Updated | Government seeks amendments to Industrial Tribunal Act
Law regulating composition of industrial tribunals breaches right to a fair hearing, Constitutional Court decides
12 February 2016, 2:24pm
The issue first arose following legal provisions in 2002.
The government said it had immediately asked the Attorney General to draft the amendments to the law to strengthen the legal guarantees ensuring the independence and impartiality of the tribunal.
“The amendments will erase old practices which hinder fair hearing and correct a situation brought about by previous administrations which were found to have breached the Constitution,” the government said.
On 15 June last year, Madame Justice Anna Felice had ruled in favour of the claim filed by the General Workers Union (GWU), stating that the composition of the Industrial Tribunal, as decreed under the Employment and Industrial Relations Act breaches the right to a fair hearing and does not respect the Constitution and the European Convention for Human Rights.
However, the Attorney General appealed judgment arguing the union should have sought redress in other fora and not the Constitutional Hall, that there was a misinterpretation of law and the context in which the union had filed its claim.
In today's judgment, Chief Justice Silvio Camilleri together with Judges Giannino Caruana Demajo and Noel Cuschieri rejected the Attorney General's appeal and upheld the claim made by the GWU.
The Employment and Industrial Relations Act provides that when a case before the tribunal affects persons employed by entities established by law and run by a board or corporation created by government, or in cases where persons are employed by a company in which the government has an interest and controls, a tribunal member is chosen to represent the interest of government, or the corporation involved in the work dispute, and must be a person chosen ad hoc by the ministry.
The Maltese Constitution dictates that any court or authority prescribed by law for the determination of the existence or the extent of civil rights or obligations shall be independent and impartial; and where proceedings for such a determination are instituted by any person before such a court or other adjudicating authority, the case shall be given a fair hearing within a reasonable time.
Furthermore, the European Convention of Human Rights, reads that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
Another provision grants trade unions the right to choose a tribunal member, however there is no guarantee that this person would represent the interests of the union.
GWU insisted that the Industrial Relations Act does not satisfy the criteria of an independent tribunal.
The Constitutional Court ruled that the current process of the composition of industrial tribunals puts in jeopardy the independence and impartiality of the same tribunal, and breaches the right of a fair hearing.
The court rejected the AG's appeal and upheld the Union's claims.
The Malta Employers’ Association has urged the government to start discussing and take immediate measures to initiate a process, which would probably take months, to establish the legitimacy of the industrial tribunal.
“It appears that the prevailing view is that following these decisions of the Court of Appeal, which many felt were predictable, the Industrial Tribunal is not in a position to continue functioning,” the MEA said.
MEA has for months been stating that the Industrial Tribunal is in need of serious reform. It had also made a presentation to the MCESD with concrete proposals.
“It is regretful that no action has been taken which would have prevented a situation where the Industrial Tribunal now appears to be paralysed, to the detriment of all parties appearing before it, especially when it was known to all since June last year that there were serious legal issues,” MEA said.
“It will now be up to government to take immediate measures to initiate a process, which will, probably take months, to establish the legitimacy of the Industrial Tribunal. In the meantime, both employers and employees will have no recourse to legal redress in cases of industrial disputes and alleged unfair dismissals.”
The Nationalist Party “questioned” what steps did the government take when the first judgement came out nine months ago.
“How did the government prepare itself for today’s decision?” MEP Therese Comodini Cachia and MP Jason Azzopardi, both shadow ministers, asked.
The court has found that legislation passed in 2002 breaches the right to a fair hearing and does not respect the Constitution and the European Convention for Human Rights.
The PN went on to add that the process by which appointments to the tribunal are made do not ensure an impartial and independent hearing.
Chris Mangion is MaltaToday’s photojournalist, joining the newspaper in 2013.
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