The ILO warning

I do not know whether it is ingrained in us but we have a tendency of missing the wood for the trees and enjoy causing a storm in a teacup. The issue of the recent International Labour Organisation ruling on the Maltese government legislation vis-à-vis entitlement to additional vacation leave as a result of public holidays falling on a weekend is a case in point.

Way back in 2004, the General Workers' Union decided to resist the government's amendment to the Public Holidays and other National Holidays Act on three fronts. It declared that employers would have to adhere to collective agreements stipulating that employees shall benefit from additional vacation leave in cases where public holidays fall on a Saturday or Sunday.

Most employers have not conceded to the union's demands. Some of them have chosen to compensate for the loss of vacation leave by means of introducing other benefits or ameliorating existing ones. Others had simply ignored the legislation and kept the number of leave entitlement at the same level prior to the enforcement of the new amendment.

With the intention of exerting pressure on the government and the employers, the GWU had also initiated a campaign to organise a national referendum on this issue. At first, there was widespread support and all trade unions, except for the Union Haddiema Maghqudin, took part in a street protest held in Valletta. It was the first time the majority of trade unions had joined forces and participated together in a mass activity. But within a few days all the shouting of "united we stand" had fizzled out and the abrogative referendum never materialised.

The third option available for the GWU was that of launching an official complaint with the ILO, thus taking the issue to an international level.

The GWU argued that the government, through its amendment to the law, had in fact interfered with the concept of voluntary and free collective bargaining rendering null and void the clause, found in collective agreements, granting additional leave to employees for public holidays falling on a weekend. The ILO deliberated that this piece of legislation was not in conformity with the principles and spirit of conventions 87 and 98 that deal with freedom of association and the protection to organise and with collective bargaining respectively.

The ILO recommended the government amend the law in such a way that there would be no interference whatsoever with collective bargaining. It also appealed to the government that in future no similar or other measures are introduced which may put collective bargaining in jeopardy.

But in its report, the ILO has also recognised that it's the government's prerogative to establish the number of public and national holidays. Additionally, in its final opinion, the ILO implied that the government's counter argument that this measure was introduced on the basis of the prevailing economic circumstances would have been considered reasonable and valid if its consequences were not of a permanent nature. It's the element of permanency that renders the government's action as going against the spirit of the ILO conventions, which, after all, were ratified by the same government.

Surprisingly, both the government and the GWU are claiming victory on the basis of this ruling. The union contends that the government should repeal the amendment it introduced and revert to the previous situation. It is also asking the government to take retroactive remedial action so that the six days lost over the previous 18 months as a result of its decision would be recovered.

On the other hand, the government declared that the ILO objection did not target its latest amendment to the legislation per se but, specifically, it had addressed the clause under the same legislation that was enacted 30 years ago (for different reasons and under diverse circumstances) by a Labour government. Notwithstanding this anomalous reasoning the government announced that corrective action would be taken in order to comply with the ILO recommendations.

So where are we going from here? Parliamentary Secretary Tonio Fenech said in public the Cabinet decided to undergo a process of consultation with the social partners prior to the presentation of an amendment in Parliament. However, the forum for consultation will not be the Malta Council for Economic and Social Development but the Employment Relations Board. The latter's function is that of an advisory body to the minister responsible for employment and industrial relations and its distinctive feature from that of the MCESD is that decisions are taken on majority voting if consensus is not reached between the board members.

The Employment Relations Board will have to propose a wording for the new amendment that reflects the ILO ruling in its entirety. It won't consider the GWU persistent demand for redress. However, it may recommend to the minister alternative measures that may have the same impact on the level of the national productivity as that experienced by the reduction of additional vacation leave.

The question of unionised employees and non-unionised workers will be thoroughly examined during the discussions but this will complicate matters even more.

In the absence of a proper economic impact assessment I still hesitate to believe as to whether such measures will effectively generate the desired results. In my view, considering the shift systems that are applicable in most productive sectors and given the practice of availing the largest segment of vacation leave during lean periods, the impact of such measures on our competitiveness is rather negligible. In the circumstances it is very hard for me to envisage a fair and just solution. It is more a question of selecting the best out of two evils!

Whatever the outcome, the GWU is binding itself to take a different route from that of the other social partners. The consequences may not be unpredictable and, eventually, it would realise that what has been perceived as a grand victory for the union and the workers in general was nothing but an ignominy of a piffling struggle.

And the workers won't get the blame for raising their eyebrows!

manuelmicallef@onvol.net