Proposed Amendment to Legislation – Setting up the Industrial Tribunal

The Maltese Government has recently requested the Attorney General to consult the social partners within the Malta Council for Economic and Social Development (MCESD), and prepare legal amendments aimed at strengthening the guarantees of independence and impartiality of the Industrial Tribunal.

On the 12th February 2016, the Constitutional Court upheld a ruling, which had been given last year by Madam Justice Anna Felice in the First Hall Civil Court, in its constitutional jurisdiction. According to the said ruling confirmed by the Constitutional Court, the Law establishing the Industrial Tribunal is unconstitutional since this Law does not guarantee impartiality and independence and also includes several provisions in breach of the right to a fair hearing.

The Attorney General challenged the above-mentioned ruling. However, as mentioned, his appeal was rejected by the Constitutional Court, presided by Chief Justice Dr Silvio Camilleri, and Judges Dr Giannino Caruana Demajo and Dr Noel Cuschieri, who confirmed the ruling by the First Hall Civil Court in its constitutional jurisdiction.

In this respect, it is interesting to note that the case goes back to 2008, when the General Workers Union (GWU) had filed two cases against the Attorney General in the First Hall Civil Court in its constitutional jurisdiction.

The GWU argued that the Industrial Tribunal’s chairman was “biased” towards one party in the legal proceedings, especially with respect to cases involving a State entity, since the chairman was appointed by the Maltese Government. The GWU also argued that, despite that Trade Unions have the right to choose a representative to sit on the Industrial Tribunal, this does not necessarily imply that the said representative will protect the Trade Union’s interests.

The Constitutional Court has based its conclusions on the following facts:

  • Chairmen and members of the Industrial Tribunal could be easily removed by the Prime Minister or the minister, thus, hindering the level of independence required by a tribunal;
  • In cases where the Government or a Government entity was a party, one of the members of the Industrial Tribunal had to be a person who represented the interest of the Government;
  • The Industrial Tribunal had been regularly seeking legal advice without informing the parties concerned resulting in these not having the opportunity to criticise; and
  • The Law only provided the right to appeal on a legal issue and did not provide for an appeal in the case of a dispute.

The Malta Employers’ Association (MEA) was “very concerned” about the Court’s ruling since, according to MEA, the Industrial Tribunal needs a serious reform in order to function properly. In view of this, MEA already submitted a proposal of amendments to the Employment and Industrial Relations Act (EIRA) last year, including several amendments to provisions pertaining to the Industrial Tribunal’s composition.

As noticed by the Union Haddiema Maghqudin (UHM), the Constitutional Court’s decision may have serious ramifications on the rulings made by the Industrial Tribunal over the last years. In fact, while the Maltese Government has instructed the Attorney General to amend the relative Legislation, it is not clear whether the pending cases will be suspended or challenged as being unconstitutional.

In this respect, several lawyers are of the opinion that all pending cases before the Industrial Tribunal should be put on hold, until independence and impartiality safeguards will be in place by enacting the above-mentioned proposed amendments. However, while some Industrial Tribunal’s chairmen have opted to put off sine die cases they were hearing, other Industrial Tribunal’s chairmen chairmen are continuing to hear their respective cases.

For further information about how GVZH Advocates can help you with respect to any Employment Law and/or Industrial Relations matters, including litigation matters, kindly contact us here.

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