Amendments have been made to Malta’s Employment and Industrial Relations Act to try to stop unions getting involved in recognition disputes. There have been many of these disputes, generally just before the expiry of a collective agreement. The amendments provide a clearer definition of trade union membership and guidelines for the arbitration of such disputes.
There have been numerous recognition disputes in Malta, where two unions with membership at an enterprise each claim to have the most members. This kind of dispute often occurs just before the expiry date of the collective agreement, with each of the unions claiming that it has the right to be recognised by management as the sole representative of the workers to conduct negotiations.
Such a case was the prolonged dispute, in 2014, between the General Workers Union (GWU) and the Malta Union of Bank Employees (MUBE) with both claiming to have the most members at the Bank of Valletta. This led to a collective agreement being signed in December 2015 following a decision by the Industrial Tribunal to grant recognition to GWU.
During this period there was also a dispute between GWU and the Malta Workers’ Union (UHM) about recognition at Transport Malta. UHM was recognised after it called for industrial action.
The inevitable stalemate in such negotiations meant the disputes were referred to court. However, the Employment and Industrial Relations Act (EIRA) did not provide clear guidelines for the Industrial Tribunal to decide on such matters.
The issue is compounded by the fact that employees could in principle be members of both the unions involved and the Tribunal does not have the means to verify their loyalty. The Director of the Department of Industrial and Employment Relations (DIER) has often taken the initiative by carrying out a verification exercise among the workforce to decide the matter. However such an exercise, besides being laborious, lacks transparency and the decision of the Director has sometimes been disputed by the union not granted recognition. The major flaw in this verification process, as pointed out by the unions, is that non-union members may also be summoned by the Director to be interviewed.
In order to address these issues, EIRA was amended by Legal Notice 414 of 2016. The law now gives an employer the option not to recognise a trade union. The amendments state that ‘a union shall have a right to request recognition’ on condition that it provides information requested by the DIER Director about up-to-date records of payment by members.
The possibility of joint negotiation is also covered by the amendments. There have been cases where negotiations have been conducted jointly by two trade unions, such as the agreement negotiated for the academic staff at the University of Malta by the Malta Union of Teachers (MUT) and the University of Malta Academic Staff Association (UMASA).
The law bans two unions from registering separate disputes on collective issues with an employer. They may only register a joint dispute and cannot call for any industrial action on a separate basis.
The amendments also address the problematic definition of ‘trade union member’ by saying that such a member is defined in terms of their membership fees: ‘An employee would still be considered as a member of the union if [they] still had payments in arrears of not more than three months from the date of request’.
A trade union request to be recognised by an employer can only be approved by the DIER Director after the union has presented DIER with the appropriate lists or other information ‘presented in the format requested and within 48 hours’.
Once a union is recognised as the sole bargaining union, no other union may intervene on a collective matter that concerns the employees in relation to the employer. Also, an employer cannot negotiate with any union other than the one that is recognised. When a union has been recognised by the employer, no other union may request recognition until a year after the date when such recognition was awarded.
Challenges to a union’s recognition by another trade union cannot be made in the three months before a collective agreement is due to expire. In the case of two unions requesting recognition, with each claiming to have more than 50% of the employees as members, a secret ballot will be held to determine which of the contesting unions receives the majority of valid votes (only members of the contesting unions, who are employees in the enterprise, are eligible to vote). Any verification process (including the ballot) has to be concluded within 28 working days from the date of the request, unless the parties agree to a longer period. These ballots will be arranged by the DIER Director.
The ban on challenges being made in the three months before the collective agreement expires is bound to please employers, as it is expected to stop the disputes thatused to occur during this period – and the consequent work stoppages. However, the employers are not totally satisfied with the amendments. The Malta Employers Association (MEA) has repeated its view, first stated in 2013, that for the ballot to be valid there must be a minimum 70% turnout.
On the part of the unions, UHM is disappointed that the amendments failed to address the issue of the fragmentation of unions. It argues that it is not clear whether a union representing only a few employees of a particular kind at an enterprise should be given recognition to represent that section, or the right to conduct negotiations and to sign a collective agreement.
This issue might be clarified by a court ruling if or when a relevant case law arises.
The criterion about who qualifies to be defined as a trade union member, as set out in the amendments, provides a clear definition of a trade union membership. This will enable the DIER Director, when resolving inter-union disputes about recognition, to scrutinise membership numbers in a more transparent and objective manner. The provisions in the reformed law tend to be based on the high degree of trust placed in the integrity of the director. Indeed, the amendments are rather vague about the logistical arrangements of the ballot, just stating that these arrangements shall be made by the DIER Director.
Whatever the shortcomings of the new law, the amendments provide clearer guidelines about trade union recognition. Overall, they go a long way to preventimng the frequent infighting among trade unions and the ensuing litigation. Hopefully, it will make trade union relations healthier by encouraging them to collaborate rather than engage in turf wars.