Two recent decisions by the Hon. Madame Justice Anna Felice have cast doubts on whether the composition of the Industrial Tribunal is constitutional, the Malta Employment Association said today.

The decisions are related to cases involving the General Workers’ Union vs the Attorney General, on Industrial Tribunal cases which the union has against Enemalta and Ms. Josephine Attard Sultana (who was previously a section secretary at the GWU).

The decisions address a conflict between Article 39(2) of the Constitution and Articles 73(5) (b) and (c) and 80(3) of the EIRA.

On the one hand, the EIRA states that, when there is a case involving entities that are owned by Government, or else in which Government has a controlling interest, one of the members of the Industrial Tribunal has to represent Government interests and will be appointed ad hoc by the Minister.

On the other, the Maltese Constitution stipulates that any court or judicial authority has to be independent and impartial. Madame Justice Felice also referred to articles in the European Convention to support her decision that the Industrial Tribunal, as currently constituted, does not respect the European Convention.

The decisions also mentioned the issue of the security of tenure of chairpersons, as these can be removed by Government at the Minister’s discretion. This places undue pressure and influence on the chairpersons, the MEA said.

Another point raised refers to Article 80(1) of the EIRA which states that in any sentence, or decision or advice, the Industrial Tribunal has to take into consideration Government’s development plans and economic policies. This also questions the impartiality of the Tribunal. Madame Justice Felice also mentioned that the practice whereby the Tribunal can seek external advice from third parties also jeopardises the impartiality of the Tribunal.

The Court concluded that the current constitution and composition of the Industrial Tribunal as defined in the EIRA does not respect the Maltese constitution and the European Convention on Fundamental Human Rights and Liberties.

These decisions can have very serious repercussions on current cases and also past ones. The Industrial Tribunal has been operating since 1975 and the MGR’s decision, if upheld by the appeal may well challenge the validity of the decisions taken since the Tribunal was founded.

The decisions are being appealed by the Attorney General.

MEA said it is carefully following these developments and has asked for a meeting at the Employment Relations Board to discuss the implications and possible repercussions of this situation. The fundamental difference between the MEA’s and the GWU’s approach is that the union has opted to challenge the constitution and composition of the Industrial Tribunal by taking the matter to court. The Association has adopted a more responsible approach and proposed legislative reforms which will not jeopardise previous decisions. However, if the appeal finds in favour of Madame Justice’s decision, the Association will seek immediate action, including a suspension of all Industrial Tribunal cases.

This is why the Association has underscored the need for reform of the Industrial Tribunal in its submissions for changes in the Employment and Industrial Relations Act. Some of the changes that are being proposed address the concerns raised by the Court in its decision.

MEA’s main proposals include:

•  The removal of the provision in the EIRA whereby the Industrial Tribunal decisions have to respect government policy.

•  Removing the provision that parliament can reverse an Industrial Tribunal decision.

•  Changing the structure of the tribunal to include a chairperson who is a lawyer and who would be assisted by two representatives - one from Unions and another from Employers – in all cases.

•  The Chairperson will have a security of tenure for the period for which s/he has been appointed.

•  Introducing a capping on awards decided by the Industrial Tribunal (currently there are none).

•  Allowing for all decisions taken by an Industrial Tribunal to be subject to an appeal (currently an appeal can be made on a point of law).