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Employment Status National Order, 2012 (Legal Notice 44 of 2012)

Employment Status National Order, 2012 (Legal Notice 44 of 2012)

Prior to the enactment of LN 44 of 2012, the relationship between a self-employed person and the person for whom the services of such a self-employed are provided, was regulated by the laws of contract, tort as well as the provisions of the commercial code, where applicable. Following the enactment of the Employment Status National Standard Order, self-employed persons may be afforded protection under the Employment and Industrial Relations Act if at least five of the following conditions are satisfied:-

a)      The self-employed person depends on one person for whom work is performed for at least 75% of his income over a one-year period.

b)      The self-employed person depends on such person to determine what work is to be done and how it should be carried out.

c)       The self-employed person performs the work using equipment, tools and machinery provided by such person.

d)      The self-employed person is subject to a working time schedule or minimum work periods established by such person.

e)      The self-employed person cannot sub-contract his work to other individuals or substitute himself when carrying out his work.

f)       The self-employed person is integrated in the structure of the production process, the work organization or the company’s or other organization’s hierarchy.

g)      The self-employed person’s activity is a core element in the organization and pursuit of the objectives of such person.

h)      The self-employed person carries out similar tasks to existing employees, or to those formerly undertaken by employees.

In such cases, the provisions of the Employment and Industrial Relations Act including those regulating overtime, occupational health and safety, the protection of wages, discrimination related to employment, termination of the employment relationship, enforcement and non-compliance, trade unions and voluntary settlement of disputes, will consequently also be applicable to the relationship between the employer and the self-employed and the latter will, for all intents and purposes be considered as an employee.

This Legal Notice has far-reaching implications since the employer is obliged to grant to such an employee the same wages paid to comparable employees, or if there is no such employee, the same wage which such a person used to receive as a self-employed. In addition the employer is also obliged to grant the same conditions of employment enjoyed by comparable employees, or if there is no such employee, the applicable minimum conditions of employment.

The Order also stipulates the duty of the employer to send a letter of engagement or a signed statement to the self-employed, which is to contain the information set out in the Information to Employees Regulations, and provides specific timeframes for delivery in such cases. In addition, in certain circumstances the self-employed person may bring proceedings before the Industrial Tribunal, thus providing the self-employed with a more expeditious and less onerous means of redress. However, either party, may at any time, request that the relationship be converted from a contract of service to a contract for services or vice versa.

Dr. M. Clara Borg
Glenna Montefort

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