The Commission’s withdrawal of the Maternity Leave Directive which had not made any legislative progress since 2008, paved the way for an innovative and comprehensive outlook on tackling the lack of female representation in employment. Such approach centres around the Work-Life Balance Initiative which constitutes one of the outcomes of the European Pillar of Social Rights. Whilst considering the changes in society over the years, this initiative ensures a fairer division of responsibilities between males and females, with the aim of supporting working parents and carers.
As part of the process of modernising the existing regulatory framework, the Work-Life Balance Directive (Directive on work-life balance for parents and carers) was introduced and became part of EU law in August 2019. This Directive, as stated in Article 2, is applicable to all workers and Member States have three years to transpose it into their national legislation. As encompassed in Article 1, the Directive is “designed to achieve equality between men and women with regard to labour market opportunities and treatment at work through facilitating the reconciliation of work and family life for working parents and carers.” This objective is fulfilled by legislative action with respect to family-related leaves, including as stated in Article 1(a), “paternity leave, parental leave and carers’ leave”, and as laid down in Article 1(b), “flexible working arrangements for workers who are parents, or carers.”
The Directive’s pinnacle legislative measure which prior to this Directive was not granted under EU Law, is the introduction of a 10-day paternity leave for fathers or equivalent second parents to be availed of at the moment of birth of their child. Payment of such leave must be made, at minimum, on the same level as sick leave. Moreover, as observed in Article 4, the right to paternity leave “shall not be made subject to a period of work qualification or a length of service qualification” and shall “be granted irrespective of marital or family status as defined in national law”. This right emphasises the EU’s focus on encouraing fathers to take an active role in the care of their children, whilst also securing a healthy division of responsibilities between mothers and fathers to ensure an equal playing field in the labour market. In Malta, at present, in line with the Minimum Special Leave Entitlement Regulations, a father is only allowed one working day as birth leave.
Article 5 of this Directive bolsters the right to four months of parental leave. This was already in existence yet in virtue of this Directive, two out of the four months of parental leave cannot be transferred from one parent to another and will be compensated. Unlike paternity leave, Member States are entitled to subject the right to parental leave to “a period of work qualification or to a length of service qualification, which shall not exceed one year.” Article 5(6) permits flexibility in making use of parental leave and in this case, the employer must take into consideration “the needs of both the employer and the worker.” This reflects the humane element of the law which is not merely based on objective criteria but must cater also for the personal needs of whom it intends to protect. This element of flexibility is of utmost importance to the extent that if the employer does not comply with the employees’ requests, reasons for the refusal must be provided. The refusal must be done in writing within a reasonable period.
Deadline for transposing the Directive is the 2nd August 2022
Carers’ leave of five working days annually is a brand new measure introduced in virtue of this Directive. This right is granted to workers who care and provide for their relatives. Even though Article 6 does not demand payment for such leave, Member States are urged to provide appropriate payment so as to entice males to exercise such right.
Apart from family-related leaves, the Work-Life Balance Directive also caters for flexible working arrangements, including reduced or modified hours as well as teleworking. Article 9 states that “the right to request working arrangements for caring purposes” must be used by workers “with children up to a specified age, which shall be at least eight years”. Once again, employers must respond to requests for flexible working arrangements within a reasonable period of time, considering the needs of both the employer and worker and reasons for refusal of such requests must be given. Member States are bestowed with the discretion to determine whether or not to subject this right to “a period of work qualification or to a length of service qualification, which shall not exceed six months.” Moreover, Article 7 of this Directive retains the right offered to each worker to take time off in the case of pressing family matters, like sickness or accident, where the presence of the worker is required.
Apart from providing workers with vast ranging tools to promote equilibrium between their personal and professional lives, the Work-life Balance Directive also warrants adequate safeguards to guarantee such rights. Member States must take an active role in preventing discrimination and/or dismissal of workers on the basis of their uptake or request for uptake of the aforementioned leaves or the fact that they have made use of the right to request flexible working arrangements.
Despite the fact that the EU Work-life Balance Directive must be transposed by Member States by the 2nd August 2022, Malta has yet to fulfil this task with less than a month to go. Whilst EU directives are binding, Article 288 TFEU states that the Member States are bestowed with discretion as to the “form and methods” of implementation. It will be interesting to witness the manner in which the Maltese authorities will adopt this Directive, especially considering the fact that under Maltese employment law, fathers are entitled to the bare minimum when it comes to the care of their children. So far only Greece, Austria, Estonia, Netherlands, Finland, Sweden and Denmark have implemented the Directive.
This document does not purport to give legal, financial or tax advice. Should you require further information or legal assistance, please do not hesitate to contact Dr Christine Calleja.