Malta's Constitutional Court has ruled that the independence and impartiality of industrial tribunals cannot be not guaranteed because the legal provisions for the appointment of tribunal members are unconstitutional. The Malta Employers’ Association has suggested amendments to the law but the unions have not commented.
Malta’s Employment and Industrial Relations Act (EIRA), which regulates employment and industrial relations (485 KB PDF), requires the Minister for Employment and Industrial Relations to set up an industrial tribunal if asked to do so by the parties involved in a trade dispute. The tribunal’s decision is binding on both parties. During the proceedings, the tribunal has the same powers as a civil court, with the right to summon witnesses and to ask those involved to take an oath.
The General Workers’ Union (GWU) brought a case against the Attorney General arguing that the way industrial tribunals were convened was unconstitutional. The Constitutional Court's ruling on the case agrees, saying that the EIRA provisions for the appointment of tribunal members offer no guarantee that tribunals will be independent and impartial. Article 75 (2) of the EIRA gives the minister power to appoint a government representative to sit on the industrial tribunal. Article 73 (3c) specifies that one of the three members comprising a tribunal be 'a member representing the government or other body or company involved in the trade dispute who shall be appointed ad hoc by the minister.' 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. One of the judges observed: ‘Not only does the law fail to guarantee the tribunal is not prejudiced by outside pressures, but it is the law itself that imposes such outside pressures.’
The judgement has been sent to the President of Malta and to the Speaker of the House of Representatives. The Constitutional Court's decision could have serious repercussions for current and previous cases and is being appealed by the Attorney General. If the appeal is rejected, the validity of decisions taken by the tribunal since its inception in 1975 could be challenged.
The Minister for Social Dialogue, Helena Dalli, said that she was studying the judgement and promised to publish any decision on how to proceed. The Director-General of the Malta Employers' Association (MEA), Joe Farrugia, stated that if the appeal fails, his association will seek immediate action, including the suspension of all industrial tribunal cases. The MEA has also suggested several ways of addressing the concerns raised by the judge, including:
The current EIRA legislation obliges the minister to consult the tripartite Malta Council for Economic and Social Development (MCESD) when making appointments to the industrial tribunal. However, the law does not define what form this consultation should take. The Constitutional Court argues in its ruling that the minister’s discretionary power to replace the tribunal chair at any time may affect the tribunal’s independence and impartiality, and the obligation to consult the MCESD does not counterbalance this. The employers’ associations have also been very critical of the latest round of appointments of tribunal chairs. The reaction of the MEA to the court decision has to be viewed within this context.
To date, the Maltese trade union movement has been rather quiet on this issue, and no union leaders have made statements about the ruling. Unions have previously criticised a proposal to cap tribunal awards, but there is not likely to be dissent among the social partners about the MEA’s other proposals. Whatever the outcome of the Attorney General's appeal, the EIRA will have to be amended to dispel any doubts about the independence and autonomy of industrial tribunals.