The Constitutional Court, in the form of the Civil Court (i.e., not in the appeal jurisdiction, where the case might end up if the Labour government appeals the two decisions given in favour of the General Workers’ Union – not a given) has pronounced itself on a number of aspects of the law that appear to place the Industrial Tribunal in a position where it cannot be seen as an independent judicial organ.

The provisions of law attacked by the GWU in these cases, which were started in 2008, were enacted when the Industrial Relations Act was put on the books in 1976 by a Labour government.

In essence, the GWU attacked the law on two bases. The plaintiff union submitted that in cases of industrial disputes, from where there is no appeal on points of law, the manner in which the Tribunal is composed when a government-controlled entity is concerned runs contrary to the law, in that the government side has some power to pick and choose in connection with the said composition.

The GWU also submitted that the lack of security of tenure of chairpersons in all cases (i.e. including where individuals submit cases for redress and where the chairperson sits alone) renders the Tribunal non-independent.

For the sake of context, it should be pointed out that in the second case, also decided in its favour by the Constitutional Court, the union was acting qua employer, having been sued itself as the ex-employer of a fired person. The irony that one of Malta’s largest unions had filed a case that might prejudice the progress of many other cases pending before the Tribunal, including cases filed by the union itself, has not been lost on many observers.

Insofar as concerns the first case, the plaintiff union had a valid point: the law allowing the government to interfere in the composition of the Tribunal when it is itself concerned with the result of the case is bad law and it should have been amended long ago.

This aspect of the matter only concerns industrial disputes, the determination of which is quite definitely not the main function of the Industrial Tribunal. If the cases discussed had been restricted to this, the court’s findings would have been inconvenient but not prejudicial to the vast majority of cases.

It is time for the people who toil at the coal-face to be consulted

The position now, saving any change on appeal, is that we have before us a finding in law that the Industrial Tribunal, which has before it many cases in progress or awaiting decision on issues of alleged unfair dismissal, discrimination or harassment, has been determined to be a judicial institution that is not independent.

This is basically because the chairpersons of the Tribunal do not have security of tenure, a position at law that was brought into stark perspective, though not mentioned by the Constitutional Court because the cases decided did not concern this aspect, by the way the chairpersons were changed wholesale after the elections.

The reasoning of the court is that since the government can pretty much change the chairpersons at will, with the only restraint on the government being the obligation to consult the Malta Council for Economic and Social Development (and we all know what consultation means, especially when a Labour government is involved) the Tribunal is not an independent body.

Where does this leave the cases now pending? Insofar as cases of industrial disputes with government entities are concerned, these are now in limbo, but these are not the only cases affected. Where “individual” cases are concerned, those where many ex- and current employees are seeking redress, the situation is perhaps less clear but no less fraught with complications.

In the case of Josephine Attard Sultana v Tony Zarb et (the case in connection with which the constitutional reference was made by the GWU) it is to be assumed that this will likewise go into legal limbo, but what about the many other cases? Will the Tribunal now suspend operations pending any appeal? For that matter, what about the hundreds of cases decided, will their result be attacked in retrospect by the party that had lost the case?

I have no answer to these questions except to pose more questions, because if a judicial body, as the Tribunal has now been confirmed to be by the Constitutional Court (not that anyone needed this confirmed) is not independent, the very core of its existence is threatened. Are the scores, if not hundreds, of employees whose cases are pending now to file for redress in the forum of last resort, the Civil Court, with the attendant cost, in monetary and time terms?

Can they even file for redress in the Civil Court, given the state of the law? Will the Tribunal plough on regardless, in the hope that “it will be alright on the night”?

The Industrial Tribunal is approaching the summer recess and there is a small window of opportunity for the decision makers to assume their responsibility and do something that will ensure that the rights of the numerous applicants to the Tribunal for redress are protected effectively and in a timely fashion

Given the condition of the law establishing and regulating the Tribunal, with which many practitioners are not very comfortable, the time is ripe for wholesale change. It is to be hoped that this will be achieved competently by the government, which given past experience is not guaranteed.

What is certain is that, in stark contrast to the way things have been done since 1976, it is time for the people who toil at the coal-face to be consulted and their advice to be taken, not for these things to be decided behind closed doors by politicians and others suffering from the delusion that they know it all.

Andrew Borg-Cardona has practised in the field of employment law since 1980.