Breakaway union wins dispute over HSBC representation

Industrial Tribunal turns down HSBC Malta’s opposition to employee being represented by Independent Bankers Union in employment dispute

A dissenting member of the Industrial Tribunal has objected to a decision that turned down HSBC Malta’s opposition to have one of its employees represented by a member of the Independent Bankers Union (IBU) in an employment dispute.

The case arose from a complaint by the IBU, a breakaway union, in November 2019, against HSBC.

The case revolved around the bank’s objection that IBU president Mark Muscat – a former HSBC employee who has since been dismissed – represent another HSBC employee who was a member of the union in a work-related dispute.

The case had been referred to the Industrial Tribunal in November 2017 by the Equality Ministry.

The IBU wanted the Tribunal to declare that the bank could not refuse to accept that Muscat, or any other IBU official, act in representation of the union’s members in any issued regarding HSBC employees.

HSBC argued that the Tribunal should not even consider the case because the circumstances for an industrial dispute did not exist. In its decision, the Tribunal dismissed HSBC’s preliminary exception that the case wasn’t within its competence, noting that the Equality Minister had referred the case after having determined that it satisfied the necessary requisites as stipulated at law.

But as for the merits of the case itself, the Tribunal noted that HSBC was basing itself on a collective agreement with the major bankers’ union, the Malta Union of Bank Employees (MUBE), which stipulates that all employees have the right to be assisted by a union official who is employed by the bank, or by a colleague who is a bank employee. The collective agreement states that in this regard the union which is responsible is the MUBE.

Yet the Tribunal pointed out that, at the time of the case in question – when the bank objected to him representing a bank worker – Muscat was still working with the bank. Muscat was indeed dismissed by the bank in June 2018, after the case in question took place.

So the Tribunal said there was no doubt that the bank had acted contrary to its collective agreement with the MUBE, when it had disallowed Muscat from representing a fellow bank worker.

The Tribunal then focused on a second point: whether the bank could impose the stipulations of the MUBE collective agreement on workers who are not MUBE members.

It underlined that every trade union in Malta has the sacrosanct right to choose which of its representatives will assist its members, as long as the official in question is appointed according to the union’s statute and that the union itself it set up and registered in compliance with the relevant laws.

In light of this, the Tribunal said the IBU, which was set up in validly legal manner, had the right to choose which of its officials could represent its members.

And while HSBC followed the collective agreement which it had with another union, the MUBE, every employee had the right to be represented by a person they trusted, in this case, a representative of the IBU, which official the union has the right to choose itself, not the bank.

The Tribunal upheld IBU’s requests and ordered HSBC to not prevent any of the union’s officials from assisting its members within the bank.

Still, one of the Tribunal members – Malta Employers Association director general Joseph Farrugia – filed a dissenting opinion, arguing that the decision that a union can choose any of its officials to represent its members goes contrary to the needs of a bank which operates on a global scale “to be very careful that cases which involve representation are kept confidential, since they can have serious repercussions on the bank’s reputation.”

He said the collective agreement between HSBC and the MUBE specifies that anyone representing a bank employee must also be a bank employee to protect the bank, and consequently its workers, from somebody involving themselves in the case who have an ulterior motive over and above the merits of that particular grievance.

The purpose of this “restriction” in the collective agreement, Farrugia added in his dissenting opinion, is to safeguard the interests of the bank and its employees, not to restrict individual liberty.

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