Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and the newly enacted Employment and Industrial Relations Act, 2002 (EIRA). In this regard, the Committee wishes to make the following points.

Article 1 of the Convention. The Committee notes that section 36(14) of the EIRA states that "a good and sufficient cause" for dismissal of a worker shall not include membership of a trade union and that section 26 prohibits discriminatory treatment on the basis of membership in a trade union or in an employers’ organization. The Committee further notes that sections 30 and 75 give the Industrial Tribunal exclusive jurisdiction to hear complaints of discriminatory treatment and unfair dismissal. In this regard, the Committee observes that:

1.  Pursuant to section 75(1) of the EIRA, alleged unfair dismissals of certain workers are excluded from the jurisdiction of the Industrial Tribunal and dealt with under separate legislation; in this regard, the Committee asks the Government to provide clarification of the procedure in law and practice in relation to allegations of dismissal for reasons of anti-union discrimination for public officers, port workers and public transport workers.

2.  The Committee further recalls that the Convention requires legislation or practice to provide ways to remedy difficulties resulting from placing on workers the burden of proving that the act in question occurred as a result of anti-union discrimination, for example by placing on the employer the onus of proving that the act of alleged anti-union discrimination was connected with questions other than trade union matters, or establishing a presumption in the worker’s favour (see General Survey on freedom of association and collective bargaining, 1994, paragraphs 217 and 218). The Committee requests the Government to indicate whether in practice the onus is on the worker to prove that a dismissal pursuant to section 36(14) of the EIRA was for reasons of anti-union discrimination.

3.  The Committee further notes that it appears that the protection against dismissal on the grounds of anti-union discrimination, contained in section 36(14) of the EIRA, only relates to the ability to dismiss a worker without notice and, in particular, pursuant to section 36(11) workers on fixed-term contracts may be dismissed before the expiration of their contract, upon a payment set out in the legislation, but without due reason. The Committee requests the Government to clarify whether this is so in practice.

Articles 2 and 3. The Committee notes the information provided by the Government that sections 63 and 64 of the EIRA provide for the immunity of trade unions and employers’ organizations against acts in contemplation or furtherance of trade disputes and that section 65 provides for peaceful picketing. The Committee observes, however, that the EIRA does not expressly protect workers’ and employers’ organizations from acts of interference by one another, nor does it provide a rapid and effective appeal procedure or sanctions in the case of breach, as is required to ensure compatibility with the Convention (see 1994 General Survey, paragraph 232). The Committee asks the Government to clarify its intentions in this regard and, in particular, to indicate whether there are any procedures in place to ensure that Maltese workers’ and employers’ organizations do not interfere in each other’s activities.

Article 4. The Committee notes the information provided by the Government that unions representing more than 50 per cent of employees or workers in any given establishment are normally granted recognition by employers, and eventually are invited to negotiate collective agreements governing the employees of that establishment. The Committee requests the Government to indicate whether collective bargaining with trade unions representing less than 50 per cent of employees is possible, at least on behalf of their own members.

Furthermore, the Committee notes with concern that section 74 of the EIRA entitles the Minister to refer an unresolved trade dispute to the Industrial Tribunal at the request of one party and that the Industrial Tribunal’s decision in this matter will be binding. The Committee also notes that pursuant to section 80 of the EIRA, in its capacity to decide trade disputes, the Industrial Tribunal is obliged to take into consideration the Government’s social and economic policies, including the requirements of the national development plan, and endeavour to ensure that its award, decision or advice is in furtherance of such policies and plans. As it is recalled that, except in the case of public service or essential services in the strict sense of the word, it is generally contrary to the principle of the voluntary negotiation of collective agreements established in the Convention, and thus the autonomy of the bargaining parties, for binding arbitration to be imposed by the authorities at the request of one party (see 1994 General Survey, paragraph 257), the Committee requests the Government to consider amending these provisions to ensure the compatibility of its legislation with the Convention.