Almost by stealth, at least compared with the manner in which the minister responsible usually publicises the inauguration of a multi-coloured pedestrian crossing or other initiative, the long-awaited amendments to the Employment and Industrial Relations Act (EIRA) have become law.
On June 28, the President assented to Act XXXIII of 2016, a year and 10 days after Madame Justice Anna Felice, later confirmed in appeal, had given judgment that the Industrial Tribunal was not a constitutionally-satisfactory institution.
Have the amendments been worth the wait, especially taking into consideration that, since February12, when the Court of Appeal gave its verdict, the tribunal has been in suspended animation, with all cases halted in their tracks?
Practitioners were virtually unanimous, and have been of this mind for years, that it was high time for the tribunal to be reformed ‘root and branch’, with what was effectively our labour court being turned into just that, a court, rather than the somewhat odd concoction to which birth was given back in 1976.
When adoption of the acquis communautaire necessitated a pretty deep change to employment law, the opportunity was not taken to extend the range of changes to include the Industrial Tribunal, not least because at least one of the main unions had made it pretty clear that no changes to the industrial relations side of the equation would be brooked.
The Industrial Tribunal at the time was constituted under the Industrial Relations Act, 1976 and the provisions were transposed virtually lock, stock and barrel into the EIRA in 2002.
No one grasped the nettle since then, and it was hoped that Madame Justice Felice and the Court of Appeal had given the finest reason for the lapsus to be tackled, especially as the plaintiffs in the cases concerned were the same union that had been so vociferous in objecting to changes to the Industrial Relations Act.
The received wisdom, when the Court of Appeal pronounced itself last February, was that rather than wholesale change for the time being, there would be enacted some amendments to satisfy their Honours’ constitutional concerns, “in order to keep things moving”, with more far-reaching amendments to the EIRA being given due and deeper consideration later, hopefully to include a radical reform to the Industrial Tribunal.
That was February, it is now July and we have been granted the privilege of seeing the ‘interim’ measures, just in time for the summer recess.
The first amendment tells us that the words “to the Board by the Minister” in para (c) of sub-article (3) of Article (3) of the Act, shall be substituted by the words “to the Board by the Minister”.
As one should, I took a look at the Act to see what this all means and from what I could see, it means little, which is hardly surprising considering that the words concerned are being substituted by the very same words, except for the change of a semicolon to a full stop, which is actually the reason for the change, because it grants grammatical coherence to the introduction of a reference to Article 73, the article that governs the Industrial Tribunal.
That was just to show you that I’ve looked at this thing in detail.
In Article 73, the Prime Minister’s right to appoint chairs to the tribunal, after consultation, is left discretionary and the attributes of the members of the tribunal (in the case of an industrial, rather than individual, dispute) slightly modified, or rather clarified. When the government is involved, by means of its various commercial and other agencies, a member shall be nominated by the minister from among persons nominated by entities in the public sector, which is not much of a change, nor an important issue.
It is difficult to put one’s hand on one’s heart and say that one feels confident that the tribunal is now a more truly independent body
The more important amendment to Article 73 comes when sub-article (6) thereof is amended.[[˙
A slightly more rigorous process of appointment and change was adopted, with the Prime Minister, having made his choices after consultation with the Malta Council for Social and Economic Development, but apparently not bound by the results of that exercise, appointing chairs for five years. The practice to date was that the appointment was for three years.
There are listed the usual disqualifications, none of which are contentious. Removal of chairs by the Prime Minister, and simple members by the minister, remains discretionary but subject to consultation with (but not, tellingly, to the approval of) the Employment Relations Board (ERB), with a right of appeal by the about-to-be removed individual to the Court of Appeal.
The extent to which a chair would feel comfortable remaining in office even if only reported for consideration to the ERB is debatable, let alone any appetite to contest the removal in the Court of Appeal.
The reappointment of chairs for a further five years is also discretionary but subject to a proposal being made to the ERB, which may stymie the reappointment of two-thirds of the board are contrary to the idea. Members are also subject to a similar, but not precisely the same, hurdle. There is no need to consult the ERB in the case of non-renewal of appointment of incumbents, from what I could see.
The Prime Minister, in the case of chairs, and the minister in the case of members may, subject to the same process of consultation, appoint new post-holders.
Some more, mainly technical, amendments follow, among which is the statement of the pretty darn obvious that in cases of conflict of interest the chair and/or members seized with the case concerned should declare it. This something that was always taken as a given, though the fact that someone thought it should be imposed statutorily is telling.
The amendments address some other points made by the Constitutional Court, such as the hearing by the tribunal of expert and other witnesses, who now have to be heard in open tribunal, and the manner in which consideration should be given to “social and economic policies”, issues that were not of earth-shattering importance but appropriately clarified now.
And that, from what one can see in the amending law assented to more than a year after the Constitutional Court gave its judgement, is it. These amendments are what the House ‘nem con’ passed.
The Prime Minister may choose, if he is so inclined, to fly in the face of the results of his consultations with the MCESD and he may choose not to reappoint chairs at the end of their five-year term. It is not the length of the appointment.
Whether the Prime Minister would do this is open to debate, of course. However, when you consider that this government, unprecedentedly, accepted the resignation of some chairs after the last election but chose to retain others, and extended the appointment of some chairs, but not others, only recently, it is difficult to put one’s hand on one’s heart and declare that one feels confident that the tribunal is now a more truly independent body than it has been so far.
We’ve waited a year and more, and been in suspension for just over four months, for changes that, at least in my humble opinion, are cosmetic and little more.
No doubt, I shall be characterised as biased and such by the minister’s spokesperson for expressing this opinion. However, I would rather be judged by my fellow practitioners rather than by someone who did not see any need to let us know, as through a press release, that the amendments had been assented to and were now law.
It need hardly be said that my opinions are mine, and mine alone, and I alone am responsible if I have missed some vital point in the amending Act: given that it is only a few pages long, I doubt I have missed anything.
Andrew Borg Cardona is an advocate and has practised in the Industrial Tribunal since advocates were given the right of audience in 2008.
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