A judge has ruled that the law regulating the composition of industrial tribunals did not guarantee independence and impartiality and was therefore anti-constitutional.

Madam Justice Anna Felice said there were various articles in the law in question that were in breach of the principle guaranteeing a fair hearing.

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

In 2008, the General Workers’ Union filed two cases against the Attorney General in the First Hall of the Civil Court in its constitutional jurisdiction.

The union claimed that the Industrial Tribunal Act failed to guarantee impartiality and independence as laid out in the European Convention of Human Rights.

The matter revolved around two issues that had been referred to the industrial tribunal. One was about an Enemalta Corporation employee who was not being allowed to work shifts and the other involved the union itself as it was being accused of terminating the employment of former section secretary, Josephine Attard Sultana.

The law fails to guarantee that the tribunal is not prejudiced by outside pressures and it is the law itself that imposes such outside pressures

The GWU argued that since the tribunal chairman was chosen by the minister, it was “biased” towards one party in the proceedings, especially in cases involving an issue with a government entity.

The provision being attacked reads: “A member representing the government, or other body or company involved in the trade dispute shall be appointed ad hoc by the minister.” This, the union said, did not guarantee impartiality and independence. Another provision gave 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 were the case, the union said, “two wrongs do not made a right”.

It also objected to a provision that 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...”

This, the union held, was caused an imbalance in the tribunal’s decisions and did not allow it to be independent and impartial.

A provision enabling the tribunal to seek opinions on cases was also found unacceptable by the union, especially since such opinions were given behind closed doors.

Madam Justice Felice rejected the Attorney General’s arguments that there were other fora where the union could have raised its complaints. The court, in its constitutional jurisdiction, was the forum where claims of breaches of fair hearing ought to be heard.

The judge noted that the European Court of Human Rights 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 was appointed by the government did not necessarily mean independence was lacking, as long as guarantees to ensure this were in place.

Madam Justice Felice upheld the union’s claims that the articles of the law on the appointment of a tribunal chairman who represented the government and the fact that its decisions were to take into consideration government policies were enough to affect the tribunal’s independence.

“The law fails to guarantee that the tribunal is not prejudiced by outside pressures and it is the law itself that imposes such outside pressures,” Madam Justice Felice ruled saying this failed to guarantee the basic right to a fair hearing.