The government has asked the Attorney General to consult the social partners within the Malta Council for Economic and Social Development, and prepare legal amendments to strengthen the guarantees of independence and impartiality of the Industrial Tribunal. (see statement below)

An Appeal Court today upheld a landmark judgment given by a judge last year who ruled that the law establishing the Industrial Tribunal was unconstitutional as it did not guarantee independence and impartiality.

Madam Justice Anna Felice had concluded that various articles in the law were in breach of the principle guaranteeing a fair hearing.

Although the judgment was sent to the President and the Speaker for action to be taken to rectify the situation, the Attorney General appealed.

However, he failed in his challenge as the Constitutional Court, presided by Chief Justice Silvio Camilleri, and Judges Giannino Caruana Demajo and Noel Cuschieri, today confirmed the judgment of the first court.

The case goes back to 2008 when the General Workers’ Union filed two cases against the Attorney General in the First Hall of the Civil Court in its constitutional jurisdiction.

The matter revolved around 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. Both cases had been referred to the Industrial Tribual.

The GWU had argued that the tribunal chairman was “biased” towards one party in the proceedings, especially in cases involving a State entity, for the simple reason that the chair was appointed by the government.

It argued that even though trade unions had the right to choose a member to sit on the tribunal, this did not necessarily imply that this person would be representing its interests.

It also objected to a provision that imposed a requirement on the 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, 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 had rejected the Attorney General’s arguments that there were other fora where the union could have raised its complaints on the tribunal’s composition. 

Industrial Tribunal now paralysed - MEA

The Malta Employers' Association in a reaction said it was ‘very concerned’ about the judgement.

“It appears that the prevailing view is that following these decisions of the Court of Appeal, which many felt were predictable, the Industrial Tribunal is not in a position to continue functioning,” the association said.

The Association said that it had been stating for months that the Industrial Tribunal is in need of serious reform, and had also made a presentation to the MCESD with concrete proposals.

“It is regretful that no action has been taken which would have prevented a situation where the Industrial Tribunal now appears to be paralysed, to the detriment of all parties appearing before it, especially when it was known to all since June last year that there were serious legal issues.

“It will now be up to government to take immediate measures to initiate a process, which will, probably take months, to establish the legitimacy of the Industrial Tribunal. In the meantime, both employers and employees will have no recourse to legal redress in cases of industrial disputes and alleged unfair dismissals.”

How will workers' right be guaranteed? - PN

The Nationalist Party said in a statement the principle that justice should not be interfered with should also apply to the industrial tribunal.

It asked what steps had the government taken since the first judgement was given nine months ago to prepare itself for today’s.

This was in the interest of all workers who had cases pending at the tribunal and those who could have such cases in future, it said.

Government will rectify situation left by its predecessors

The government has asked the Attorney General to consult the social partners within the Malta Council for Economic and Social Development, and prepare legal amendments to strengthen the guarantees of independence and impartiality of the Industrial Tribunal.

It asked the AG to remove certain practices adopted along the years which were undermining the right to a fair trial.

In a statement, the government said this law had been enacted by a Nationalist government in 2002.

The court, it said, based its conclusions on the fact that:

* chairmen and members of the industrial tribunal could be easily removed by the Prime Minister or the minister hindering the level of independence required by a tribunal;

* in cases where the government or a government entity was a party, the law provided that one of the members of the tribunal had to be a person who represented the interests of the government;

* the tribunal had been regularly seeking legal advice without informing the parties concerned resulting in these not having the opportunity to criticise it; and

* the law only gave one the right of appeal on a legal issue and did not provide for an appeal in the case of a dispute. Moreover, guarantees of a fair trial were not sufficient and gave way to the violation of this right.

The government said that through amendments to the law, it would be rectifying the situation left by previous government which, it was now confirmed was in breach of the constitution.

It  said it would be doing this in a way which would not hinder the tribunal’s work in such a sensitive sector.

Labour government to rectify law which breached Constitution - PL

In another statement, the Labour Party said it was ironic that after weeks of lies to attack the Justice Minister, the court today confirmed that the Nationalist government had introduced a law which was in breach of the Constitution.

A Labour government, it said, would be rectifying what had been done wrong by the Nationalist government in 2002 to protect the Constitution.