The Constitutional Court, in two cases filed by the General Workers’ Union, recently decided that provisions in the Employment and Industrial Relations Act, 2002, relating to the Industrial Tribunal, breach the right to a fair hearing. To address these judgments, the government proposed some changes to the law.
The tribunal was established by the Industrial Relations Act, 1976 replacing the Malta Arbitration Tribunal, which previously served the country for 27 years.
The Industrial Tribunal was taken on board by a Nationalist administration in the current 2002 enactment.
Both political parties agree on the existence of such a tribunal as a means of resolving industrial disputes. The same applies to employers and employees who resort to the dispute settlement mechanism offered by the Industrial Tribunal.
Forty years have elapsed since its original creation but no change has been made to this tribunal, notwithstanding other developments in administrative law, procedure and justice. Now that the occasion has arisen for a thorough review of the tribunal, the government is failing to make good use of it.
There are other quasi-judicial tribunals that are more advanced at ensuring the right to a fair hearing, such as the Small Claims Tribunal, the Environment and Planning Review Tribunal and the Administrative Review Tribunal.
Now that the occasion has arisen for a thorough review of the Industrial Tribunal, the government is failing to make good use of it
The Bill introducing the changes has been correctly criticised by the Confederation of Malta Trade Unions as “half-baked” and “weak”.
Josef Vella, CEO of the Union Ħaddiema Magħqudin proposed that the Industrial Tribunal should be chaired by a magistrate. I endorse this recommendation as it is the best way forward in this field.
The Administrative Justice Act, in 2007, had already proposed that the Industrial Tribunal should be absorbed by the Administrative Review Tribunal chaired by a magistrate. This would have only involved the publication of a legal notice by the minister responsible for justice and would have ensured a speedy, yet practical, solution to the current impasse.
It is a pity that the Bill in question has simply resorted to an exercise of patchwork aimed at retaining the status quo as far as possible without ruffling any feathers while, however, addressing as minimally as possible the two GWU constitutional decisions referred to above.
Tweaking the law guarantees no solution as more problems might arise in the future.
Over the last 40 years, laws were enacted providing for more procedural justice to the parties appearing before newly-established tribunals. There is no comparison in the security of tenure enjoyed by the adjudicators of the Small Claims Tribunal and the Industrial Tribunal members. Is this not a case of two weights and two measures? Does not, therefore, the Bill in question constitute a regressive step?
Other aspects could have been considered had a comprehensive review been attempted, such as that of solving the backlog of pending cases before the Industrial Tribunal.
This government – following the 2013 Bonello Commission report – changed the payment method to adjudicators of the Small Claims Tribunal bringing about more efficiency to this tribunal. Why has not this measure also been adopted for the Industrial Tribunal?
Is it a case of the right hand of government not knowing what the left hand of government is doing?
The Bill leaves much to be desired. But the government can still make amends to ensure that the Industrial Tribunal is revamped to bring it in line with the right of a fair trial and to guarantee procedural justice.
Kevin Aquilina is dean of the Faculty of Laws at the University of Malta.
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