The Malta Independent 17 October 2019, Thursday

Updated: Government asks AG to amend 'unconstitutional' Industrial Tribunal law

Friday, 12 February 2016, 14:07 Last update: about 5 years ago

The government said this evening that it had asked the Attorney General to draft amendments to an Industrial Tribunal law after a court found it to be in breach of the constitution. 

A constitutional court today upheld a judgment presented last year by a judge who had ruled that the law which establishes Industrial Tribunal was unconstitutional. It was established that the law establishing the Industrial Tribunal did not guarantee independence and impartiality.

Madam Justice Anna Felice concluded that certain articles in the law breached the principle of fair hearing.

The Attorney General had filed an appeal after the judgement was sent to the President of Malta and to the Speaker of the House. The appeal had failed as the court today, presided by Chief Justice Silvio Camilleri and judges Giannino Caruana Demajo and Noel Cuschieri confirmed the judgment handed by the first court.

Back in 2008, the General Workers Union had filed two separate cases against the AG.

The issue started when an Enemalta Corporation employee was not being allowed to work shifts. It was later faced by another case, this time involving the GWU itself after former section secretary Josephine Attard Sultana had her employment terminated.

Both cases were presented before the Industrial Tribunal.

The GWU had argued that the tribunal chairman was “biased” towards one party in the proceedings, especially in cases involving a State entity as the chair was appointed by the government.

It also argued that despite the fact that trade unions had the right to choose a member to sit on the industrial tribunal, it did not necessarily imply that the representative is protecting that union’s interests.

Madam Justice Anna Felice had rejected the Attorney General’s arguments that there were other fora where the union could have raised its complaints regarding the tribunal’s composition.

The Employment and Industrial Relations Act states that when a case appearing in front of the tribunal affects persons employed by entities established by law and run by a board or corporation created by government, a tribunal member must be chosen to represent the government’s or the corporation’s interest involved in the work dispute. This person must be chosen by the ministry.

The court upheld the claims by the GWU and rejected the appeal presented by the AG. 

The Malta Employers' Association said it is very concerned about the effect of the  decisions of the Court of Appeal confirming the two June 2015 judgements on the unconstitutionality of the manner in which the Industrial Tribunal is constituted and operates. It appears that the prevailing view is that following these decisions of the Court of Appeal, which many felt were predictable, the Industrial Tribunal is not in a position to continue functioning, the MEA said in a statement.

The association said that it had been stating for months that the Industrial Tribunal is in need of serious reform, and had also made a presentation to the MCESD with concrete proposals. It is regretful that no action has been taken which would have prevented a situation where the Industrial Tribunal now appears to be paralysed, to the detriment of all parties appearing before it, especially when it was known to all since June last year that there were serious legal issues.

It will now be up to government to take immediate measures to initiate a process, which will probably take months, to establish the legitimacy of the Industrial Tribunal. In the meantime, both employers and employees will have no recourse to legal redress in cases of industrial disputes and alleged unfair dismissals, the MEA said.

The PN said the Constitutional Court had confirmed that the appointments of chairpersons of the Industrial Tribunal did not enjoy the protection of independence and impartiality.

In a statement signed by Shadow Ministers Therese Comodini Cachia and Jason Azzopardi, the PN said the principle that the justice sector should not be tainted by interference should also apply to the Industrial Tribunal.

The PN asked what steps the government had taken nine months ago, when the original sentence was handed down, to prepare itself for today’s judgement. This was in the interest of all workers who had cases pending at the tribunal and those who could have such cases in future, it said.

The government said it had instructed the Attorney General to draft the necessary amendments to the law introduced by a PN administration in 2002.

It said the court had reached its conclusion based on the following considerations:

 - That the chairpersons and members of the tribunal can be easily dismissed by the Prime Minister or the Minister, according to the case, in such a way that they cannot be regarded to enjoy the level of independence required by the tribunal;

 - That in cases involving the government one of the members of the tribunal had to be a representative of the government, and this went against the right to a fair hearing;

 - That it had become standard practice for the tribunal to seek legal advice without informing the parties, denying them the opportunity to criticise the advice;

 - That that fact that the law only granted the right of appeal on legal points but did not provide for appeal in the case of industrial disputes, added to the fact that the right to a fair hearing was not sufficient, was also in violation of the right to a fair hearing.

The government said that it had immediately instructed the Attorney General to consult with the social partners and prepare amendments to the law to strengthen the guarantees of independence and impartiality and remove practices adopted throughout the years which were considered to impinge on the right to a fair hearing.

It said that as such it would be correcting the mistakes of previous administrations which have been confirmed to be in breach of the constitution.

The Labour Party noted that the ‘unconstitutional’ law had been introduced by a PN government, when Lawrence Gonzi was Deputy Prime Minister. This was ironic, it said when the PN had spent the past few weeks accusing Justice Minister Owen Bonnici with a lie. 




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