Two recent decisions by Madam Justice Anna Felice have cast doubts on whether the composition of the Industrial Tribunal is constitutional, the Malta Employers’ Association said today.

The decisions are related to cases involving the General Workers’ Union vs the Attorney General, on Industrial Tribunal cases which the union has against Enemalta and   Josephine Attard Sultana (who was previously a section secretary at the GWU).

The decisions address a conflict between the Constitution the Employment Relations Act (EIRA).

On the one hand, the EIRA states that, when there is a case involving entities that are owned by Government, or else in which Government has a controlling interest, one of the members of the Industrial Tribunal has to represent Government interests and will be appointed ad hoc by the Minister.

On the other, the Maltese Constitution stipulates that any court or judicial authority has to be independent and impartial. Madame Justice Felice also referred to articles in the European Convention to support her decision that the Industrial Tribunal, as currently constituted, does not respect the European Convention.

The decisions also mentioned the issue of the security of tenure of chairpersons, as these can be removed by Government at the Minister’s discretion. This places undue pressure and influence on the chairpersons.

Another point raised refers to Article 80(1) of the EIRA which states that in any sentence, or decision or advice, the Industrial Tribunal has to take into consideration of government’s development plans and economic policies.

This also questions the impartiality of the Tribunal.

Madame Justice Felice also mentioned that the practice whereby the Tribunal can seek external advice from third parties also jeopardises the impartiality of the Tribunal.

The court concluded that the current constitution and composition of the Industrial Tribunal as defined in the EIRA does not respect the Maltese constitution and the European Convention on Fundamental Human Rights.

The MEA said these decisions could  have very serious repercussions on current cases and also past ones. It has  asked for a meeting at the Employment Relations.  

The association said it is proposing the removal of the provision in the EIRA whereby the Industrial Tribunal decisions have to respect government policy.

It is also calling for the removal of the provision that parliament can reverse an Industrial Tribunal decision and a change in the structure of the tribunal to include a chairperson who is a lawyer and who would be assisted by two representatives - one from unions and another from umployers – in all cases.

The Chairperson, it said, should have a security of tenure for the period for which s/he has been appointed.

There should be a capping on awards decided by the Industrial Tribunal (currently there are none).

Decision by the Tribunal should be subject to appeal.

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