Our country is endowed, by virtue of the Employment and Industrial Relations Act, with an Industrial Tribunal having exclusive jurisdiction to consider and decide all cases of alleged unfair dismissals and those concerning employment relations.

The composition of the Industrial Tribunal depends on whether the dispute relates to an alleged unfair dismissal or concerns employment relations; in the former case, the Tribunal is made up of one person, an adjudicator, while in the latter, the Tribunal is composed of three adjudicators. As shall be expounded on below, the Act and the Subsidiary Legislation regulating its procedure to be followed by the Tribunal do not go much further in observing the rights of the parties appearing before it, thereby giving occasion to the abuse of such rights.

Any observations concerning the procedure of the Industrial Tribunal must necessarily start from Article 78(3) of the Act, which lays down that “... the Tribunal shall regulate its own procedure ... the Tribunal shall reach its conclusions on any matter in such a manner as it deems appropriate.” This provision sets the tone for the rest of the Act and the Subsidiary Legislation enacted under it, which is inappropriately named the Industrial Tribunal Procedure Rules on account of the fact that it is devoid of any procedural rules of import. Therefore in 2012, Malta does not have a fair and transparent procedure for the hearing of employment disputes and reality shows that the law regulating the Tribunal only pays lip service to its proclamation to “... endeavour to ensure that justice is done according to the substantive merits of the case; and, subject to the rules of natural justice”.

The Tribunal is composed of people who cannot be termed impartial by any stretch of the imagination. Members of the Tribunal who preside over cases are chosen from panels nominated by trade unions and employers’ associations; these members are often called upon to hear and determine disputes between employees and employers who are represented by the same unions and associations of which they are members. How one can attribute impartiality to such a scenario goes beyond reason and logic!

The composition of the Industrial Tribunal violates not only the fundamental rights of the parties in a dispute, but also principles of natural justice. The independence and impartiality of tribunals is sanctioned both under Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and Article 39 of the Maltese Constitution. Clearly, this requirement is not being observed with regard to the Industrial Tribunal, both in terms of its composition and as regards its lack of procedural safeguards.

For the record and before union sympathisers rush to discredit this statement, this matter has already been confirmed by the Maltese Courts within the context of arbitration, a comparable parallel jurisdiction, wherein the Courts declared the composition of arbitration panels by appointment from the Minister from lists of so-called competent people does not satisfy the requisites of the right to a fair trial. While a proposal for an amendment has recently been tabled, even that, in my opinion, falls short of paying full respect to the right to a fair trial.

The composition of the Industrial Tribunal has been inundated with people with union backgrounds who have little to no experience and/or training in the promulgation of justice and the protection of fundamental rights. The influence of union officials and former colleagues on the decisions of the Tribunal has brought with it a politically-charged atmosphere evidenced most clearly by the kind of questions made to witnesses and parties by members of the Tribunal.

This lack of experience also means that the majority of the Tribunal’s members do not even know how to properly dictate the records of hearings and do not follow a legalistic procedure when dealing with the disputes before it!

To compound matters even further, the Tribunal is empowered by virtue of Article 81(1) of the Act to make certain considerations on the basis of equity. This term in essence gives the Tribunal a free hand to decide on matters brought before it without the threat of having its decisions contested and goes even further in reducing the observance of fundamental rights and principles of natural justice.

Furthermore, the Tribunal has no guidelines on which to establish the quantum of compensation to be awarded where a complaint is found to be justifiable. This not only contributes to the lack of legal certainty and the legitimate expectations that parties to a dispute are legally entitled to, but also increases the possibility of abuse as it makes such matters far too dependent on discretion.

To add insult to injury, the right of appeal under Article 82(3) of the Act can only be availed of on points of law decided by the Tribunal, thus the manner of computation of compensation awarded cannot be challenged.

Both at law and in practice, therefore, the Industrial Tribunal does not follow a procedure set down in law, is not required to explain in detail how it arrives at its decisions, can decide on the basis of equity, has no set manner of computing compensation, gives decisions which can only be appealed in a limited way and, consequently, is not accountable for its conduct and decisions!

The European Court of Human Rights has time and again underlined that for a Tribunal to be independent, regard must be given to the manner of appointment of its members and the duration of their term of office, the existence of guarantees against outside pressures and the question of whether the body presents an appearance of independence. It has laid down that “the existence of impartiality for the purposes of Article 6(1) must be determined according ... on the basis of the personal conviction of a particular judge in a given case, and also according to ... whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect”. It stated that the latter test “refers to the question of whether the way in which the tribunal is composed and organised, or a certain coincidence or succession of functions of one or more of its members, may give rise to doubt as to the impartiality of the tribunal or that member”.

It is time to face the reality that the proceedings of the Industrial Tribunal need to be suspended immediately to allow for the creation of a proper procedure guaranteeing the right to a fair trial and the principles of natural justice. It is also necessary to reconsider the manner of appointment, requisites and tenure of its members, to redefine the manner in which disputes are determined and to make it accountable for its decisions.

It is time to give legal effect to the long-awaited changes required. Complacency, inertia and inaction only lead to the perpetration of injustice.

Dr Peter Fenech is a

lawyer by profession