Automatic overtime is not a worker’s right

Mr Justice Mark Chetcuti held in his decision of 22 January 2014, an employee was not justified not to sign a contract of employment because he wanted that his employer guarantee a number of hours in overtime.

This was ruled in a Court of Appeal judgement in the name of George Abela -v- Rosaria and Joseph Calleja who operated Faith Garage.

George Abela, a van driver, lodged an appeal from an Industrial Tribunal decision that decided that his termination of employment was justified. The Industrial Tribunal held that the employer Calleja wanted to change Abela's working conditions from a seven day week of 12 a hours to a six day week of 12 hours of which he works eight hours. Abela refused to sign this new contract because he would have received less in wages.

Calleja had told the Tribunal that the Department of Labour and Industrial Relations had inspected his offices and was instructed to change some work practices. Jonathan Balzan from the Department testified that Abela had filed a report against his employer, since his wages were being reduced. The Department found other irregularities. Conrad Galea had prepared an employment contract in line with these instructions.

The whole issue started when Calleja was deducting Abela's wages to compensate for damage to a van involved in a traffic accident. The Department of Labour and Industrial Relations asked for Abela's employment contract. Article 15 of the Employment and Industrial Relations Act states that an employer cannot reduce an employee's wages. Therefore Abela's complaint was justified and the Tribunal commented that the employer should have an insurance coverage, since traffic accidents could easily take place.

Furthermore, the Hire of Cars or Private Buses Wages Council stipulates the employment conditions of a van driver, who should work six days a week for 12 hours, but for a maximum of 46 hours. This would mean that Abela would have earned less and this would influence his pension entitlement negatively. However, Abela's demand to guarantee overtime was not his prerogative, but that of the employer. Since Abela refused to sign the contract of employment, the Industrial Tribunal agreed that Calleja had no option but to terminate the employment.

Abela appealed this decision and held that the probation period considered by the Tribunal was not legal, since he was in employment for four years and a new contract was not required. Furthermore, the Tribunal did not consider that the new contract was to reduce his working conditions.

Mr Justice Chetcuti held that it was clear that Abela's previous employment condition was not in conformity with the law, namely that he worked 72 hours a week and that there was no sufficient time to rest as required. 

This situation was discovered by a disagreement between the employee and the employer, when the employee reported the employer reducing his wage following a traffic accident he was involved in. This problem was resolved immediately, however, other irregularities were discovered and the Department wanted them to be addressed. In fact, a sample contract was available on the Department's website. Abela stuck to his guns and refused to sign the new employment contract, unless he was guaranteed that he would work 72 hours.

The Court of Appeal agreed with the Tribunal in that the probation period mentioned in the new employment contract was not valid, since it was merely an exercise that would have brought all employment issues in line with the law. However, in justifying the termination of the employment, the Tribunal correctly looked at the whole picture, since the plaintiff refused to sign the contract and subject himself to the wages and minimum hours imposed by the law. Abela repeatedly held that he wanted to be flexible on the hours he worked. Mr Justice Chetcuti pointed out that both parties were subject to the law, in that as much as Mr Abela had a right to continue to be employed indefinitely, the employer also was bound to offer working conditions that the law imposed. The Court held that from the evidence produced before the Tribunal, it was clear that the employer respected the law in redrafting an employment contract, which the employee refused to sign. As a consequence, the Tribunal was correct to conclude that the termination of employee was a valid option for the employer and therefore, turned down the appeal.

Dr Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates.

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