FAQs – Digital Platform Delivery Wages Council Wage Regulation Order, 2022
The ongoing debate on the regulation of platform work and the protection of platform workers has culminated in the publication of the Digital Platform Delivery Wages Council Wage Regulation Order, 2022.
What is this Order all about? These FAQs seek to answer a few of the more obvious questions that are being asked about the new employment regulatory framework that is being introduced by virtue of this Order.
What does the Order aim to do?
The scope of this Order is to ensure that persons who are engaged to provide paid services consisting of the delivery of any consumer product, are able to gain access to employment and social protection rights.
The Order seeks to achieve this aim by ensuring the correct determination of the employment status of such persons, by promoting transparency, fairness and accountability in algorithmic management in respect of such workers, and by enhancing transparency, traceability and awareness of developments in relation to such activity.
Who falls within the scope of this Order?
This Order essentially applies to workers who are engaged either by work agencies (i.e. agencies that place or assign such workers with digital labour platforms) or directly by digital labour platforms (i.e. electronic platforms that provide services enabling product deliveries to consumers), in order for such workers to provide product delivery services.
The form or contractual designation of a worker’s arrangement is irrelevant for the purposes of the Order. As such, the Order prioritises substance over form when considering its applicability to contractual arrangements or relationships.
Are delivery personnel considered to be employed or outsourced sub-contractors?
The Order creates a legal presumption of an employment relationship. When considering the employment status of a platform worker, it will be presumed that there is an employment relationship between the platform worker as an employee, and the work agency or the digital labour platform as the employer (depending on whether the worker is engaged directly with a work agency or directly with a digital platform).
The implications of this legal presumption are significant, insofar as it will be presumed that the provisions of the Employment and Industrial Relations Act and the regulations and orders that are issued under its authority, would also apply to the relationship between the platform worker and the work agency or digital platform (as the case may be).
If the work agency or digital platform claim that a contractual relationship with a platform worker is not an employment relationship, the work agency or digital platform have the burden of proving such allegation on the basis that the agency or platform does not directly or indirectly control the performance of work by the platform worker. The Order sets out a number of criteria as a legal basis for determining the level of control exercised by a work agency or digital platform over a platform worker.
Any claims relating to the determination of the status of a platform worker in light of the said legal presumption, must be made to the Director General responsible for Employment and Industrial Relations, who is responsible to investigate such claims and enforce the said legal presumption.
Are there any specific conditions regulating wages?
The employer would be bound to grant platform workers, in respect of all hours of work, the same wages paid to a comparable employee employed by the same employer, which must not be less than the applicable national minimum wage. If there is no such comparable employee, the pay must not be less than the applicable national minimum wage.
The employer will also be obliged to grant platform workers the same conditions of employment (including statutory bonuses, income supplements and general Government increase in wages) as those enjoyed by a comparable employee, which conditions may never be less than the minimum statutory employment conditions. Where there is no such comparable employee, such other employment conditions must comply with the minimum employment conditions that may be prescribed by applicable law.
The Order also prescribes minimum overtime rates. Overtime rates will be payable to all whole-time platform workers as follows:
What about vacation leave?
As already stated above, the employer will be obliged to grant platform workers the same conditions of employment as those enjoyed by a comparable employee, which conditions may never be less than the minimum statutory employment conditions. Where there is no such comparable employee, such other employment conditions must comply with the minimum employment conditions that may be prescribed by applicable law.
This means that, at the very least, platform workers will benefit from the minimum statutory annual vacation leave entitlement that may be set out by applicable employment law and regulations from time to time.
Moreover, when a platform worker provides work on a national holiday or any other public holiday, although remuneration for such work will be at the normal rate, the platform worker will be entitled to an additional number of hours so worked as vacation leave during that same calendar year in respect of each such national or other public holiday.
Are there any other leave entitlements?
Yes, the Order secures various other leave entitlements for platform workers, including:
Can a delivery driver be asked to pay a fee for entering into an agreement with an agency?
No payments or charges may be demanded or levied through a deduction from wages from any platform worker in consideration for recruitment by a work agency or any digital labour platform, or in consideration for concluding a contract of employment with a work agency or any digital labour platform.
Likewise, no deduction may be made from the wages of a platform worker by a work agency or digital labour platform in consideration of any other circumstances, except and insofar as such deductions are permissible in terms of law.
Are delivery drivers entitled to receive a summary of the conditions regulating their engagement?
Yes, platform workers may not be left in the dark as to the conditions that regulate their work.
Where the employment status of a platform worker is deemed to be one of employment, the employer must give such worker a letter of engagement or a signed declaration. This document must set out and confirm certain fundamental information relating to the engagement which the law binds the employer to provide to its employees. This document must be provided to the employee within seven calendar days from the commencement of the employment relationship.
Moreover, the employer has a duty to provide to the platform worker the reasons for any difference in treatment, if the worker considers that his employer may have treated him in a manner which infringes a right conferred on him by law, and if the worker requests such information.
Does the Order introduce any other safeguards?
The Order introduces various other safeguards that are specific to platform work, including in relation to:
When does this Order come in force?
This Order shall come into force within three months of its publication in the Government Gazette. The Order was so published on 21 October, 2022, meaning that it will become effective on 21 January, 2023.
Mariella graduated from the University of Malta with a doctorate in law in 2005. She completed a master’s degree in ‘European Private Law’ from the La Sapienza, University of Rome, and was admitted to the bar in Malta in 2006.
Mariella is a people person – and it is this attribute which has really characterised and shaped her career.
Over the years, she headed the legal departments of several corporate services firms. Due to her skillset, she was also entrusted with managing and overseeing operations and human resources, where she gained technical and practical experience in various corporate, commercial and employment matters.
Her practical hands-on experience and insight perfectly complement Mariella’s technical knowledge of employment law, thus placing her in an ideal position to understand and advise employers and employees alike on various matters that may arise at the workplace.
Mariella is passionate about employment law matters and provides her clients with the highest-quality legal service to achieve the best possible outcome and resolve any employment law related issues and concerns.
Bradley graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006. He advises clients on various corporate, commercial, employment and regulatory matters, with particular focus on company and financial services law.
He has assisted clients in various corporate and commercial matters by providing company law advice and assisting in the implementation of corporate finance, restructuring, mergers and acquisitions and similar transactions.
Bradley has also advised and assisted investment funds, fund managers and other investment services providers, banks and financial institutions, on various legal and regulatory matters relating to the setting up, authorisation and ongoing conduct of their activities in Malta.
His practice also covers general employment law matters. Bradley’s experience in company and financial services law enables him to focus on various corporate and regulatory aspects of employment relationships. In particular, he advises organisations on the implementation of employee share option and participation schemes, the implications of business transfers on employment relationships, as well as relations with senior employees.
Karl graduated Doctor of Laws from the University of Malta in 2005 and was admitted to the Bar in Malta in 2006.
Karl has gained considerable expertise in technology law and regularly assists clients in relation to intellectual property issues, commercial contracts and ways to ensure compliance with the General Data Protection Regulation (GDPR) and privacy laws. Whilst such matters used to be only given incidental importance when dealing with employment matters, they are now widely acknowledged to be vital in all employment relationships.
He is also regularly engaged by C-level executives to assist in negotiating employment contracts and settlement agreements.
Karl advises across a multitude of industries including technology; marketing; adtech; financial services; gaming; esports; consumer products; and media and telecommunications.