’s house and workers in Group 2 and 4 on those days when they sleep in their employer’s house shall be entitled to a minimum daily rest of three hours in the aggregate in every day, the time or times of rest to be fixed by the employer after consultation with the employee.
(b) Workers in Groups 1 and 3 on those days when they do not sleep in their employers house and workers in Groups 2 and 4 on those days when they do not sleep in their employer’s house and workers in Group 5, shall be allowed in any one day intervals of not less, in the aggregate, than 45 minutes for meals and rest.
Minimum Weekly Rest
- Workers in Groups 1, 2, 3 and 4 shall be entitled to a day of rest in every week, such day of rest being fixed by the employer after consultation with the employee;
Provided that in special cases with the consent of both employer and employee the worker shall be entitled to a holiday of a number of days equivalent to the number of weekly days of rest of which he does not avail himself up to but not exceeding seven.
- (1) In addition to the minimum weekly rest to which whole-time employees may be entitled under paragraph 8, whole-time employees shall be entitled to the National Holidays and to all public holidays with full pay, and to the following vacation leave not being less than:-
(a) four working weeks and one working day during the calendar years 1988 and 1989;
(b) four working weeks and two working days during the calendar year 1990;
(c) four working weeks and three working days during the calendar year 1991;
(d) four working weeks and four working days during the calendar year 1992 and during any calendar year thereafter:
Provided that when a whole-time employee is in employment for less than 12 months during any calendar year, he shall be entitled to such part of the said vacation leave as is in proportion to the number of months in employment.
(2) For the purposes of this paragraph “vacation leave” means leave with pay which may be availed of on days agreed upon between the employer and the employee, provided that one day vacation leave during 1988 and 1989, two days vacation leave during 1990, three days vacation leave during 1991 and four days vacation leave during 1992 and during any calendar year thereafter shall not form part of any shutdown and shall be granted by the employer as optional leave in addition to any optional leave the employee may have been entitled to on the 9th November, 1988.
- (1) After the completion of six months continuous service, every whole-time employee in Groups 1, 2, 3 and 4 shall in every calendar year be entitled to the equivalent in hours of fourteen days sick leave on full pay, less an amount equal to the sum set for sickness benefit entitlement at the rate established under the Social Security Act, and part-time employees shall have a pro rata entitlement to sick leave in hours on full pay, less an amount equal to the sum set for sickness benefit entitlement at the rate established under the Social Security Act, which amount is also to be calculated on a pro rata basis:
Provided that –
(a) the first three days of any claim for sick leave shall be paid in full by the employer;
(b) a medical certificate covering the period of absence is produced to the employer on the day of return to work or, if such period of absence is longer than seven days, within seven days of the onset of sick leave absence;
(c) employees in receipt of a social security pension in respect of retirement or widowhood in terms of the Social Security Act shall, for the purpose of calculating the sick leave pay due, be deemed to have received an amount equal to the sum set for sickness benefit entitlement at the rate established under the Social Security Act.
(2) The employer may require a medical certificate by his own physician to certify incapacity for work during the period of absence.
(3) The sick leave entitlement granted by virtue of this paragraph shall be calculated on the basis provided for annual leave as specified in regulation 8(1) of the Organisation of Working Time Regulations.
- A whole-time employee shall be entitled to a maximum of one year injury leave on full pay, less the full amount of any injury benefit to which such employee may be entitled in terms of the Social Security Act, 1987, if he is injured during the actual discharge of his duty and such injury is not due to any contributory negligence on his part or to the contravention by him of any safety rules laid down by the management.
- Employees in groups 1, 2, 3 and 4 shall be entitled to two days paid leave on the occasion of the death of any of the following relations: the wife or husband, the mother or father, the daughter or son, and the sister or brother.
- Employees falling under Groups 1, 2, 3 and 4 shall be entitled to three working days leave on full pay on the occasion of their marriage.
- A male worker in Groups 1, 2, 3 and 4 shall be entitled to two days leave with pay on the occasion of the birth of a child to his lawful wife.
- Employees falling under Groups 1, 2, 3 and 4 called for jury service shall be allowed all necessary time off on full pay to enable them to attend to such service in Court.
- In cases where the retiring age of a male employee is expected at the age of 60 years, such employee shall be given the opportunity by his employer to retain his employment beyond this age at least until the age of 61 years, provided that the employee in question shall still be allowed, if he so wishes, to retire at the age of 60 years.