The Court today declared that the law regulating the composition of industrial tribunals breaches the right to a fair hearing.

Madame Justice Anna Felice ruled on two cases in this regard, both brought forward by the General Workers Union.

The Court heard how the fact that a tribunal member representing the administration must always be on the tribunal breaches this particular right.

The first case was about an Enemalta worker who was not allowed to work shifts.

The Chairman of the Tribunal is chosen by a panel created by the ministry, the union said, adding that there was a conflict in law. The Employment and Industrial Relations Act provides that when a case before the tribunal affects persons employed by entities established by law and run by a board or corporation created by government, or in cases where persons are employed by a company in which the government has an interest and controls, a tribunal member is chosen to represent the interest of government, or the corporation involved in the work dispute, and must be a person chosen ad hoc by the ministry.

The Maltese Constitution however states - “Any court or other adjudicating authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time”.

In addition, the GWU also quoted from the European Convention of Human Rights, arguing that in the determination in the determination of a person’s civil rights, “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law”.

Thus the General Workers Union explained that this provision within the Industrial Relations Act does not satisfy the criteria of an independent tribunal guaranteed by the Constitution and the European convention.

The union added that while government has a direct interest in Enemalta, it is government that can appoint a member of the tribunal to represent government’s interests.

A provision exists that grants trade unions the right to choose a tribunal member, however argued that this does not mean this person would represent the interests of the union. If this was the case, it said, “two wrong don’t make a right”.

The Union also argued that the current law stipulates that In giving any decision, “the Tribunal shall take into consideration the social policies of the Government based on principles of social justice and the requirements of any national development plan and other economic policies of the Government in the course of implementation, and shall endeavour to ensure that its award, decision or advice is in furtherance of any such policies and plans”.

The Union is convinced that this “imposition” makes it impossible for the Tribunal to decide in an objective manner, since its decisions are tied to the economic policies of government.

On the issue of the Tribunal Chairman, the Union explained that the Chairman is appointed for a three-year period  and can again be appointed for a further three years. The Union believes that the Chairman is, therefore, subjected to the Minister’s will to again appoint him.

The Union also argued that a provision in the law allowed tribunals to seek opinions, however failed to guarantee impartiality. The Union said these cases are behind closed doors and can’t be contested, thus breaching the idea of equality of arms.

In response, the Attorney General argued that the General Workers Union had other avenues open for remedies however did not use them, however the judge declared that this does not apply as the union was arguing that its right to Fair Hearing was breached in this particular forum.

The court found in favour of the General Worker’s Union argument and declared that the composition of the Industrial Tribunal, as decreed under the Employment and Industrial Relations Act breaches the right to Fair Hearing and does not follow the constitution and the European Convention for Human Rights.

A copy of the judgement was sent to the President of Malta and the Speaker of the House.

A second case was filed which dealt with a tribunal hearing where the union was defending itself from accusations that it summarily terminated the employment of its own former section secretary, Josephine Attard Sultana. The GWU file a near identical Constitutional case against the Attorney General, with the Court, also presided over by Madam Justice Anna Felice, found a breach of Fair Hearing.

Madam Justice Felice noted that the European Court had ruled on a similar case, that ruled – “

… a tribunal must function independently of the executive and bases its opinion on its own free opinion about facts..."

She highlighted that the fact the Chairman is a government appointee does not mean they are not independent, given that guarantees are in place.  She ruled that not only does the law fail to guarantee the tribunal’s independence, but also provides for outside pressures.