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Maltese Laws |
EQUALITY FOR MEN AND WOMEN ACT
To promote equality for men and women.
9th December, 2003
ACT I of 2003, as amended by Legal Notice 427 of 2007 and Act IV of
2009.
Women Act.
"Commissioner" means the Commissioner for the promotion of equality appointed under article 11, and Commission means the
Commission established under the said article;
"discrimination" means discrimination based on sex or because of family responsibilities and includes the treatment of a
person in a less favourable manner than other person is, has been or would be treated on the grounds of sex or because of family
responsibilities and "discriminate" shall be construed accordingly;
"emp loyment" means any g a in ful act i vity includi ng self- employment and includes promotion and transfer to another
post, as well as access to vocational or professional training, the duration of the employment or its extension or termination;
"Minister" means the Minister responsible for equality;
"sex ual harassm ent" mean s the unl awful act ivi ties listed in article 9(1);
"vocational training" includes all forms of vocational training and retraining.
(2) For the purposes of this Act, and unless the context otherwise requires, the terms "man" and "woman"
include males and females irrespective of their age.
(3) For the purposes of subarticle (1) discrimination based on sex or because of family responsibilities is:
(a) the giving of less favourable treatment, directly or indirectly, to men and women on the basis of their sex or because
of family responsibilities;
(b) treating a woman less favourably for reasons of actual or potential pregnancy or childbirth;
(c) treating men and women less favourably on the basis of parenthood, family responsibility or for some other reason related to sex;
(d) any treatment based on a provision, criterion or practice which would put persons of one sex at a particular
disadvantage compared with persons of the
Short title.
Interpretation. Amended by: IV. 2009.2.
appropriate and necessary and can be justified by objective factors unrelated to sex.
(4) Nothing in subarticle (2) shall be deemed to constitute discrimination in so far as such treatment -
(a) is given to grant special protection to women during childbirth or pregnancy;
(b) constitutes measures of positive action for the purpose of achieving substantive equality for men and women.
(4A) Indirect discrimination may be proved by any means of evidence including statistical evidence.
(5) In relation to access to employment, a less favourable treatment which is based on a characteristic related to sex
shall not co nsti tut e discrimi natio n where by reason of t h e p a rt icular occupational activities concerned, or of the context
in which they are carried o u t, such a characteristic co nstitu tes a gen u ine occupational requirement and where such treatment
remains within
the limits of what is appropria te and neces sary in the circumstances:
Provided that the burden of proof shall lie on the person who alleges that there is a genuine occupational requirement.
Scope of this Act. 3. Nothing in this Act shall be construed as affecting any rule relating to religious practice, access to priesthood or membership in any religious order or other religious communities.
Discrimination in employment.
Cap. 452.
(2) Without prejudice to the provisions of article 26 of the Employment and Industrial Relations Act, employers shall also be deemed to have discriminated against a person if such employers -
(a) manage the work, give promotions, distribute tasks, offer training opportunities or otherwise arrange the working conditions
in a manner that employees are assigned a less favourable status than others on the basis of sex or because of family responsibilities;
or
(b) alter the working conditions, or the terms of employment of employees to the detriment of such employees
after such employees have invoked any right accorded to him under this Act or claimed the performance in his favour of any
obligation or duty under this Act; or
(c) neglect their obligation to suppress sexual harassment as provided under article 9(2).
Report on employment procedures.
Commissioner, as the case may be, within ten working days of such a request with a report on the allegation made or the procedures
used by the em ployers in the m at t er alleged to constitute such sexual harassment or discrimination.
(2) The employers shall be entitled to claim from the person requesting the report, reimbursement of such reasonable expenses incurred
in drawing up and making the report:
Provided that such expenses may be recovered from the person responsible for such sexual harassment or discrimination if it is
found that such sexual harassment or discrimination did in fact take place.
(2) Nothing in subarticle (1) shall be deemed to constitute discrimination in so far as the conditions under which the facility or the i n suran ce cover is o f fered or with held reflect g e nuin e consi d eratio ns b a sed on the fi nan c ial ri sk i n the gr ant of such facilities or of such insurance cover.
Banks and financial institutions.
(2) The provisions of subarticle (1) shall not apply where the system of community of acquests or community of the residue under separate administration subsists between the spouses.
Participation of spouses in the activities of a self employed partner.
(a) the access to any course, vocational training or guidance; or
(b) the award of educational support for students or trainees; or
(c) in the selection and implementation of the curricula; or
(d) in the assessment of the skills or knowledge of the students or trainees.
(2) Failure by the persons responsible for such establishments and entities to fulfil their obligation to suppress sexual harassment
as provided under article 9(2) shall for the purposes of subarticle (1) of this article constitute discrimination.
(3) It shall be the duty of educational establishments and entities providing vocational training, within the limits of
their
Education and vocational guidance.
discrimination.
Sexual harassment.
Amended by:
L.N. 427 of 2007.
Cap. 452.
9. (1) Without prejudice to the provisions of article 29 of the Employment and Industrial Relations Act, it shall be unlawful for any person to sexually harass other persons, that is to say:
(a) to subject other persons to an act of physical intimacy;
or
(b) to request sexual favours from other persons; or
(c) to subject other persons to any act or conduct with sexual connotations, including spoken words, gestures or the production,
display or circulation of any written words, pictures or other material, where the act, words or conduct is unwelcome to the persons
to whom they are directed and could reasonably be regarded as offensive, humiliating or intimidating to the persons to whom
they are directed; or
(d) the persons so subjected or requested are treated less favourably by reason of such persons’ rejection of or submission to
such subjection or request, it could reasonably be anticipated that such persons would be so treated.
(2) (a) Persons responsible for any work place, educational establishment or entity providing vocational training or guid a nce or
for any establishment at wh ich good s, services or accommodation facilities are offered to the public, shall not permit other persons
who have a right to be present in, or to avail themselves of any facility, goods or service provided at that place, to suffer sexual
harassment at that place.
(b) It shall be a defence for persons responsible as aforesaid to prove that they took such steps as are reasona b ly
practic able to pre v ent suc h sexual harassment.
(3) Persons who sexually harass other persons shall be guilty of an offence against this article and shall, without prejudice to
any greater liability under any other law, be liable on conviction to a fine (multa) of not more than two thousand and three hundred and twenty-nine euro and thirty-s even cents (2,3 29 .3 7) o r to imprisonment
of not more than six months or to both such fine and imprisonment.
Discriminatory advertisement. Cap. 452.
10. (1) Without prejudice to the provisions of article 26 of the Employment and Industrial Relations Act, it shall be unlawful for persons to publish or display or cause to be published or displayed any adv e rtisem ent, or, otherw ise
to advertise a vacancy for employment which discriminates between job seekers or to request from job seekers information concerning
their private life or family plans:
Provided that the provisions of this subarticle shall not apply in such cas es where empl oyers prov e t h at the work in
connection with the situation advertised can only be performed by a
person of a specific sex.
(2) It shall not be lawful for persons to publish or display or cause to be published or disp layed any advertisement which promotes
discrimination or which otherwise discriminate.
(3) Persons who act in breach of subarticle (1) or (2) shall be guilty of an offence against this article and shall, on conviction,
be liable to the penalties established for contraventions.
(4) For the purposes of subarticle (1), advertising includes disseminating information about the vacanc y by word of mouth
from person to person.
(2) All the members of the Commission shall be appointed by the Prime Minister from among such persons appearing to him to be best
suited to deal with issues of equality for men and women, and, or, administrative issues connected therewith.
(3) Every member of the Commission shall hold office for a term of two years and may be re-appointed at the end of their term of
office.
(4) The Prime Minister may terminate the appointment of members of the Commission if he is satisfied that:
(a) without the consent of the Commission the members failed to attend the meetings of the Commission during a continuous period of
six months;
(b) the members are undischarged bankrupt persons, or have made an arrangement with their creditors, or are insolvent or have
been found guilty of any voluntary crime against the person; or
(c) the members are incapable of carrying out their duties. (5) The quorum of the Commission shall be of four members,
one of whom shall be the Commissioner.
(6) The validity of any proceedings of the Commission shall not be af fec t e d by a n y va cancy among the members of the Commission
or by any defect in the appointment of any member.
(7) Decisions of the Commission shall be taken by the majority of the votes of the members present. The Commissioner shall also
have a casting vote.
(8) Subject to the provisions of this Act and of any regulation made thereunder, the Commission may appoint sub-com mittees and,
in general, shall regulate its own proceedings.
National Commission for the Promotion of Equality for Men and Women.
Functions and status of Commissioner and of Commission. Amended by:
IV. 2009.3.
Commission, shall have the following functions, that is to say:
(a) to identify, establish and update all policies directly or indirectly related to issues of equality for men and women;
(b) to identify the needs of persons who are disadvantaged by reasons of their sex and to take such steps within its power and to
propose appropriate measures in order to cater for such needs in the widest manner possible;
(c) to monitor the implementation of national policies with respect to the promotion of equality for men and women;
(d) to liaise between, and ensure the necessary co- ordination between, government departments and other agencies
in the implementation of measures, services or initiatives proposed by Government or the Commission from time to time;
(e) to keep direct and continuous contact with local and foreign bodies working in the field of equality issues, and with other groups,
agencies or individuals as the need arises;
(f) to work towards the elimination of discrimination between men and women;
(g) to carry out general and independent investigations with a view to determine whether the provisions of this Act are being
complied with;
(h) to independently investigate complaints of a more particular or individual character to determine whether the provisions
of this Act are being contravened with respect to the complainant and, where deemed appropriate, to mediate
with regard to such complaints;
(i) to inquire into and advise or make determinations in an independent manner on any matter relating to equality between men and
women as may be referred to it by the Minister;
(j) to provide independent assistance, where and as appropriate, to persons suffering from discrimination in enforcing
their rights under this Act;
(k) to keep under review the working of this Act, and where deemed required, at the request of the Minister or otherwise,
submit proposals for its amendment or substitution;
(l) to perform such other function as may be assigned by this or any other Act or such other functions as may be assigned by the
Minister.
(2) On the appointment by the Prime Minister of the first members, the Commission shall have a legal personality separate
from that of the Government and its judicial representation shall
vest in the Commissioner:
Provided that the Commission may appoint any one or more of its members or any other person, to appear in its name and on its be ha
lf i n an y j u di ci al pro c e e d i ngs, and on any act, co ntract, agreement or document whatsoever.
(2) The Executive Director shall hold office under such terms and conditions as the Commissioner, with the concurrence of the Minister,
may establish. Where the Executive Director is a public officer seconded from the Government, such person shall have the right on
the termination of the secondment to revert to the former post without loss of rank or seniority.
(3) The Commission may, after consultations with the Minister and subject to the approval of such Minister as to their number,
remuneration and terms and conditions of service, appoint such officers as it deems fit.
(4) The Prime Minister may, at the request of the Commission, from time to time direct that any public officers shall be detailed
for duty with the Commission in such capacity and with effect from such date as may be specified in the direction.
(5) The period during which a direction as aforesaid shall apply to any officers specified therein, shall unless the officers
retire from the public service, or otherwise cease to be public officers at an earlier date, and on the date specified in the direction
or on the happening of any of the following events, that is to say -
(a) the acceptance by such public officers of an offer of permanent employment with the Commission; or
(b) the revocation by the Prime Minister of any direction made by him under this article in relation to such officers.
(6) Where a public officer is detailed for duty with the
Commission under this article, such officer shall, during the time
t h e directio n has ef fect in re lation to hi m, be u nder the administrative authority and control of the Commission,
but shall for all other intents and purposes remain and be considered and
treated as a public officer and without prejudice to the generality of the aforesaid such public officer:
(a) shall not during the time while he was so detailed -\
(i) be precluded from applying for transfer to a department of the Government in accordance with the terms and conditions
of service attached to the appointment under the Government held by the officer at the date on which such officer was detailed for
duty; or
(ii) be so employed that his remuneration and conditions of service are less favourable than
Personnel of the
Commission.
Detailing of public officers.
Cap. 93. Cap. 58.
those which are attached to the appointment under the Government held by such officer at the date the officer was so detailed
or which would have become attached during the said period had such officer not been so detailed; and
(b) shall be entitled to have the service with the Commission considered as service with the Government
for the purpose of any pension, gratuity or benefit under the Pensions Ordinance and the Widows and Orphans’ Pension Act; and
(c) any application made under paragraph (a)(i) shall be given the same consideration as if the applicant had not been so detailed.
(7) The Commission shall pay to the Government such co ntribu tion s as may from t ime to ti me b e d e termined
b y th e Minister responsible for finance in respect of the cost of pensions and grat uities earned by an officer detailed for duty
with th e Commission during the period in which the officer was so detailed.
Funding of the
Commission.
(2) At least two months prior to the end of its financial year the Comm ission sh all submit to the Minister , a business plan (including a financial plan) covering the proposed activities of the Commission during the following financial year. When approved by the Minister and by the Minister responsible for finance, such business plan, shall be the approved budget of the Commission.
Accounts. (3) The Commission shall keep proper accounts of its income an d ex pend it ure and sh al l p r ep are and send to the Minister statements of accounts in relation to each of its financial years.
Audit. (4) The accounts of the Commission shall be audited by an audito r or auditors ap pointed by it with t h e approval of t h e Minister:
Provided that the Minister responsible for finance may require the books and records of the Commission to be audited or examined
by the Auditor General who for the purpose shall have power to carry out such physical checking or other verifications, and may d
e m a nd and acquire such info rmati on, as m a y be necessary.
(5) The financial year of the Commission shall commence on the 1st January and shall end on the 31st December of each year:
Provided that the first financial year of the Commission shall begin on the coming into force of this Act and end on the 31st
December of the next following year.
Annual report. 15. (1) As soon as practicable after the end of every calendar year, but in any case not later than the 31st day of March of the followi ng year, the Commissi on may su bmit to t h e Minister a report of its activities during the year (such report hereinafter in
this section referred to as an "annual report").
(2) Each annual report shall include a general report of developments during the period to which it relates in respect
of matters falling within the functions of the Commission and shall also include a report on the activities, initiatives, investigations
and initiatives undertaken to suppress discrimination and to promote equality for men and women.
(3) The Minister shall, as soon as practicable but in any case n o t later than two months after its submission to him b y the
Commission, cause a copy of the annual report together with a copy of the then current business and financial plan of the Commission
to be laid on the Table of the House.
16. The Commission shall be exempt from any liability to pay tax, in respect of its income, under the Income Tax Act.
(2) The Commissioner may also initiate investigations on the receipt of a complaint in writing by persons who claim to be the victims
of an act or omission contrary to the provisions of this Act.
(3) If it appears to the Commissioner that persons who wish to make a complaint under subarticle (2) require assistance to formulate
the complaint, the Commissioner shall take or order the taking of such reasonable steps as may be necessary to assist such persons
in making the complaint.
Exemption from Income Tax. Cap. 123.
Complaints and investigation.
(a) dismiss the complaint, or
(b) find that the complaint is proved and thereupon, shall:
(i) where the action complained of constitutes an offence, make a report to the Commissioner of Police for action on his part;
or
(ii) where the action complained of does not constitute an offence, call upon the person against whom
the complaint is directed to redress the situation, and mediate between the complainant and such person to settle the matter.
(2) The findings of the Commissioner under subarticle (1) shall not be binding on the complainant and the person against whom the
complaint is directed unless they expressly declare in writing to be so bound.
(3) In respect of general investigations or of investigations upon complaints by the Commissioner, the Minister may prescribe:
(a) the procedure whereby the Commissioner may require any person to furnish such information as may be necessary for the
investigation, as well as the time within which and the manner in which such
Action by the Commissioner following an investigation.
information is to be furnished;
(b) the procedures to be followed where a person fails to supply such information, the circumstances in which following an
investigation as aforesaid, the Commission may itself take legal action.
(4) Regulations under subarticle (3) may provide, in the case of an al leged d i scrim i n a t i o n by on e p e r s on again s
t anot her, th e arrangements whereby the Commission may itself refer the matter to the competent civil court or to the Industrial
Tribunal for redress:
Provided that nothing in this subarticle shall prevent any person having a legal interest from himself taking action for redress or
where action has been taken by the Commission, from joining in and becoming a party to the suit.
(5) The Commissioner and every other member of the Commission or any member of the staff of the Commission shall
t reat any m atter co mi ng to thei r kno wled ge i n t he co urse of an investigation as confidential and shall not disclose the
same unless such disclosure is necessary in the course of a prosecution or an action for redress under this Act.
Civil proceedings. Cap. 452.
19. (1) Without prejudice to the provisions of article 30 of the Employment and Industrial Relations Act, a person who alleges that any other person has committed in his or her regard any act which under any of the provisions of this
Act is unlawful, shall have a right of acti on befo re the co m p etent co urt of civil jurisdiction requesting the court to order
the defendant to desist from such unlawful acts and, where applicable, to order the payment of compensation for such damage suffered
through such unlawful act.
(2) In any proceedings under subarticle (1) it shall be sufficient for the plaintiff to prove that he or she has been treated
less favourably on the basis of sex or because of family responsibilities and it shall be incumbent on the defendant to prove that
such less favo ur ab le treatm e n t was just if ied in accord ance wit h th e provisions of this Act.
Power to make regulations.
(a) for providing for any matter which is required or authorised by the Act to be prescribed; and
(b) for providing for any matter relating to equality between men and women; and
(c) for the exemption of any person, or class of persons or body, from the requirements of article 4(1) in so far as it relates to
article 4(1)(a) and (b), article 5 and article
10 as may be specified in the aforesaid regulations;
provided that any such exemption shall only be
prescribed by the Minister after consultation with the
Commission and provided that such exemption shall
be for a specified period of time which can be renewed by the Minister after consultation with the Commission.
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