Malta: Airline pilots right to strike disputed

A court injunction preventing Air Malta’s pilots from striking was overturned on appeal in July 2016. The pilots had threatened action over a lack of information on the company’s restructuring plans. A civil court upheld the company’s claim that the action would jeopardise the company, but the Appeal Court ruled that the pilots’ right to strike was absolute.

Background

For the past 12 years, Air Malta has been struggling to regain its economic viability because of its accumulated financial losses. In 2004, the airline’s management signed a memorandum of understanding with the four trade unions representing the different categories of employees at the company. However, the cutbacks that the agreement introduced proved ineffective. In 2011, the European Commission authorised a €52 million loan enable the company to overcome its cash flow problem, on the condition that it implemented a restructuring plan to reach economic viability within five years. Nevertheless, at the end of the third quarter of 2016, the enterprise was still registering losses.

In order to inject the necessary capital in the enterprise, the Minister for Tourism, Edward Zammit Lewis, and the Air Malta management have been negotiating with a strategic partner. As these negotiations appeared to be reaching a conclusion, the four trade unions demanded more information about the repercussions for their members and began to threaten industrial action.

The most vociferous of these four unions was the Airline Pilots Association (ALPA). In protest at the delays over the renewal of their collective agreement, the union directed the pilots to make a symbolic gesture of not wearing their caps or jackets. This was followed by the threat of industrial action, which would cause flight delays and suspension of services.

Air Malta’s Chair, Maria Micallef, stated that ALPA’s threat was jeopardising a deal that could enable the company to become profitable and economically viable. She was quoted in the media describing the pilots’ threat of industrial action during the peak tourist season as ‘callous behaviour that makes it difficult to stay silent ... at a time when the company is in the middle of the most sensitive talks with our potential strategic partner’. Air Malta’s CEO, Philip Micallef, pointed out that the enterprise was still in a ‘loss-making situation’ and was striving to break even. The Tourism Minister accused ALPA of holding Air Malta to ransom, and the Malta Hotels and Restaurant Association (MHRA) expressed its approval of the minister’s appeal to the union ‘to act with prudence and refrain from short-sighted actions or threats that cause damage to the tourism industry’.

ALPA’s right to strike challenged in court

In July 2016, Air Malta filed a warrant of an injunction with the civil court to stop ALPA from taking industrial action, and this was provisionally upheld. The Prime Minister, Joseph Muscat, endorsed Air Malta’s action, saying that the union’s threats of industrial action were disproportionate and could jeopardise the future of the airline. However, ALPA President Domenic Azzopardi criticised the ruling, calling it a clear threat to the right of free association of workers as well as to their entitlement to resort to industrial action. The union took its case to the Court of Appeal, which revoked the civil court’s ban.

Mr Justice Meli, sitting in the Court of Appeal, said the airline had no right to stop a union from taking legitimate action in the best interest of its members, noting that this right was guaranteed by the Constitution. The judge said that the union’s right to order industrial action, as guaranteed by the European Convention, could not in any way depend on the company’s financial situation, especially since the precarious situation had not been brought about by the pilots. He agreed with ALPA’s argument that the fundamental right to take industrial action could never be temporarily suspended pending talks.

The Tourism Ministry stated that the government would respect the court’s decision but that it would do its utmost not to be blackmailed. The two main trade union organisations in Malta, the General Workers' Union (GWU) and the Malta Workers’ Union (UHM) welcomed the ruling, saying that it unequivocally asserts and safeguards the absolute right to strike.

Commentary

By voicing the concerns of its members and defending their rights, ALPA was acting according to the principles of its foundation. It has, however, to be careful not to appear as a destructive element that could derail the company’s bid for survival. Employment lawyer Andrew Borg Cardona said the company was not, as such, denying the union the right to strike but seeking protection in particular circumstances. The judge had to decide between allowing the union an unfettered right to take industrial action even if it endangered the company’s viability or restricting the right to strike when the company was facing a crisis.

The implication of this argument is that industrial action should, either explicitly or tacitly, pass the test of proportionality. In this case, proportionality should be tested in the context of the vulnerability of the enterprise to changing forces and wholesale competitiveness, its precarious financial state and pressure from the European Commission. However, the lack of reconciliation among the social partners during the negotiation process, the union’s lack of information about the impact on its members, and the renewal of the collective agreement should also be taken into account when deciding proportionality. The ideal institution to deal with this proportionality test might be the Industrial Tribunal rather than a magistrate in a civil court or a Court of Appeal judge.

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