Does the Industrial Tribunal Law breach fair hearing?

The First Hall of the Civil Court has recently held that the law regulating the composition of Industrial Tribunal does not guarantee independence and impartially since it breaches the basic principle of natural justice.

This was held while the Court was ruling on two different cases filed by the General Workers’ Union-GWU in 2008. In one of these cases, the GWU was defending an Enemalta Corporation employee who was not being allowed to work in shifts with the Malta Council for Economic and Social Development. While in the second case, GWU was defending itself from accusations that the employment of its own former secretary, Josephine Attard Sultana, had been summarily terminated.

The GWU argued against the legal provision according to which the Chairman at the Industrial Tribunal must be appointed by the Minister. In particular, the GWU stated that such a provision would have biased the Industrial Tribunal towards one party in the above-mentioned proceedings in breach of values of impartiality and independence.

Moreover, GWU argued against the legal provision according to which the Industrial Tribunal, in making its decision, has to take into account both social-economic policies and any national development plan adopted by the Government. According to the GWU, this would create an imbalance in the Industrial Tribunal’s decisions and disallow it from being independent and impartial.

The GWU also argued the fact that, according to the Law, the Industrial Tribunal’s Chairman has to be appointed by the Minister for a period of not more than three years and can again be appointed for a further three years. Therefore, the Chairman would be subjected to the Minister’s will to appoint him again.

Finally, GWU argued that the legal provision which allows the Industrial Tribunal to seek opinions on cases to be decided would fail to guarantee impartiality and equality, especially since these opinions are given behind closed doors and cannot be contested.

Based on the above, the First Hall of the Civil Court found in favour of the GWU’s argument and declared that the composition of the Industrial Tribunal breaches the right to Fair Hearing as it is provided by both the Maltese Constitution and the European Convention for Human Rights. In particular, as the Court stated in its judgement, The Industrial Tribunal’s independence would be affected by the legal provision on the appointment of Industrial Tribunal’s Chairman representing the Government and by the fact that its decisions have to be made taking into consideration Government’s policies.

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