Anna Mallia | Wednesday, 04 November 2009

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I cannot understand how the government provides us with a Department for Industrial and Labour Relations, and at the same time allows flagrant abuse of workers within its own authorities and departments.
The Department of Labour and Industrial Relations is there to protect workers from exploitation by unscrupulous employers. Up until some time ago, the government was considered as the ‘perfect’ employer: providing all the rights guaranteed by law to its own employees.
In fact, criticism on the part of workers’ unions was always levelled at businessmen who exploited their workers by employing them as self-employed, in order to avoid having to grant annual leave, sick-leave and all the other benefits which come with full-time employment.

Before, criticism was always levelled at employers, but never at the government. Employers would be accused of forcing part-time employees to resign and register as self-employed, in order to bypass legislation that grants pro-rata sickness and holiday benefits and bonuses according to law to part-timers working at least eight hours a week.
 
The statistics in Table 1, issued by the report by the Centre for Labour Studies at the University of Malta entitled ‘Malta’s self-employed workers’, illustrate the number of the self-employed without employees in sectors which are traditionally consonant with full-time employees.
But now, even the government is hiring on a ‘self-employed’ basis. The Malta Tourism Authority is a case in point, where clerical staff is being hired as ‘self employed’ at a rate of so much per hour.
Another case I know of is that of the Department of Culture, where the situation is even worse: full-time employees are being fooled into signing a new contract as ‘self employed’.

The Labour Office has always defined these so-called ‘self employed’ workers as bogus self-employed. The Employment and Industrial Relations Act (EIRA) defines an employee as any person who works under a contract of service, or any person who has undertake personally to execute any work or service for, and under the immediate direction and control of, another person, including an outworker (that is, a person who works outside his or her organisation’s premises). This definition excludes work or service performed in a professional capacity or as a contractor for another person when such work or service is not regulated by a specific contract of service.

In the past the Department of Labour and Industrial Relations used to carry out a series of inspections to tackle the problem of bogus self-employment – mostly in the English language tuition sector – on the basis that the practices that were being adopted established an employer/employee relationship, since ‘self-employed workers’ were found to be under the immediate direction and control of another person (the employer).
The report also gives the following picture of the occupations held by self-employed without employees in 2006 (see Table Two). These contracts of employment are now becoming the norm, and no longer the exception. Even simple truck drivers with a reputable soft drinks company are being employed as ‘self employed’, and it is high time that the department takes immediate action so as to stop this flagrant infringement of the Employment and Industrial Relations law.
 
It is irrelevant as to who is the perpetrator of this abuse: nobody is above the law, and the government is not the exception. The Director must see to it that the government, through its foundations or authorities or whatever, does not continue to infringe the right of the workers by enticing them to sign a new contract of employment as self employed.

Obviously this means that, from the rate per hour that these workers get paid, they have to pay national insurance and VAT. They have no employment or injury benefits, no vacation leave, no sick leave and no maternity or paternity leave and they work longer hours. These are the conditions of works that the government is promoting. Table Three shows that in 2006 self-employed worked 1.7% hours more than the employees.

It is useless for the European Union to promote and secure better working conditions for EU workers when the government, which should lead by example, undermines its own workers’ conditions and pioneers bogus self-employment.

The report also states that in Malta, there is no data available about bogus self-employment practices. However, the report says this does not mean that this phenomenon doesn’t exist. It is sad to learn that the unions and the department of labour have not established any data on the subject; nor have they made any public announcements on this abuse either.
 
It is even sadder to have the government, which was once the champion of worker’s rights, to emulate the bad practices of the private sector, and introducing bogus self-employed workers.

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