A court decision ruling that the current composition of industrial tribunals is unconstitutional because it does not guarantee independence and impartiality could have far-reaching effects on hundreds of cases, according to lawyers.
Madam Justice Anna Felice on Friday ruled that various articles in the law governing industrial tribunals did not guarantee independence and impartiality and were therefore in breach of the right to a fair hearing.
She sent her judgment to the President and to the Speaker for action to be taken to rectify the situation.
When contacted, lawyer Andrew Borg Cardona, who has practised in the field of employment law since 1980, said the decision would send pending cases involving government entities into “legal limbo”.
“If a judicial body is not independent, the very core of its existence is threatened,” he said.
If a judicial body is not independent, the very core of its existence is threatened
“Will the tribunal now suspend operations pending any appeal? What about the hundreds of cases decided, will their result be attacked in retrospect by the party that had lost the case?” he said.
Industrial Tribunal chairmen are currently appointed for a three-year period directly by the minister responsible for industrial tribunals. The list is then rubber-stamped by the Malta Council for Economic and Social Development.
Another lawyer who has been working in industrial relations for several years, Ian Spiteri Bailey, said it was not clear whether the ruling applied only to cases involving government entities or others as well.
Nevertheless, he said such a decision would hasten the process for a revamp in the way the industrial tribunals operated as well as their composition.
Dr Spiteri Bailey said he had heard of a suggestion for retired judges to preside over the tribunal but this had been countered by opinions that their lack of experience in the field of industrial relations could make the cases “too legalistic”.
Dr Spiteri Bailey added that he could foresee many cases being referred to the constitutional court for a decision on independence and impartiality.
The director general of the Malta Employers Association, Joe Farrugia, said he was not surprised at the decision, adding that employers have long been calling for an overhaul in the way industrial tribunals operated.
He said employers will be studying the court’s decision to gauge its implications, while continuing to stress on a need of proper measures to increase transparency.
Social Dialogue Minister Helena Dalli told The Sunday Times of Malta she was “studying the judgment” and promised to make public any decision on how to proceed.
Meanwhile, sources close to the field of industrial relations said it was “ironic” that the court case attacking the composition of industrial tribunals was filed by the General Workers’ Union when six of the 10 chairmen and chairwomen have direct or indirect links to the government and the GWU.