What is the government waiting for to inform the country what it plans to do following a judgment that the law regulating the composition of the industrial tribunal is unconstitutional? Does it plan to amend the law or will it first appeal?
In a landmark judgment, Madam Justice Anna Felice has found that the law breaches the basic principle of natural justice as it fails to guarantee the basic right to a fair hearing.
This is a matter that would need to be tackled with some urgency as in the words of industrial relations lawyers the ruling could have far-reaching effects on hundreds of cases.
Knowing that the law has now been found wanting, tribunals can hardly carry on with their work before the issues raised by the court are settled.
The court was ruling in two cases filed by the General Workers’ Union in the First Hall, Civil Court in its constitutional jurisdiction.
The union maintained that the law failed to guarantee impartiality and independence, as laid down in the European Convention of Human Rights because the chairmen of industrial tribunals were effectively chosen by the minister, even though this had to be done in consultation with the Council for Social and Economic Development.
However, in the opinion of industrial relations experts, this was no more than a rubber-stamping exercise.
The first case is that of an Enemalta worker who was not being allowed to do shift work, and the second, over the termination of employment of a former section secretary of the GWU, a case that hit the headlines.
The union contended that the law did not guarantee impartiality and independence. The fact that the trade unions were also given the right to appoint their member did not make the situation right.
Another questionable provision in the law, one that ought to have been seen to a long time ago, requires a tribunal to take into consideration “the social policies of the government based on principles of social justice and the requirements of any national development plan and other economic policies of the government in the course of implementation, and shall endeavour to ensure that its award, decision or advice is in furtherance of any such policies and plans”.
This clearly posed an impediment to a tribunal in its efforts to give a fair and impartial ruling. It is strange how this article has remained part of the law for so long. An equally serious anomaly is that industrial tribunal chairmen have no security of tenure and are only appointed for a period of three years.
Upright chairmen would not be influenced by such lack of job security, but there can well be other people occupying such posts who would not hesitate to favour the minister in the hope of securing their post for more than three years. The European Court of Human Rights, said Madam Justice Felice, had already ruled that a tribunal had “to function independently of the executive and bases its opinion on its own free opinion about facts”.
In one of the key parts of the judgment, she said: “Not only does the law fail to guarantee the tribunal is not prejudiced by outside pressures, but it is the law itself that imposes such outside pressures.”
Since those who have cases before industrial tribunals justifiably expect swift justice, the government would need to move quickly to remedy the unconstitutional aspects of the law and bring the industrial tribunal structure back to full running order.