Cases before the Industrial Tribunal have been thrown into disarray after a landmark court judgment ruling that its composition breached the fundamental right to a fair hearing as it was not impartial.
Employment law experts who spoke to The Sunday Times of Malta vented their frustration saying that even though this scenario had been brewing for months the government was completely unprepared.
Last Friday the Constitutional Court upheld a ruling made last June by Madam Justice Anna Felice who had recommended that the President and the Speaker of the House of Representatives amend the law in order to bring the tribunal’s composition in line with the Constitution.
The Constitutional Court rejected an appeal by the Attorney General last Friday.
In its reaction the Civil Rights Ministry announced that it had instructed the Attorney General to draft the required law amendments after consulting with the social partners. The ministry pointed out that the existing legislation had been enacted by a Nationalist administration in 2002. No further details were divulged when this newspaper sent additional questions to the ministry.
The case goes back to 2008 when the General Workers’ Union had filed two cases against the Attorney General in the First Hall of the Civil Court in its constitutional jurisdiction.
The union had successfully argued that in cases involving State entities the tribunal’s chairman could be “biased” because he or she was appointed by the government.
Industrial relations lawyers and experts who preferred to remain anonymous told this newspaper that the court’s decision has left the situation in limbo.
“This is especially the case in pending disputes involving State entities like Air Malta or Enemalta, as the chairman’s role has been rendered untenable. In all probability, as from tomorrow lawyers will be asking the tribunal to halt proceedings,” a lawyer said.
This view was also echoed by the Malta Employers Association which said the tribunal had been “paralysed”. Criticism about the “serious ramifications” due to government’s slow-paced reforms was also levelled by the Union Haddiema Maqghudin.
The Constitutional Court judgment could also serve as a springboard for parties wishing to challenge past tribunal decisions on the basis of impartiality. Experts who spoke to this newspaper, however, were split over whether such challenge would be successful.
Meanwhile any sort of revamp in the tribunal would take weeks if not months to be implemented as it would require the law to be amended by Parliament.
“The issue has been brewing for months, but it seems that the government did not prepare a ‘plan B’ in for the worst case scenario,” frustrated lawyers remarked.
They also questioned what would happen until the situation is rectified.
“What remedies can we offer to clients seeking redress over issues like an unfair dismissal and discrimination? The situation is unfair for everybody,” an industrial relations consultant said.
One possible solution for the current impasse would be for the Industrial Tribunal to form part the Courts of Justice with a dedicated judge or magistrate. The model would be on the lines of other specialised courts like those dealing with family law.
Such a setup would be a throwback to the mid-1970s when judges in the Arbitration Tribunal used to preside over such cases.
“Ironically the GWU, whose legal challenge has dealt a fatal blow to the tribunal, was the only social partner which in 1976 had backed the then Labour government to create this tribunal whose days are now counted,” an expert said.