Malta: Heated debate on proposed changes to Employment and Industrial Relations Act

In August 2014, the Malta Employers’ Association (MEA) put forward proposals to amend the Employment and Industrial Relations Act. The MEA's proposed curtailment of sick leave stirred heated public debate and criticism from trade unions. The MEA's response was that unions were sensationalising the issue rather than engaging in serious discussion of all the proposals. 

Background

The Employment and Industrial Relations Act (EIRA, 217 KB PDF) overhauled the two pieces of employment and industrial relations legislation that preceded it. The EIRA was enacted in 2002 to align Malta's labour laws with EU legislation in preparation for Malta’s entry to EU membership in 2004. However, there has been much discussion in recent years about the need for further revision of the 2002 legislation.

Employers propose EIRA amendments

In August 2014, the Malta Employers’ Association (MEA) published a position paper, Proposed amendments to the Employment and Industrial Relations Act (434 KB PDF). Its purpose was to address what the MEA describes as 'flaws and lacunae found in the law'. Some of the proposals sparked public debate and Malta's trade unions were very vocal in their criticism of the suggested changes. The following six proposals have been the focus of criticism.

Trade union recognition

As union recognition has, at times, been the cause of inter-trade union disputes, the MEA suggested that recognition should be based on:

up-to-date records of names of members of the union showing their respective date of membership, their up-to-date payment of membership, identity card numbers and addresses and trades or occupations.

Leave entitlement and public holidays

The EIRA's provisions on leave entitlement have already been amended to state that, where a public holiday falls on Saturday or Sunday, employees will not be due an additional day of leave to compensate for this if a Saturday or Sunday is not a normal working day for them. The MEA proposes to extend this to all an employee's usual days off, suggesting that ‘where a public holiday falls on Saturday, Sunday or other weekly day of rest of an employee, no additional day or vacation shall be given to employees'.

Industrial Tribunal

The MEA proposes renaming the tribunal as the Employment and Industrial Tribunal. It also suggests it should be chaired by a qualified lawyer with at least seven years' experience. It wants to see the creation of a separate Employment Appeals Tribunal and suggests its chair should have security of tenure. The maximum amount the tribunal can award should be fixed at 18 months' salary.

Planned obligatory leave

The MEA wants to make it possible for employers to designate at least eight days of employees' annual leave entitlement as obligatory leave, so that they can allocate these days to shutdown periods, or to bridge the one-day gap between a public holiday that falls on a Thursday or Tuesday with weekends.

Sick leave

The MEA recommended that absenteeism from work due to self-inflicted unfitness for work, including but not limited to drunkenness, hangover, sunburn, sunstroke, sports injuries will not render the employee entitled to sick leave, even if the employee is certified by his own doctor as unfit for work. 

The position paper also says that surgery for cosmetic reasons has become rather widespread and an employer should not have to shoulder any responsibility for an employee's need to recover from such surgery.

COLA

Wages are regulated through the index-linked Cost of Living Allowance (COLA). In 2011, the European Commission, the International Monetary Fund and the Central Bank of Malta recommended that it should be abolished or amended, but the government has not followed this advice. The MEA position paper proposed that productivity and efficiency levels should be factored in the COLA mechanism when the mandatory annual wage increase is calculated.

Reactions

Of all these proposals, the one which really upset the trade union movement and sparked heated public debate was the proposal about sick leave. Newspaper headlines such 'Employers on the warpath against the hangover sickie’ and 'No sick leave for "5 am" Paceville bender, cosmetic surgery' may have raised the feverish heat of the debate.

The proposal was described by the General Workers' Union (GWU) as ‘regressive’ and undermining the spirit of collective agreements. The GWU Secretary-General, Tony Zarb, asked whether an employee suffering from lung cancer diagnosed as being caused by smoking would also be denied sick leave entitlement. Both the GWU and Union of United Workers (UHM) insisted that once a worker has been certified by a doctor to be unfit for work, they are entitled to a period of sick leave as prescribed by the doctor’s certificate.

The President of Forum Unions Maltin (FOR.U.M), Paul Pace, said that this proposal:

goes against the interest and basic rights of employees and it undermines the concept of sick leave by trying to draw a fine line between illnesses that are God-sent and those which are deemed to be self-inflicted.

The Confederation of Malta Trade Unions (CMTU) stated the proposals should have been referred to the Employment Relations Board, being a tripartite statutory body whose remit is to draft labour laws and/or recommend amendments to EIRA, rather than being framed as a public discussion document. It defined the MEA proposals as frivolous and verging 'on the illegal or on what is the borderline'.

The MEA's proposals on leave entitlement also provoked fierce criticism from trade unions. The UHM Secretary-General, Josef Vella, said workers had already been forced to give up public holidays that fall on a weekend and should not be made to forfeit more leave entitlement. The GWU Secretary-General agreed, while adding that the GWU was insisting on reclaiming employees' rights to add public holidays that fall on a weekend to their leave entitlement. 

The GWU's response to the MEA proposals on the COLA was that wages should be increased in line with the cost of living allowance every six months rather than annually. It opposed capping the compensation awarded by the Industrial Tribunal at no more than 18 months' salary.

MEA responds to criticism

The MEA Director-General, Joe Farrugia, said that the unions and the media had focused on the sensational aspects of the proposals, leaving little room for a healthy discussion on the various important recommendations made in the paper. He stated that some collective agreements already include clauses about non-entitlement to sick leave where unfitness for work is caused by sunburn or hangover.

MEA President Arthur Muscat said that the package of proposals tried to address the EIRA shortcomings that have surfaced in recent years. The issue of sick leave, he added, was just a small piece of the jigsaw and should not have evoked such scathing remarks.

Commentary

The high level of concern expressed by the trade unions over proposals to curtail sick leave suggest their sensitivity to substantive issues is higher than to procedural matters such as the operations of the Industrial Tribunal. The unions seemed to be united in their criticism. The same cannot be said about the employers, since other employers’ associations were noticeably absent from the public debate.

The government does not seem to be keen to implement the MEA's proposed measures. While agreeing with the MEA about the need to revise the EIRA, Prime Minister Joseph Muscat described some of the proposed measures as 'draconian'.

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