This case concerned a claim for payment of the sum of Lm546.14 allegedly due by the defendant to the plaintiff in consideration for overtime hours, leave entitlement, bonuses and social security as a result of her employment as a hairdresser with the defendant.

The defendant claimed that the plaintiff was not entitled to the disputed sum of money on the grounds that she had worked with the defendant as an apprentice. Furthermore, it was claimed that the plaintiff should have resorted to the procedural remedies available in the Employment and Industrial Relations Act.

The Court noted that the Employment and Industrial Relations Act (Chapter 452 – Laws of Malta) makes reference to the Employment and Training Services Act; (Chapter 343 – Laws of Malta) which defines an apprentice as “...a person over the age of fifteen years who is bound by a written agreement to serve an employer for a determined period with a view to acquiring knowledge, including theory and practice, of a calling in which the employer is reciprocally bound to instruct that person and “apprenticeship” shall be construed accordingly...”

From the evidence provided, it resulted that the plaintiff fell within such definition. The Court further stated that when Chapter 452 defined “contract of service” and “contract of employment”, the law also included an apprenticeship. Reference was also made to guidelines issued by the Employment and Trading Corporation (ETC), a government agency that looks after such apprentice schemes.

The plaintiff claimed that:

• In April 2005, she started working overtime although the defendants did not have the permission to allow so as per the ETC Guidelines.

• She was never given forms to record the hours she was working

• After a month of working, she was not provided with a payslip nor was she paid overtime. She therefore took note of the hours she worked in April, May, June and July 2005. She allegedly was never paid overtime.

A representative for the defendant company testified and informed the Court that regarding the ETC overtime form, it was the apprentice’s duty to fill it in and pass it on to the employer.

The Court notes that in an email from the ETC to the defendant representative, it was held that “overtime should be paid at the rate one pays a person in the same grade (at least minimum wage). This is reasoned out that if an apprenticeship is kept on over-time s/he is giving labour and not for labour/training, therefore the pay should be – at least – based on the minimum wage”.

The Court considered all the available evidence. It stressed the fact that the law included the apprentice within the definition of the contract of employment. Furthermore, according to Article 45(2) of the Employment and Industrial Relations Act, the law equally provides to apprentices the remedy available to employees to appear before the Courts of Malta to make actions for wages, bonuses, leave entitlements, notice period etc. Therefore, on this basis, just as a regular employee has a right to be paid for his work, so does an apprentice.

The defendant representative claimed that a verbal agreement had been reached with the plaintiff to the effect that rather than being paid overtime, she would be given time off. However, the tribunal held that this claim was not proved to its satisfaction and moreover, that the ETC should have ensured that agreements in conflict with its guidelines should not be permitted and that should legitimate agreements be made between employers and apprentices, that they be done in writing to avoid anomalous situations such as this at such an early stage in one’s working life.

The tribunal decided the issue on the basis of equity and hence held inter alia that the plaintiff had indeed worked overtime for which she had a right to be paid and that the defendants were obliged to ask for the ETC’s permission before allowing the plaintiff to work overtime. Had the defendants received such authorisation, then perhaps they would have had evidence to prove their alleged agreement to have time off in lieu rather than payment for overtime. On these grounds, the tribunal upheld the plaintiff’s claims and rejected the defendants’ pleas condemning the latter to pay the plaintiff the sum of e1,272.07 (Lm546.10)

The defendants appealed inter alia on the grounds that they felt that the defendant had not worked overtime and that the tribunal merely dealt with overtime, ignoring the plaintiff’s claims in relation to bonuses, vacation leave etc.

The Court of Appeal made reference to the ETC Guidelines for Hairdressing Apprentices and Beauty Therapy Apprentices which hold that such apprentice schemes are regulated by the Employment and Training Services Act and furthermore, that an apprenticeship agreement had to be in writing. In fact, Article 31(1) of the latter Act holds that “An employer on engaging an apprentice or trainee shall enter into a written agreement with him.”

In the case under examination, no such written agreement was entered into and no document was signed.

Although admittedly there are occasions when agreements are reached between employers and apprentices and ETC refrains from interfering, in this case, the Court claimed that it could abstain from ensuring that the law was being observed.

Article 32(1) of the Employment and Training Services Act unequivocally states that “No agreement of apprenticeship in a calling or traineeship shall be binding unless and until it has been registered with the Corporation in accordance with the provisions of this Act.”

In this case it was clear that since there was no written agreement and no approval from the ETC, it could not be said that there was a work relationship between the employer and the employee as an apprentice as contemplated by law. The written agreement required by law gives the apprenticeship a juridical status protecting the parties to such agreement and defining their rights and obligations, and is not merely a formality that may be ignored.

Without this agreement, the court held that the relationship between the parties was more correctly defined as one of employment.

The Court of Appeal therefore agreed that the plaintiff had a right to be paid her dues and upheld the judgement of the Small Claims Tribunal, rejecting the appeal of the defendants.