The ILO and the government

On June 14, The Times reported on the issue that evolved following the decision by the ILO's Freedom of Association Committee.

This decision defeated the Nationalist government's amendment to section 6 of the National Holidays and Other Public Holidays Act, with regard to the effect such an amendment has had on collective agreements since its promulgation. According to the same ILO committee, this amendment has gone against the spirit and letter of ILO conventions 87 and 98.

In its report, The Times quotes an unnamed spokesman for the Office of the Prime Minister who was quoted as saying that "the ILO is effectively contesting a law drawn up by a former Labour administration, whereby legislation takes precedence over collective agreements".

This is an outright deceptive statement. This same statement, now, is accentuated by the official statement published last week by the government. Undoubtedly, it intends to shift the serious condemnation by ILO onto the Labour Party.

For correctness sake, I must point out that, actually, there is legislation, or more accurately article 42 of the Employment and Industrial Relations Act - Chapter 452 of the Laws of Malta - that specifies that the law is superior to the provisions of collective agreements, but only in situations where such provisions are inferior to conditions stipulated by law.

For the benefit of the misled readers the following are the provisions of article 42:

"Unless in such case as is otherwise provided by this Act, if a contract of service between an employee and his employer or a collective agreement entered into between the employer and the recognised union representatives, provides for any conditions of employment, including conditions relating to the termination of the contract, less favourable to the employee than those specified in or under this Act, they shall have effect as if for those conditions less favourable to the employee there were substituted the conditions specified in or under this Act."

This article dates back to the former Conditions of Employment Regulation Act of 1953 (Chapter 135) and, contrary to what has been indicated, this article was clearly intended to prohibit any employer, the government included, from offering employment conditions inferior to law under the pretext of an agreement or contract. The MLP is proud to have been the author of such legislation aimed at safeguarding the working class in our country.

This proves that actually, there are situations where the law prevails over collective agreements. However, the legislative provision, cited above, contemplates that any provisions in a collective agreement which are inferior to the provisions of the law are considered, outrightly, as null and void.

Certainly, this is a situation that is totally different from what the OPM spokesman and now the government itself are trying to promote.

The only other specific legislation in the industrial relations sphere where provisions are made whereby the law supersedes any clause in any collective agreement is none other than article 6 (b) of the National Holidays and Other Public Holidays Act (Chapter 252) which stipulates that: "with effect from January 1, 2005 when a national holiday or a public holiday listed in the Schedule falls on a Saturday or on a Sunday, it shall not be deemed to be a public holiday for the purposes of entitling any person to an additional day of vacation leave; and any such other law, contract or instrument as aforesaid shall have effect accordingly".

It was the Nationalist government that promoted it, and thus promulgated this legislation in January 2005, whereby employees - even though entitled by the provisions of a collective agreement to an extra day of vacation leave as compensation for a public holiday falling on a weekend - were denied from acquiring it.

It is unbelievable how in this country we manage to politically target everyone, even a supranational organisation such as the ILO. I have no doubt that no one in this country or elsewhere would distrust the ILO. The ILO is surely one of those international organisations that has proved itself, through decades of sterling work in safeguarding the rights of workers and their conditions at work.

The ILO committee asked the government to amend section 6 of the National Holidays and Other Public Holidays Act so as to ensure that this provision does not render automatically "null and void" any provisions in any existing collective agreement granting workers the right to recover public holidays falling on a weekend; and, consequently would not preclude voluntary negotiations in the future on the issue.

It would make much more political and social sense if the government comes up with a practical and socially just solution to this legislative mess which has been created at the expense of the workers and which has exposed us to an ILO sanction.

Pursuant to the ILO decision, all Maltese employees entitled to such a benefit under a collective agreement are now regaining the entitlement of an additional six days of leave this current year. However, the government, while seemingly heeding the ILO decision, is passing the buck to the workers' representatives with no tangible support from its side, so that it will get out of this self-inflicted mess scot free. If the government does not implement the ILO decision, the international community will consider us as a country that continuously expresses commitment towards democratic values but in practice being no more than any undemocratic state where ILO decisions and recommendations go unscrupulously unheeded.

No respectable EU state would ever dream of dismissing an ILO decision as if it was not worth the paper it is written on or attempt to shed its responsibility.

I truly hope that the Prime Minister would not follow the attitude and philosophy of Investments Minister Austin Gatt who argues that having a five-seat majority in Parliament gives the Nationalist Party some divine right to ride roughshod over the opinion of everybody else.

I vividly remember, Prime Minister Lawrence Gonzi, then Minister for Social Policy, in the run up to EU membership, ceaselessly stating that accession would assure us of attaining the best social model. Hence, the whole country awaits the Prime Minister to prove himself, in following the spirit of social Europe, by abiding by what the ILO has very clearly stated and make sure the decision is implemented.

Dr Gonzi should ensure the issue does not get entangled in the usual political web which nobody benefits from but he should see to it that an early serious solution is found.

I thus appeal to the government to acknowledge immediately the decision taken by the ILO and amend the necessary legislation and to provide rightful compensation to one and all. The government must remember that a large number of Maltese employees are not unionised, hence, its decision should not result in the creation of a new divide among the Maltese work force.

Ms Coleiro is a Labour member of Parliament.