Fabian Demicoli

Criteria establishing an employment relationship involving a person who is nominally self-employed

 The employment status of a person who is nominally self-employed is to be presumed to be that of an employee, if a minimum of five of the following criteria are met.

 

(1) he depends on one single person for whom the service is provided for at least 75% of his income over a period of one year;

(2) he depends on the person for whom the service is provided to determine what work is to be done and where and how the assigned work is to be carried out;

(3) he performs the work using equipment, tools or materials provided by the person for whom the service is provided;

(4) he is subject to a working time schedule or minimum work periods established by the person for whom the service is provided;

(5) he cannot sub-contract his work to other individuals to substitute himself when carrying out work;

(6) he is integrated in the structure of the production process, the work organisation or the company's or other organization's hierarchy;

(7) the person's activity is a core element in the organization and pursuit of the objectives of the person for whom the service is provided; and

(8) he carries out similar tasks to existing employees, or, in the case when work is outsourced, he performs tasks similar to those formerly undertaken by employees.

Statement by the employer

In situations where the employment status of a person is deemed to be one of employment, the employer shall be bound to give or send to the employee a letter of engagement or a signed statement, which shall include the information laid down in the Information to Employees Regulations.

Exemption

Notwithstanding the presence of five or more of the above criteria that would automatically establish an employment relationship, any person may before entering into such a relationship, submit a written request to the Director of Industrial and Employment Relations to exempt such a relationship from being considered to be an employment relationship. The Director may exempt in writing that relationship, if it is considered that there are particular grounds relating to that activity to exempt it from this requirement, including that the activity being carried out is an uncommon occurrence or of very short duration. Such exemption shall remain valid unless withdrawn by the Director.

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