The Malta Employers’ Association wants disputed union recognition to be based on actual membership receipts and not resolved through a ballot.

“Union recognition issues should be legislated. As it is, the Director of Employment and Industrial Relations has the discretion to intervene but we think it should be mandatory in certain cases.

“And we do not believe in ballots. Recognition should be based on real paid-up membership – which we also define in our recent proposals for changes to the Employment and Industrial Relations Act. One comment was that membership is not always paid promptly – but we have no objection to giving a grace period,” association president Arthur Muscat said.

He was explaining a number of the proposals made in the MEA document, which were eclipsed by the unions’ reactions to proposals on sick leave and leave entitlement to public holidays.

He insisted that the director should have “the right, the power and the duty” to demand all the membership receipts from the unions, along with a list of those on a check-off arrangement (where the employer automatically deducts membership dues from the wages).

“It should be immediately clear from these lists which union has the majority. It is no secret that at the moment the unions bluff each other. But it creates confusion and upsets the employees.

“We cannot afford to have companies drawn into a dispute between unions, as happened with Malta International Airport, when it was closed down. This is what we want to prevent in future,” he said.

The MEA’s 39-page document also dedicates a considerable amount of attention to the Industrial Tribunal, which Mr Muscat said, “required radical reform”.

The first focus was on the tribunal’s chairmen – in the majority lay people – who were finding themselves at a disadvantage when the lawyers start to argue on technical points, he said. The MEA is proposing that the chairmen should be lawyers with seven years of experience and that there should always be a panel of three – the chairman, as well as a representative for the employers and for the unions. At present, this three-person panel is only convened when there is a trade dispute. In a case of unfair dismissal, it is currently the chairman alone.

It also wants to remove Parliament’s right to annul a decision of the tribunal, saying this should have a quasi-judicial role.

“A court cannot be independent if its ruling could be deemed invalid,” he said.

Another way to ensure independence would also be to appoint tribunal chairmen for a set period, with removal only possible if there is serious incompetence or corruption, for example.

We cannot afford to have companies drawn into a dispute between unions, as happened with Malta International Airport, when it was closed down

It envisages that the tribunal should then be in a position to take over all cases of unfair dismissal and industrial disputes – rather than having them end up in court.

Another controversial proposal was to set the compensation for unfair dismissal at the equivalent of 18 months’ salary. It is currently open-ended.

Challenged as to whether it was too simplistic to link compensation to salary given the distress caused by unfair dismissal, Mr Muscat said that the other option would have been to set an absolute cap.

“The UK has a ceiling, which is currently 52 weeks’ pay, and other countries have an absolute amount.

“But we think it should be linked to income. You have to ask how much the employees really suffered by losing their job. They might find other employment, sometimes sooner, sometimes later. And you must also bear in mind that the cost of compensation could force a small company to close down,” he said.

Some of the changes that the MEA wants to make are procedural. For example, the law says that any hours worked in excess of 40 hours per week are subject to payment of overtime – but does not exclude categories with yearly salaries, like administration, technical, managerial and executive posts.

“This is serious because it opens the possibility that ­someone will challenge this in court one day and create a terrifying precedent. Imagine the impact this would have on a foreign investor!

“The categories that we are talking about are recognised in a clause in the legislation to do with probation. We think that the same definition should be extended to the overtime exemption,” he said.

Another procedural tweak is the ability to offset wages due to the employee against refunds that the employee owes the employer, for example.

“As it stands, an employer has no right to deduct anything from an employee’s wage – which is sacrosanct. If the employee owes money to the company and the company owes them wages, why can’t they be offset against each other?

“For example, if an employee wants to take leave early in the year – that they have not yet accumulated – the employer can, if they want, either refuse it or give it as unpaid leave.

“Why not allow the employer to grant it as paid leave knowing that if the employee resigns before he has earned that amount of leave, he can offset the balance against his wages? As it is, the only way to do that would be to go to court,” he said.

He stressed that the MEA wants a “clear and unequivocal legal framework” which would not be subject to “multiple interpretations”.