It is incorrect on the part of the National Commission People with Disability to state that the Malta Employers’ Association never encouraged its members to adhere to the compulsory two per cent disability employment requirement. It is, however, correct to declare that, over the years, the government entities that had the authority and the responsibility to ensure enforcement of the law could not be bothered.

One would have expected the government, with its unlimited availability of human resources, to make an effort and enforce a 1969 law that was adequate. Instead, what did we get? In complete secrecy, an existing 1969 law was amended and sprung by surprise upon employers during the November 2014 Budget speech.

This was done in total disregard for established social dialogue procedures, whereby new proposed laws or amendments to laws are first communicated to the social partners for their qualified views and recommendations. Unions and employers are to be consulted through the Malta Council for Economic and Social Development and the Employment Relations Board. This should be done as a standard practice, with no obligation on the part of the government to take on board opinions or recommendations made.

None of this occurred in respect of the amendments to the law on the employment of people with disability and the result is a set of arbitrary and erroneously conceived amendments, incompetently drafted, that have created antagonism and ill will even among the most positive of employers.

Why has all this aggravation been provoked and by whom? A law that had the sole primary objective of ensuring a certain level of employment of the disabled has now acquired a second, either/or objective of generating revenue through hefty fines euphemistically called ‘contributions’.

These contributions, to be paid by arbitrarily declared non-compliers, will be directed to the newly set-up Lino Spiteri Foundation. The foundation will fund certain initiatives, like engaging private training companies to favour individuals with a disability in their efforts to move into employment. The emphasis seems to be shifting towards revenue collection rather than employment of such people.

A blanket dispatch by the ETC of hundreds of erroneous contribution invoices, with a deadline for payment, has provoked substantial resentment among employers, this resentment being most pronounced among employers who deem themselves to be within the law and others more than willing to adhere to the law but finding serious difficulties in doing so.

The ETC chose a cowboy approach of‘pay now and talk later’

It is a real pity and deplorable that such high-handedness and roughshod treatment should have been employed in respect of such a sensitive issue.

Much as the ETC was, and is, notoriously not organised to properly administer the amended law, it chose a cowboy approach of ‘pay now and talk later’.

After all, mistakes and overpayments can always be rectified with credit notes.

The National Commission People with Disability must understand that the MEA’s application for a court injunction had to do with the temporary stalling of irreparable sanctions on employers and not the stalling of employment of people with a disability.

Confusion and problems still prevail on this issue. It could be that the public sector itself is in breach of the two per cent quota. Unlike in the case of the private sector there is no evidence that ETC has issued invoices for payment of fines and contributions to public sector entities.

Much as employers, including in the public sector, should make an effort to employ people with a disability, it is a fact that there are not enough such individuals registered with the ETC seek-ing employment to meet the demand. Most employers can and will employ such individuals, this with mutual economic and social advantage. However, there will be instances when defining and adapting such work can prove difficult.

In such situations, it is important that an employer is not faced with ridiculous ETC interpretations of the Data Protection Act to restrict information on people with a disability to an employer who surely can responsibly exercise confidentiality in respect of such sensitive information. Particular data is of critical importance if an employer is to ensure a safe work environment for an individual with a disability.

So many unanswered questions remain on the correct and just application of this law. There is as yet no defined procedure on how identification and recruitment of an ETC-registered unemployed individual with a disability can occur. Out of three existing registers of people with a disability, only one – that of the ETC – is officially recognised by this law.

Employers are entitled to legislation that is clear, fair and reasonably implementable. They must not be subject to the discretion and magnanimous interpretations of public servants.

Ultimately, this is an issue of governing and administering professionally, something seemingly so out of reach of a public sector managed by a government that declares itself to be so competently business friendly. On this unresolved issue, together with the Chamber of Commerce, Enterprise and Industry, the MEA held inconclusive talks with the ETC.

Should further meetings occur to reach just solutions or should employers challenge aspects of this law even at Constitutional Court and EU legal levels?

Arthur Muscat is president of the Malta Employers’ Association.