A critical commentary

It may have been a very long, drawn out consultation process: as long as 12 years. But the latest - and final? - round of amendments to the draft labour legislation has taken less than 11 weeks to finalise.

Minister for Social Policy Lawrence Gonzi had allowed interested parties to tender reactions to the `White Paper` - published on December 27, 2001 - by not later than January 31, 2002. Come April 22, and we have the definitive Bill.

It`s a single Bill. The eventual Employment and Industrial Relations Act will bring together what has so far been two separate pieces of legislation: that concerning conditions of employment (CERA) and that relating to industrial (meaning organised labour versus organised employer) relations (IRA).

An innovative move, which boosts the profile of the eventual Act, streamlines such standard features as definitions and avoids the dangerous resort to cross-references which would otherwise have been necessary.

The Bill is certainly smashing news to workers and trade unions. It consolidates a large variety of social policy features, most of which are inspired by the European Union acquis, protection from discrimination and victimisation, including cases of `whistleblowing`; safeguards from insolvency, collective redundancies, acquisition, amalgamation or merger of the employer or firm; rights to minimum information and consultation.

So much was to be expected: Government`s resolve to take on board all those provisions pending from the social policy and employment chapter of the EU was a foregone conclusion. Other features, however, raise some interesting concerns:

1. Right to sympathy strikes will be maintained, and its removal from the printed bill has been declared to be an `oversight`. Prime Minister Eddie Fenech Adami stated last January that sympathy strikes would not be outlawed, but should not be abused either. Yet no attempt is being made to somehow circumscribe the operations of sympathy strikes in the Bill.

2. Essential services. A specific cadre of employees will lose their right to strike. These include workers engaged in air traffic control and fire-fighting, pilotage, mooring and tug services, civil protection, port workers, pollution combatants, and water and electricity distributors.

The schedule of health sector offices which are required to be manned at all times has been reduced from 656 in the `White Paper` to around 190; but this figure is still much more than the 57 in the current IRA. The likelihood of industrial action which brings the nation to a standstill is thus reduced.

The number of staff in an enterprise which can be debarred from trade union membership has also been scaled down from the `White Paper` proposals. The Bill refers to not more than three persons in the case of firms employing up to 200 employees; and not more than seven persons beyond that. Small professional unions organised on a single company basis will have to learn to live with this provision.

3. The notion of a Joint Negotiation Council (JNC) to provide special negotiation machinery over the conditions of employment of all public officers is finally being laid to rest. The JNC will now become the vehicle to handle trade disputes concerning the workers who cannot resort legally to industrial action.

This move grants alternative representation and negotiation rights to a class of employees who would have otherwise been cheated of such rights; but it also hints at Government`s willingness to move in a direction which will eventually align the conditions of employment of public officers to those pertaining to the rest of the labour force.

The current state of play continues to treat public officers as some special category to which labour law does not apply and where the internal circulars of the Management and Personnel Office (the EstaCode) and the Public Service Commission rule supreme.

Indeed, freshly inserted sub-Article 48(1) grants the Prime Minister the power to prescribe by regulation the applicability of `Title I` of the Act (that is, the CERA legacy) to public officers. A wise and strategic move.

4. The Employment Relations Board (ERB) is all set to become Malta`s third structured instrument for multi-partite social dialogue, after MCESD and MEUSAC. The Minister now only appoints two of the ten members of the ERB (rather than four as suggested in the `White Paper`).

Contrary to the `White Paper` proposals, in which the Minister had a free rein to unilaterally prescribe sweeping changes to conditions of employment, the Bill now locates this discretion within an obligation to consult the ERB. Such an obligation is now to be found in seven out of the eight instances in the Bill where the Minister has the faculty to prescribe regulations.

The exception is, oddly, in relation to procedures prescribing the nature of consultations between employer and employee representatives in the case of a transfer of business ownership [Article 38(5)]. Another oversight?

5. A key player in the local world of work is the Director of Employment and Industrial Relations. It is partly to the credit of the current incumbent that the Bill now includes a clause clarifying that the Director is an explicit point of reference in cases where there is a trade dispute, or even where one may potentially exist.

Direct action, preventive as well as curative, by the Director has led to a sharp reduction of industrial action in the local private sector over recent years. (If only we could say the same for the public sector!)

6. A number of changes are being proposed insofar as the workings of the Industrial Tribunal is concerned. The number of chairpersons of the Industrial Tribunal goes up from ten (in the `White Paper`) to 15 (in the Bill), of which three shall be advocates.

These three advocates shall not be obliged to hear all cases concerning unfair dismissal (as had been mooted in the `White Paper`). This is certainly another welcome change: it is already difficult enough for a small number of chairpersons to handle Tribunal cases efficiently.

A concluding remark about employers: they are probably disappointed that the Bill has hardly bothered to reflect their aspirations and suggestions. In spite of a concerted effort by five employer organisations to table common amendments to the `White Paper`, has even a single employer suggestion been since incorporated into the Bill? Government may have taken a number of measures which protect its status as an employer, but has not bothered to extend the compliment. Net result: Maltese workers and trade unions have extra reasons to celebrate come May Day this Wednesday!

Associate Professor Godfrey Baldacchino specialises in labour policy at the University of Malta. E-mail: godfrey.baldacchino@um.edu.mt.