Legal Notice 46 of 2012 (the Regulations) has recently been enacted in order to clarify the situation in relation to overtime under the current legal framework and also to introduce certain notions which previous legislation failed to address. The Regulations are in fact without prejudice to any other law issued under the Employment and Industrial Relations Act (EIRA) regulating part-time employment and the Organization of Working Time Regulations and can therefore be said to have a supplementary role.
The Regulations clarify that the average weekly working time, including overtime, cannot exceed an average of 48 hours over such an applicable reference period. However the Regulations then go on to state that such a provision shall not apply where the employee has consented in writing to work for more hours. In addition, the Regulations also clarify the situation in relation to the remuneration of overtime where no Wage Regulation Order exists and stipulate that such overtime shall be paid at one and a half times the normal rate for every hour in excess of forty hours per week. Prior to the introduction of these Regulations, if the employment of a person was not subject to a Wage Regulation Order, the employer could continue to pay an employee at the same rate for hours worked in excess of forty per week.
The Regulations also introduce the idea of having schemes to bank hours whereby up to three hundred and seventy-six hours of the normal annual working hours in each calendar year may be banked, thus allowing extra hours over and above the normal weekly working hours to be worked during periods of higher work activity which would be redeemed during periods of lower activity by having working hours below the normal weekly working hours. Whilst the introduction of such schemes is optional, if made use of, these would have to conform with the requirements specified in the Regulations. An important aspect of such schemes is that only hours paid at a normal rate may be banked. Hours attracting a special rate are therefore to be excluded from banking systems and shall be paid in accordance with normal practice, unless however the parties agree otherwise. In addition the Regulations also stipulate how such schemes are to operate in relation to vacation leave, sick leave, maternity leave or other leave and also in the case of unpaid leave.
Dr. M. Clara Borg