According to Maltese employment law, "wages" means "the wage payable to an employed person by, or on behalf of his employer, excluding any remuneration for overtime, any forms of bonus, any allowances, and remuneration in kind and commissions."
It is a well-established principle that an employee’s basic wage should not be arbitrarily deducted by an employer. In fact, an employer cannot impose fines to be deducted from an employees’ wage as disciplinary penalty. Exceptions to this rule exist where an employer and an employee, or the employee’s Union representative, have agreed that a fine may be imposed. This must be specifically provided for in the employment contract or collective agreement, and is to be approved by the Director of Employment and Industrial Relations. Moreover, a deduction of wages during suspension is also considered as a form of fine by the law.
However, amounts paid over and above the basic wage do not have the same level of protection. In the cases Uffiċjal Mediku Ewlieni u s-Segretarju Parlamentari tas-Saħħa vs Angelo Briffa and Uffiċjal Mediku Ewlieni u s-Segretarju Parlamentari tas-Saħħa vs Mario Cassar, the Chief Medical Officer sought to recover amounts paid in overtime to its employees. Said attempt was based on a contract clause stipulating that no payment for overtime was due. The Chief Medical Officer, being a government official, sought to use a special summary procedure intended for the recovery of debts by a government department.
Both cases were dismissed by the Court of Magistrates on the basis that the procedure used by the Chief Medical Officer to recover said amounts was incorrect. Moreover, it was stated that overtime and/or allowances paid are not to be considered as a credit by the Government.
These decisions have been confirmed by the Court of Appeal on the 12th of June 2020.
What is telling, however, is that the Court of Appeal specified that this action by the employer could have been submitted under the general provisions of the Civil Code for recovery of payments made in error. This provides a new opportunity for employers who wish to retrieve payments made to their employees, which they feel, were erroneously made. From the employees’ point of view this means an added level of caution in ascertaining whether the additional hours they are working are going to be remunerated and ideally have a confirmation of this in writing.
Dr Anthea Witney Turner
Civil Law - Employment Law - Expat Law
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