Penalties for employers

http://www.timesofmalta.com/articles/view/20160112/opinion/Penalties-for-employers.598466

As had been reported, the Malta Employers’ Association (MEA) is not against employing disabled workers but grappling with genuine barriers to doing so. I am of the understanding that the Church of Malta was in agreement with this position. Fr Joe Borg (January 3) seems to confirm this.

I shall not enter into the legal merits of the case as my professional office is legal counsel to the MEA on this matter. But I feel obliged, for clarity purposes other than anything else, to highlight some salient matters in relation to the way the long enacted law has been put into effect, particularly with a view to avoid deviating from the main arguments and facts.

Joe Brincat’s ‘Jobs for handicappedpeople’ (January 2) says that “if there is a law it has to be applied, without any arguments about being inconvenient”. Inconvenience is not the issue. Being unjustly penalised is the issue.

A number of unanswered questions surround the present pending issue on the employment of disabled persons.

The Disabled Persons (Employment) Act, Chapter 210 of the Laws of Malta, was enacted in 1969. In virtue of an amendment in 2015, the law now establishes that a contribution (penalty/fine) is to be paid by the employer for any shortfall in the quota of disabled persons in employment, varying from €800 for the year 2015 up to €2,400 for 2017. Within a short span of time, the ETC issued invoices to employers requesting the payment of this contribution. It seems that employers were also told that they would lose other unrelated benefits should this contribution not be paid.

The MEA raised various questions as it and the public have a right to know the whole truth. It is definitely not a question of being against making disabled persons employable, or aiding such persons to enter into the labour market.

It is not a question of burdening the employers. I trust we are all in agreement on this. The question is – in a couple of months, can we do what has not been done in 45 years? I believe that this is where our authorities will get it wrong, despite, as Fr Borg puts it, the “praiseworthy intentions” that the government may have.

A 2005 report by Working Group on Inclusive and Special Education had said that data collated by the Principal Permanent Secretary showed that an internal survey “revealed that there were 174 public service employees who were registered as disabled persons with the KNPD, or 0.6 per cent of the total of the [then] 30,644 employees in the service. That total was minute, compared with the 1,738 employees in government departments and ministries who claimed to be disabled, and were classified as such, in an NSO Labour Force Survey”.

It is only legitimate to ask – what is the situation today? Have these figures been verified or updated before putting into force the penalties imposed on employers? Has the government updated its records? Is it true that the public sector has a shortfall too? And by how much? Has the publicsector been fined too? Are taxpayers paying for any penalties imposed on government departments?

The same report said that the number of really disabled persons in employment was, probably, very much lower. It noted, nevertheless, that month after month there are several hundred registrants on the ETC Register of Unemployed Disabled Persons.

Now it is important to note that this ETC register is very particular. First and foremost, employers do not have access to this register. Secondly, it is the individual alone who opts to register or otherwise. The ETC says that “a disabled job-seeker had a right not to register as such if their disability was not very apparent, and this skewed figures for quota purposes” (Times of Malta, July 2, 2013).

This could mean that an employer might have employees who are listed on the register without his knowing. Is this correct? What happens if these employees need some special attention but are deprived of such on the premise alone that the employer was not aware of the disability? What happens if the employer assigns a particular job which could be dangerous to a person with a disability, unknown to the employer? What if the employee is given a particular job to perform which could be detrimental to fellow work colleagues or third parties?

On the other hand, why should an employer be penalised if he employs a disabled person who refuses to register himself on the ETC register? Why should a disabled person, in terms of the KNDP, not be so recognised for employment purposes simply because he refuses to register on the ETC register?

Again, as Borg puts it, “in Malta there are several registers of people with disability”. Is it fair and just that an employer is facing fines when we do not have a coherent and codified register of disabled persons? Why is a person entitled to a disability parking space, disability social services, etc, but who is not registered on the ETC register, not considered a disabled employee? Hence the fine which his employer is to incur.

Do we know how many persons are registered? Are we entitled to know? And if not, how are employers guaranteed that there is enough ‘supply’ to fill the national quota as established by law? Should an employer be penalised if there are no disabled persons on the ETC register available to work? Is that fair? And if there are, should an employer engage a disabled registered person simply to comply with the law?

What guarantee would such an employee have that he is assigned the right work for him? How are the employees’ rights safeguarded? How will an employer safeguard his rights at law should he make himself compliant but fails to assign the proper duties to a disabled person?

The replies to these questions and more should have been made available before the implementation of the law and worse still, the imposition of penalties.

The MEA insists on replies. It wants clarity, it wants to know the exact playing field within which it and its members are operating. It wants to be sure that the employees’ rights are safeguarded without detriment to the employers’ rights. It wants to ensure that its members are not fined irregularly and unjustly. It wants to ensure that its members are not forced to pay fines despite the fact that they have not been given the opportunity to defend themselves by proving otherwise.

It wants to ensure that the right legal framework is in place and all data is available before the law is implemented. Nobody should be unjustly and unfairly disadvantaged with the promulgation of a law. This is what the MEA is rightlyfighting for.

Only two years ago (July 2013), then minister, now President, Marie-Louise Coleiro Preca, said on this issue that “such a rule was not easy to enforce because the issue of mentality was not yet centre stage”.

Have things changed so much in two years? Can we be convinced that today all is right and ripe to enforce this rule?

It might have taken 45 years to implement the law. But is that the fault of the employers alone, as it seems that they alone are paying the price.

It is through talks and discussions that solutions are found. Not with the imposition of fines and threats of losing other benefits. Acknowledging the importance of the role of employers in the growth of our economic sector is all well and good, but hindering progress through the avoidable imposition of fines, with potentially wrong, unjust and illegal implementation of the law as is, leaves much to be desired and would probably mean a step in the wrong direction.

Ian Spiteri Bailey is an employment lawyer and director of ObjectiveHR.

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