The law regulating the composition of industrial tribunals does not guarantee independence and impartiality and, therefore, breaches the basic principle of natural justice, a judge has ruled. 

Madam Justice Anna Felice held that the composition of an industrial tribunal, especially the fact that it must always have a member representing the administration, was in breach of the principle guaranteeing a fair hearing. 

She sent her judgment to the President of Malta and the Speaker of the House of Representatives to take action to rectify the situation. 

The judge was ruling on two similar cases filed by the General Workers' Union before the First Hall of the Civil Court in its constitutional jurisdiction in 2008. In its cases, filed against the Attorney General, the union attacked the provisions in the Industrial Tribunal Act which, in its opinion, failed to guarantee impartiality and independence as laid out in the European Convention of Human Rights.  

The union referred to two cases that were referred to the industrial tribunal. In one, the union was defending an Enemalta Corporation employee who was not being allowed to work in shifts while the second was a case in which the union was defending itself from accusations that it summarily terminated the employment of its own former section secretary, Josephine Attard Sultana. 

The union argued that the article that deals with the composition of the industrial tribunal stipulates that the tribunal chairman is chosen by the minister, even though through consultation with the Malta Council for Economic and Social Development. This made the tribunal biased towards one party in the proceedings, especially in cases involving an issue with a government entity. 

The provision being attacked specifically reads: "A member representing the government, or other body or company involved in the trade dispute who shall be appointed ad hoc by the minister." This, the union said, does not necessarily guarantee impartiality and independence.  

Likewise, there is a provision that gives trade unions the right to choose a member to sit on the tribunal but this did not mean that the person was there representing the union's interests. Even if this was the case, the union said, "two wrongs do not made a right". 

During its cases, the union also argued against another provision in the same law that deal with the tribunal's decisions and how these are reached. 

The article in question imposes a requirement on the industrial tribunal "to take into consideration the social policies of the government based on principles of social justice and the requirements of any national development plan and other economic policies of the Government in the course of implementation, and shall endeavour to ensure that its award, decision or advice is in furtherance of any such policies and plans."

This, the union argued, was something else that created an imbalance in the tribunal's decisions and disallows it from being independent and impartial. 

In another complaint, the union argued that the fact that the tribunal chairmen are appointed by the minister for a period of not more than three years meant that the chairman had no security of tenure and depended solely on the minister's will. Moreover, chairmen could be subjected to "pseudo-disciplinary action" because their position was at the sole discretion of the minister of the day.  

Finally, the union said another provision that enabled the tribunal to seek opinions on cases it was deciding again failed to guarantee impartiality, especially since these opinions are given behind closed doors and cannot be contested and was therefore in breach of the principle of equality of arms. 

In her considerations, Madam Justice Anna Felice rejected the Attorney General's arguments that there were other fora where the union could have raised their complaints. She said the court in its constitutional jurisdiction was the fora where allegations of breaches of fair hearing ought to be heard. 

On the merits of the complaints, Madam Justice Felice noted that the European Court had already decided a case on impartiality and had ruled that "....a tribunal must function independently of the executive and bases its opinion on its own free opinion about facts..."

She said the fact that a tribunal chairman is appointed by the government does not necessarily mean that there is no independence, as long as guarantees to ensure this are in place. 

Madam Justice upheld the union's claims that the articles of the law on the appointment of a tribunal chairman that represents the government and the fact that its decisions are to take into consideration the government policies are enough to affect the tribunal's independence. 

"Not only does the law fail to guarantee that the tribunal is not prejudiced by outside pressures but it is the law itself that imposes such outside pressures," Madam Justice Felice ruled as she held that this failed to guarantee the basic right to a fair hearing. She therefore ruled that the law is anti constitutional and ordered that a copy of the judgment be communicated to the President of Malta and the Speaker of the House of Representatives.