Thematic feature - individual labour/employment disputes and the courts
Published: 21 June 2004
In March 2004, the EIRO national centres in 24 European countries were asked, in response to a questionnaire, to give a brief overview of their country's system for dealing with individual labour/employment disputes through the courts, along with data on: the volume of cases; the costs; the timeframe; alternatives to going to court; and any current debate on these issues. The Maltese responses are set out below (along with the questions asked).
This article examines how individual labour/employment disputes are handled through the courts in Malta, as at March 2004.
In March 2004, the EIRO national centres in 24 European countries were asked, in response to a questionnaire, to give a brief overview of their country's system for dealing with individual labour/employment disputes through the courts, along with data on: the volume of cases; the costs; the timeframe; alternatives to going to court; and any current debate on these issues. The Maltese responses are set out below (along with the questions asked).
System
Please give a brief description of how disputes concerning individual employees' employment and labour rights are handled in your country by courts, tribunals or other official judicial bodies.
The Industrial Tribunal, set by the Industrial Relations Act 1976 (IRA) and confirmed by the Employment and Industrial Relations Act 2002 (EIRA) handles most individual disputes at workplace level. The Industrial Tribunal has the exclusive jurisdiction to consider and decide all cases of alleged unfair dismissal, plus all cases related to:
employment contracts;
conditions of employment such as working hours and overtime;
wages and other kinds of remuneration;
cost of living increases;
occupational health and safety;
maternity leave, parental leave and leave for urgent family reasons;
discrimination and gender equality; rights of employees to minimum information; and
redundancy issues.
In the Industrial Tribunal, the parties involved may be represented by themselves, or they may choose to be represented or aided by a person or persons 'of trust'. Trade unions are entitled to bring forward cases on a worker’s behalf, with the latter’s consent, often through their relevant section secretary. In complex legal issues (for example involving unusual legal interpretations), the unions make use of lawyers to assist workers.
A panel of not more than 15 people, which must include at least three advocates with at least seven years' experience, may be appointed by the Prime Minister to act as chairs of the Industrial Tribunal, after consultation with the tripartite Malta Council for Economic and Social Development (MCESD). The current chairs do not include any professional magistrates or judges. When sitting, the Tribunal consists of a chair and two other members who are selected by the chair to represent the interests in the dispute. These members are selected from two panels of people appointed by the Minister responsible for Employment and Industrial Relations - one panel consisting of people nominated by trade unions represented on the MCESD, and the second consisting of people nominated by employers’ associations and other organisations representing employers on the MCESD.
In its awards, the Tribunal can compel the employer to pay financial compensation to workers who have been unfairly treated. In cases of unfair dismissal, the tribunal has the right to order reinstatement or re-engagement of the worker in the organisation, if the worker is not 'employed in such managerial or executive post as requires a special trust in the person of the holder of such post or in his ability to perform the duties thereof'.
All workers apart from government employees may refer their cases to the Tribunal. The only government employees who can theoretically use the Industrial Tribunal are those providing essential services.
If one of the parties is not satisfied with the Tribunal’s decision, it has the right to file an 'appeal on a point of law' by an application to the Court of Appeal not later than 12 days from the date of the decision of the Tribunal.
The most important of the various other courts, tribunals and judicial bodies that may deal with individual employees’ employment and labour rights are outlined below.
Law courts
Apart from specific cases dictated by higher laws, the Maltese general law courts reserve the right to investigate all cases that allegedly break the law. The main law courts are as follows.
The Constitutional Court has the right to hear cases involving violation of human rights, interpretation of the constitution and the validity of laws.
The Court of Appeal hears appeals from the First Hall of the Civil Court and the Court of Magistrates, and over decisions by a number of special tribunals.
The Court of Criminal Appeal hears appeals from people convicted by the Criminal Court.
The Civil Court consists of the First and Second Halls. The First Hall deals with cases of a civil and commercial nature exceeding the jurisdiction of the Court of Magistrates, and has particular significance as it considers all applications for redress in respect of violations of human rights and fundamental freedoms. The Second Hall is a court of voluntary jurisdiction in matters of a civil nature. For example, the Civil Court is sometimes used in cases of alleged discrimination against people with disabilities.
The Court of Magistrates has both a civil and a criminal jurisdiction. As a civil court its jurisdiction is limited to claims not exceeding MTL 1,000. As a criminal court it is both a court for the trial of offences under its jurisdiction and a court of enquiry in respect of offences falling within the jurisdiction of the criminal court. For example, this court can be used to decide cases regarding health and safety practices at the workplace.
While it is customary to be represented by lawyers in the law courts, people can be represented by themselves or by a trade union official. These courts can impose a range of possible actions from the adjudication of claims to fines and imprisonment.
Public Service Commission
The Public Service Commission ( PSC ), established by Article 109 of the Constitution of Malta , has the authority to hear and decide cases relating to public officers. The commission deals directly with: requests for the interdiction and suspension from duties of public officers; the discipline of public officers found guilty of a criminal offence by the courts; and other disciplinary cases where the officer in question has been notified by the head of department that the charge, if proved, could lead to dismissal. The commission also deals with appeals from public officers against decisions made by the heads of departments and it hears representations by heads of department who are dissatisfied with the findings of a disciplinary board.
Ombudsman
The functions of the Ombudsman include carrying out independent investigations of complaints concerning acts (or ommissions or maladministration) by public organisations, agencies with a government controlling interest and local councils, and recommending where justified, remedial action. The Ombudsman may refuse to investigate when the person involved has not tried to resolve the complaint directly with the department or organisation concerned and when the person has a reasonable alternative remedy under the law. Unlike courts and tribunals, the Ombudsman cannot enforce its decisions. Except on the ground of lack of jurisdiction, no proceeding or recommendation of the Ombudsman may be challenged in any court.
Tribunal for the Investigations of Injustices
The Tribunal for the Investigations of Injustices provides for the processing of complaints dating from between 1987 and 1995 (the date when the Ombudsman Act came into effect). It deals with applications filed by people who claim to have sustained an injustice 'in consequence of undue distinction, exclusion or preference which has been made or given to their prejudice' , as well as any disability or restriction to which they have been subjected by any action taken by the government or any other body corporate established by law. The decisions of the tribunal are final and no appeal may be lodged therefrom. The tribunal is presided over by a judge of the Superior Courts.
Employment Commission
The Employment Commission is established by the Constitution of Malta (Article 120). The function of the Commission is to ensure that, in respect of employment, no distinction, exclusion or preference that is not justifiable in a democratic society is made or given in favour or against any person by reason of his or her political opinions. The commission can award compensation to victims.
Occupational Health and Safety Appeals Board
The Occupational Health and Safety Appeals Board has the power to hear and decide upon appeals against any order of an officer appointed under the Occupational Health and Safety Authority Act 2000 . The board consists of a president (who must have been working as a lawyer for at least seven years) and two other members who should not be lawyers or legal procurators. While all parties may make use of the board, to date only employers have used it. They are represented by lawyers. The decision of the Board is final and can only be contested in court in specific and exceptional circumstances, such as on a point of law.
Malta Arbitration Centre
The Malta Arbitration Centre ( MAC ) is responsible for encouraging and facilitating domestic and international arbitration. An arbitration in Malta is not valid if it is not carried out under the auspices of the MAC. Generally, any matter which is the subject of a dispute is capable of settlement by arbitration. MAC can deliver an 'award' , which might take various forms including monetary compensation. There is no appeal from an MAC award delivered pursuant to the provision of the Arbitration Act. It is final and binding upon the parties. The powers of the Maltese courts to intervene or exercise jurisdiction in matters relating to arbitration are restricted to very exceptional and specific cases. Arbitrators can be specifically chosen by the parties from experts in the field to decide on a particular dispute. To date, very few cases have been referred to the MAC. Indeed it decided only 16 cases between 2000 (when it was set up) and August 2003. One case related to an individual dispute at the place of work. Employees can be represented or assisted by a competent person whom they trust, possibly a trade union official.
Number of cases/disputes and court
How many cases have been dealt with in your legal system by each category of court? Where possible, please provide statistics on the number of disputes in your country each year from 1990 to 2003 (or the latest year for which data are available). Where possible, please provide statistics on costs.
While the proceedings of the various courts and tribunals are normally public, statistical data are not currently gathered on an ongoing basis. The table below is derived from a one-off exercise conducted by the Department of Industrial and Employment Relations (DIER) regarding the Industrial Tribunal.
| No. of cases received in 2003 | |
| Type of dispute | . |
| Alleged unfair dismissal | 404 |
| Alleged discrimination | 7 |
| No of cases closed in 2003 | |
| Type of dispute | . |
| Alleged unfair dismissal | 80 |
| Alleged discrimination | 1 |
Source: DIER.
Litigation timeframe
Where possible, please provide statistics on the timeframe within which court cases over individual labour/employment disputes are settled.
A study of alleged unfair dismissal cases decided by the Industrial Tribunal over the period from 1990 to 2002, found that a total of 685 cases were completed, and that their average duration was 14 months.
Other means of resolving individual disputes
Is there any kind of legal mechanism forcing or encouraging the two parties (management and employees) to resolve a dispute by prior negotiation? Where there is such a mediation process foreseen, please give details. Is there any evidence that mediation has had an effect on the volume of claims handled by courts? Are there any corporate policies built into the structure of organisations in your country specifically to deal with disputes? How are the employees’ representative bodies involved in the process?
It is estimated that a very small percentage of disputes over individual employment/labour issue end up in a tribunal or court. The general secretary of the Union of United Workers (Union Haddiema Maghqudin, UHM), Malta’s second-largest union, believes the figure is probably less than 5%. Many cases are solved in unofficial ways. Workers normally seek the help of their union’s section secretary, who speak on the worker’s behalf to the organisation’s management. If this is to no avail, the Employment and Industrial Relations Act 2002 provides for the voluntary settlement of disputes through mediation and conciliation before the last stage of a settlement determined by the Industrial Tribunal. Cases are thus referred to director of the DIER. During the five-year period 1998-2002, 80% of all emerging work-related disputes were referred to conciliation and, of these, the success rate in reaching agreement was 78.3%.
Debate
Please summarise any current debate on the issue of employment/labour disputes litigated by courts in your country.
With regard to the Industrial Tribunal - the most frequently used channel for cases arising out of individual employment/labour disputes - by and large, the main trade unions believe that it provides a fair system for solving disputes at the workplace (the views given in this section are primarily those of trade unions, as employers’ organisations did not respond to requests for their opinions). However, the General Workers Union (GWU), Malta’s largest union, believes that it is very difficult to assess whether the process is satisfactory. The system has occasionally been used improperly by all parties. GWU argues that the system is sometimes abused by management who know that they are in the wrong and refer the case to the Industrial Tribunal as a delaying tactic (this view does not tend to be shared by UHM). On the other hand, unions might refer cases to the Tribunal when they believe that it is difficult to convince their members otherwise. Sometimes decisions by the Tribunal look fair, says GWU, but in other cases it may be difficult to understand the rationale of the decisions. The worst scenario is when, in spite of a clear decision by the Industrial Tribunal, management still refuses to abide by this decision. While the majority of cases are decided in favour of workers, compensation is usually very meagre and unsatisfactory, according to GWU.
According to UHM, administrative delays are the main problems faced by all courts, including the Industrial Tribunal. In the particular circumstances of the Tribunal, since it operates within the civil courts it is allocated a daily time slot (between 14.00 and 16.00) that is not sufficient to deal with its considerable caseload. However, overall, UHM believes that the judgments by the Tribunal are fair. Trade unions argue that financial compensation to workers is often insufficient, especially when the worker has been dismissed and is not reinstated in the job.
On costs, GWU argues that it is too expensive to refer a case to the Industrial Tribunal, and increasing the fees might impede workers from using the Tribunal. Money should neither act as a deterrent to workers nor as an advantage to employers who can afford to incur more expenses to pursue their case, says GWU. Individuals who are members of unions do not pay any fees for using the Industrial Tribunal, but trade unions must pay their lawyers and experts. It is also becoming difficult for trade unions to cover the costs incurred in Industrial Tribunal cases especially if, as is often the case, they take a long time to be settled. In civil courts, individuals must pay a fee regulated by law.
According to GWU, the Industrial Tribunal should be accessible to all Maltese employees, including those in the public sector. This must also be reflected in the settlement of cases relating to industrial disputes and not only to individual disputes and unlawful termination of employment.
With regard to other forms of individual dispute resolution, the two largest trade union organisations state that in most cases disputes are solved by informal discussions, but in some cases the parties agree to ask for the intervention of a mediator, normally the director of the DIER. At other times a mediator is agreed upon by both parties. Sometimes other public figures mediate, especially in cases concerning disputes with public entities.
Some GWU officials feel that compulsory mediation by professional persons should be introduced in Malta. Every possible means of conciliation should be used before resorting to the Industrial Tribunal, and this can only be done if the system is given legal backing and lead by professionals. UHM believes that there is no need to introduce other individual dispute-resolution schemes that currently do not exist in Malta. On the other hand, more resources should be applied to improving the existing system.
In terms of recent legislation, the EIRA 2002 confirmed the importance of the Industrial Tribunal, while the Equality for Men and Women Act 2003 (MT0312103F) clarified the types of gender discrimination prosecutable in court. A public service white paper issued in October 2003 (as part of an envisaged reform of the public sector) includes proposals to changes the workings of the Public Service Commission. Furthermore, a white paper on outlawing discrimination on the grounds of age, sexual orientation, religion, race or ethnicity, and disability is currently being drafted.
Overall, the existing mechanisms for the resolution of labour disputes, especially in the private sector, are seen to be effective. However, more proactive mechanisms might reduce the number of individual disputes. (Manwel Debono, Malta Workers' Participation Development Centre)
Eurofound recommends citing this publication in the following way.
Eurofound (2004), Thematic feature - individual labour/employment disputes and the courts, article.
