In the heat of a July Friday, I donned jacket and tie to attend court for a case in which my only interest was academic, something I hadn’t done for quite some time. I was slightly disappointed because, although I had the pleasure of renewing some old acquaintances, I didn’t get to hear much legal argument as the parties took the judge’s pretty strong hint that they should, at least, have a bash at trying to resolve their differences out of court.

It is to the Air Malta v Alpa et case that I am referring. It probably didn’t take much perspicacity on readers’ part to guess and a comment made during the hearing, just about the only one on which m’learned colleagues were appearing to agree, prompted me to thinking that if I put some thoughts down at this juncture, no-one who matters would say I was trying to influence the court.

The point that was not at issue was that the right to take industrial action per se was not being attacked. The company was seeking protection in particular circumstances, circumstances that have been well ventilated in other sectors of the media and about which I have insufficient knowledge to make a contribution to that aspect of the debate.

The filing of an application for an injunction by Air Malta in an attempt to head off any ‘upgrade’ in the current industrial action by the cockpit crew union gave rise to quite a flurry of ‘shock horror’ style comments about how the right to strike was sacrosanct and absolute and how any attack on this right was an attack on the right of freedom of association, itself a holy cow of gigantic proportions.

This sort of rhetoric sorely tempts me to quote, even if it risks my being labelled misogynist by the humourless, someone who once was the future, but is no longer part of it, and ask everyone to “calm down, dear”.

The right of freedom of association is, pretty much, an accepted right of such breadth that one might well posit the thesis that it is, indeed, absolute. If one chooses to be absolute, one should however be careful to be absolutely precise: the right to associate is not, actually, 100 per cent absolute.

A number of civilised jurisdictions, ours included up to a few months ago, deny the right to members of their armed and security forces, for instance. It is, of course, well known historically that less civilised jurisdictions tend to try to deny this right vigorously, sometimes by favouring one type of association over others, but that is a breach of the right which is not by any stretch of the imagination legal.

It is also a fact that individuals may choose to forego or modify their right to associate freely, by means of their contract of employment. Our Employment and Industrial Relations Act also retains a 1976 provision whereby holders of certain posts may be prevented by their employer from joining any union that represents the rest of the workforce.

The right to assert freedom of association by the taking of industrial action is even less susceptible of being classified as absolute, blaring trumpets and rattled sabres notwithstanding.

The Industrial Tribunal needs beefing up and turned into a proper specialised court

In the throes of the industrial dispute between Dom Mintoff’s Labour government and the MAM (the Medical Association of Malta, though the use of the word Malta was banned in those enlightened days), the 1976 Industrial Relations Act was amended to ensure that a wide range of post-holders within the medical service could not take industrial action. At this distance in history, it is pointless to discuss the motive of this limitation on the right to strike; suffice it to say that the limitation was enacted.

Since then, the right to strike has been restricted further, with the Employment and Industrial Relations Act now containing provisions relating to obligations to provide service in various areas of national importance, including public transport and energy generation. There was no earthquake that I recall when these further limitations were introduced. The right to take industrial action has also been voluntarily circumscribed by unions and employers.

In some collective agreements, for example, it is provided that no industrial action can be resorted to unless a process of mediation and arbitration is undergone and there have been a number of cases where the courts have enforced this limitation even when the union concerned demonstrated a propensity to ignore the obligation previously entered into.

The binding nature of the collective agreement as between the contracting employer and union is not in doubt, a number of cases (GWU v Telemalta and Malta Shipyards v GWU are examples) having confirmed this beyond debate.

It is in the nature of industrial relations that solutions are most often found around the table or as a result of ‘shuttle diplomacy’, so the temporary restraints imposed by the courts in confirmation of the contractual obligations previously entered into have not been rigorously tested. It is however safe to say, I would submit, that the right to strike is certainly not absolute, by a long shot.

Incidentally, I wish the popular media would not make so much of the immediate provisional acceptance by the courts of applications for an injunction. The courts have very little, if any, option but to do so and many are not upheld when the matter is more fully discussed.

Clearly, I would submit, the right to take industrial action – even to the point of withdrawal of labour – is not absolute.

When either of the parties to a collective agreement, for instance, seeks to act in breach of the agreement, it would appear that the Employment and Industrial Relations Act would render the action unprotected, even more so if the action were to be in breach of the law itself.

In Air Malta v GWU (the ‘Queiroz case’), the plaintiffs had cited the fact that an action outside the context of an industrial dispute were not legitimate and the court upheld the request but this again involved a particular set of circumstances. What is not in doubt is that the limitations on the right to take industrial action, as they stand to date, are themselves limited.

The debate that arises, out of the Air Malta v Alpa et case, is whether there should be any extension of these limitations. The arguments in this particular case, from what I could glean by a glance at the publicly-available documents, will centre, if it continues along the course of contestation, on the proportionality between allowing an unfettered right to take industrial action (even if this endangers the continued viability of the company, as Air Malta asserts) or restricting the right to strike.

There was only one case that I recall that approached a discussion on this aspect, a relatively old one (MIA v GWU/UĦM) but the matter was eventually resolved out of court.

It will, to state the obvious, be up to the judge to take a position on the state of the law but, looking beyond this specific case and irrespective of it, it is clear that the test of proportionality should be properly debated, both as to its existence at all and, if it does exist (or is to be introduced), as to the extent and manner in which it should be given effect.

One way of introducing and/or defining a proportionality test would be for the Employment and Industrial Relations Act to be amended to give the Industrial Tribunal the power to order that industrial action is suspended while the matter is debated before it and a proper way forward identified.

This would, of course, involve having an Industrial Tribunal that is able to give urgent and in-depth consideration to the issues before it and one that is constituted properly. I have written about this latter aspect and been met with an ad hominem response but the fact remains that the Industrial Tribunal needs beefing up, once and for all, and turned into a proper specialised court, where issues such as Air Malta v Alpa et can be debated and resolved, speedily, in the interests of all stakeholders.

The alternative is for practitionersand judges to continue to have ‘to make it up on the hoof’, which is not an ideal situation, even if it is an academically-stimulating exercise.

Andrew Borg-Cardona is a lawyer with a particular interest in employment law.