In the light of the confirmation by theshiftnews.com and Times of Malta of rumours that Air Malta is to be shuttered, with a new national airline being brought into play, I believe it is pertinent to raise an issue that should be resolved before the exercise is finalised.

This is the question whether the statutory provisions relating to transfer of business impact the matter. For all I know, the government, Air Malta’s owner, is content that this question does not arise or is capable of being resolved.

However, David Curmi, Air Malta’s chairman, has indicated that the airline’s current employees will be made redundant (and receive their contractual payouts, it is to be assumed). They will then be able to apply for what, in effect, are their former jobs. I believe, therefore, that the question should be addressed publicly, even if only to avoid the embarrassment of the process being contested, prior to or ex post completion, by any interested party.

A couple of preliminary points need to be made. 

Firstly, the mere fact that the government is moving forward with the process does not, in and of itself, make it compliant with the law. The government continues to act apparently in breach of employment law by engaging persons on contracts for service when the circumstances, from the outside looking in, appear to place it in breach of the Employment Status National Standard Order.

Secondly, I am asking the question because I am genuinely concerned that it needs to be resolved and not out of any ulterior motive. I make this point because I am pretty sure that there will be comments made in odium auctoris rather than on the merits, such as they are, of my question.

The law (the Employment & Industrial Relations Act, Cap 452) states that a termination of employment cannot be justified by reason of the business in which the employer is engaged undergoing a change in ownership. The Transfer of Business (Protection of Employment) Regulations amplify the statutory protection afforded to affected employees.

The operative word, it will immediately be pointed out, is “transfer”. The point will be made, and it is a cogent one, that this is not a case of transfer of business but one of the closure of an enterprise and the subsequent establishment of a new one. 

The fact that the government is moving forward with the process does not make it compliant with the law

I submit that this response needs a deeper analysis than that.

‘Air Malta V.2’ will be taking over many (all?) of Air Malta’s assets, tangible and not. Gates, routes, aircraft and goodwill spring to mind, though it appears that the passage from the dying swan to its phoenix will be by a form of osmosis that has not been defined, at least not publicly.

In such circumstances and given the very wide wording of the applicable statutory provisions, I, for one, would not be happy to assume that it is clear and unequivocal that an employee may not challenge the exercise and its results.  After all, to the uninformed, and I include myself in this because I have to rely on news reports, the process of change, seen in its bare-bones’ context and, admittedly, somewhat superficially, involves the planes being given a paint job and the employees having their positions downgraded insofar as concerns remuneration.

Is this then a transfer of business, given that there is no formal transfer from a transferor to a transferee? On the immediate reactive level, it will be said “clearly not” but I would be reluctant to bet the farm on some court or tribunal, here or at the European level, not coming to a different conclusion and deeming the process to be one of transfer of business, with all that is implied by that.

The change by osmosis of Alitalia into ITA did not raise waves, as far as I can see, but stranger things have happened at sea.  It’s our money, and many jobs, that are involved and we deserve to be reassured that all aspects of the matter have been properly addressed.

Andrew Borg Cardona has been a lawyer since 1980 with a particular interest in employment law.