No consultation on labour law change

In 2011, Malta added an amendment to its Employment and Industrial Relations Act 2002 (EIRA), empowering the minister responsible for transport to declare specific jobs in land and sea-based transport in Malta as ‘essential services’, effectively removing the right to strike from transport workers. This change to labour law was made without consulting the social partners and is in contrast to the consensual approach that characterised the evolution of the EIRA a decade ago.

Background

On 28 October 2011, legal notice 994/11 was published in the Government Gazette. This declared as ‘essential’ 541 specified jobs relating to the provision of public passenger transport services, and another 71 specified jobs in the provision of scheduled public ferry services between Malta and Gozo. This effectively removes the right to strike from the workers who do these jobs, obliging them to ‘deliver service even in the event of industrial action’ or otherwise face dismissal. The specified roles include 350 ‘drivers’.

This legal notice, signed by the Minister for Infrastructure, Transport and Telecommunications, Austin Gatt, was made possible by an amendment to the Employment and Industrial Relations A ct (444Kb PDF) (EIRA), article 64 (6) (g), that was passed last April.

The amendment was made without being discussed with the Employment Relations Board or presented to the Malta Council for Economic and Social Development (MCSED) for views and reactions from social partners, despite the serious issues raised by removing the right to withdraw labour from so many employees.

Essential service

The advice of the International Labour Organization (ILO), and common practice in many European countries, is that denying workers the right to strike may only be justified for the delivery of an ‘essential service’, usually defined as an activity necessary for the safety or security of the public. The ILO argues in its Principles Concerning the Right to Strike (195Kb PDF) that while a minimal public transport service might be important in a limited number of circumstances, such as the provision of a basic ferry service for isolated islands or postal services, this should be ‘limited to the operations which are strictly necessary to meet the basic needs of the population’.

The need to maintain a minimal medical service, law and order, air traffic control, fire fighting capability and water provision were included in Malta’s EIRA when it was introduced in 2002.

EIRA protection bypassed

Article 64 (9) of the EIRA was intended to protect workers from this kind of initiative. Any amendments to the schedule of the act listing essential services could be made only by an order of the prime minister published in the Government Gazette, or by a resolution passed by parliament.

However, Article 64 (6) (g) was added to the EIRA last year by Act 5 of 2011, a piece of ‘housekeeping’ legislation that amended a wide range of Maltese laws. The new clause defines minimal or essential transport provision as the equivalent of one-half of normal public passenger transport services in Malta and Gozo.

Malta’s public transport is operated by private companies. Given that Arriva, Malta’s main public transport provider, says it employs about 660 drivers, it is not clear how the figures in legal notice 994/11, declaring 350 drivers’ jobs essential – more than half the current establishment – have been arrived at.

The schedule to the EIRA outlines what the practice has been so far. The schedule contains the ‘list and number of offices required to be manned at all times for the continued provision of the government of essential services to the community’.

Commentary

When EIRA came into force in 2002, the only offices mentioned on the ‘essential’ list were from the Department of Health. This list was largely a response to the damaging 10-year strike by the medical profession in state hospitals from 1977 to 1987, the longest strike in Malta’s history.

Even where issues of public health are clearly paramount, Article 64 (9) of the EIRA limited the number of offices that could be declared essential to a maximum of 370 offices. These are divided into three categories; a maximum of 45 offices in clinical and administrative services, a maximum of 100 doctors and a maximum of 225 offices engaged in nursing services. These restrictions still preserve the right to strike for the majority of the medical and paramedical professions.

In contrast, legal notice 994/11 signed by Minister Austin Gatt declares three and a half times as many bus drivers as doctors to be ‘essential’ personnel.

Some of the social partners have protested strongly about this measure. Top officials of the General Workers’ Union (GWU) raised the issue at the Employment Relations Board on a number of occasions, as well as with the Minister concerned. They were informed that this particular piece of disputed legislation would be revisited and possibly revised but so far nothing has happened.

Godfrey Baldacchino, Centre for Labour Studies