The Impact of the Marriage Act on Maltese Employment Law
On 11 October, the president of the Malta Institute of Management, Reuben Buttigieg together with the MIM Council, presented the Minister for European Affairs and Equality, Dr Helena Dalli with a report titled The Impact of the Marriage Act on Maltese Employment Law.
Buttigieg said: “The MIM felt that the changes in the Marriage Act would impact on various aspects within the business world. Indeed, in negotiations of contracts, certain matters started to come up. The Council felt the need to point out that in order to ensure full implementation of the Marriage Act and not to leave room for excessive interpretation such changes need to start taking place. The first study engaged into was that in relation to the Employment legislation. The MIM is currently engaging into other studies that will propose more changes in order to ensure a smooth transition.”
In its report, the MIM has outlined the changes enacted in the Marriage Act of 2017, namely significant changes to various laws with the aim of marriage equality for all. However, the report goes further in clarifying certain instances within the same Act, which pertain to different sectors of the economy, proposing changes to traditional references to husband, wife, mother and father, in a bid to wholly standardise regulations for all sectors. MIM is proposing that these same references become gender neutral and offer legal clarity for samesex married couples throughout all relevant laws.
Buttigieg added: “As MIM we look to things from a practical point of view and in order to be efficient, laws and regulations need to be clear enough in order not to waste time in trying to interpret what the regulator intended or understand why subsidiary legislation is in conflict with the main legislation. This in the name of efficiency and in order to avoid unnecessary litigation.”
With regard to Parental Leave Regulation, in its report the MIM reiterates that the wording used in this particular instance, “the right to parental leave granted to both male and female workers” needs to be changed to “both parents” to reflect the scenario where same-sex couples have become new parents. A similar recommendation within the report tackles the Urgent Family Leave Regulations outlining the need to change the terminology “husband, wife” to more gender neutral “spouses”.
An even more significant change proposed by the MIM is in the definition of birth leave used in the Minimum Special Leave Entitlement Regulations, which states “leave without loss of wages granted to a father on the occasion of the birth of his child” which in itself is discriminatory and creates a conundrum in the case of female same-sex couples. In its report, the MIM recommends that this phraseology be changed to “leave without loss of wages granted to the other parent on the occasion of the birth of his/her child”.
The report proceeds with highlighting the required changes in the current terminology used in the Wage Regulation Orders for various sectors, mainly focusing on Birth Leave, Bereavement Leave and Special Leave regulations for each.
In its conclusion, the report emphasises the importance of gender inclusive language to be applied in both existing and new collective agreements, as well as policies and procedures executed by companies.
Further to this, the MIM reiterates that any benefits given to heterosexual couples are also given equally to same-sex couples, to provide further protection and ensure that discrimination is eliminated at the workplace. The report also suggests that mandatory audits be introduced, in order to ensure that employers are actually fulfilling their legal obligation and failure to adhere to such obligations will result in the imposition of administrative penalties.