Malta's Industrial Tribunal has regularly been the subject of more than one controversy since it was set up in the mid-1970s to deal exclusively with cases involving breaches of workers' rights, such as claims of unfair dismissal.

When the Industrial Relations Act of 1976 was still in force, it afforded all public service employees the automatic right to resort to arbitration in the event of an industrial dispute between the government (as their employer) and their representatives. All public sector employees could refer such a matter to a specialised industrial court of law.

When the new Employment and Industrial Relations Act entered into force in December 2002, the employment of a large segment of government employees degenerated in the sense that they reverted to those existing before 1976 because this extremely important right to resort to arbitration was removed.

Perhaps the biggest controversy was the appointment of a new Industrial Tribunal immediately following Labour's electoral victory in 2013, when the new Labour government asked all the chairs of the tribunal to resign. Six new chairs were appointed, while five of the panel were retained. One of the panel members refused to resign.

The chairs of the tribunal are chosen from a panel of people and are appointed for three years. However, they are officially appointed by the Prime Minister, which gives incoming governments the right to make changes. This panel, consisting of not more than 15 people, is appointed after consultation with the Malta Council for Economic and Social Development (MCESD), the national tripartite body for social dialogue.

The chairpersons of the Industrial Tribunal, while having the same powers vested in the civil court, do not have the same security of tenure enjoyed by magistrates. The question that arose was whether the law should be redefined to dispel any doubts about the independence and autonomy of the industrial tribunal system.

In 2015, Malta's Constitutional Court, following a case brought by the GWU against the Attorney General, ruled that the independence and impartiality of industrial tribunals cannot be guaranteed because the legal provisions for the appointment of tribunal members are unconstitutional. The Constitutional Court ruled that this power to make ad hoc appointments, combined with no security of tenure for any of the tribunal members, calls into question the impartiality and independence of industrial tribunals.

The court ruling also rejected the EIRA provision that requires the tribunal to take into consideration the social policies of the government, based on the principle of social justice and the requirements of any national development plan. The court viewed this as an external pressure that could prejudice the tribunals' ability to make impartial decisions. The court went on to state that not only does the law fail to guarantee that the tribunal is not prejudiced by outside pressures, but it is the law itself that imposes such outside pressures.

In 2018, the Court of Appeal, in delivering a judgment in the proceedings Antoinette Farrugia vs Optical (CCSG) Company Limited and Classic Group, commented 'obiter' that the Industrial Tribunal should be presided over by a person who has the necessary legal background and experience. This was also said, given the exponential growth of the Maltese labour market.

Over the years, independent trade unions, entities and other bodies involved in the employment and industrial relations sector have consistently highlighted how 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.

Moreover, 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.

To compound matters even further, the Tribunal is empowered to make certain considerations based on 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.

That possibility of abuse grows because the right of appeal under the law can only be availed of on points of law decided by the Tribunal, and, therefore, the manner of computation of compensation awarded cannot be challenged.

So it's a relief to see a process now underway to reform the Industrial Tribunal, aiming to ensure that Tribunal decisions are delivered more swiftly, that there are clear legal parameters regarding compensation awarded to workers who have suffered injustice, and that the decisions of the Tribunal chairpersons are more consistent with one another.

But that will not be enough.

The sore points remain the lack of judicial independence and impartiality, together with the lack of a right of appeal on points of law and fact.

These two pivotal issues have long been waiting to be addressed.

Dr. Mark Said