Informe definitivo - Informe núm. 202, Junio 1980

1. 263. The complaint of the International Federation of Free Teachers' Unions (IFFTU) was transmitted to the Office in a letter dated 21 December 1979, and additional information was transmitted in a letter dated 11 April 1980. By a letter dated 22 January 1980, the World Confederation of Organisations of the Teaching Profession (WCOTP) expressed its wish to be associated with this complaint. The Government communicated its observations in letters dated 27 February, 17 March and 14 April 1980.
2. 264. Malta has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 265. In its letter of 21 December 1979, the IFFTU states that the Government of Malta has embarked on a policy of aggression against the trade union movement, particularly against teachers and public service employees. It attaches to its letter a report on the situation made by its Maltese affiliate, the Movement of United Teachers (MUT), alleging, inter alia, that the Government has not implemented sections 25 and 26 of the Maltese Industrial Relations Act, 1976, which provide for the establishment of a Joint Negotiating Council and the Constitution of the Industrial Tribunal. The report also complains of the amendment (by Act XXVIII of 1977) to the Industrial Relations Act whereby certain public officers are no longer protected by section 18(4) against dismissal or discrimination for acts done in contemplation or furtherance of a trade dispute.
2. 266. The MUT gives examples of the Government's alleged repression and victimisation of its members: although negotiations were under way with the MUT, recognised as representative of the workers concerned, regarding the reorganisation of kindergarten assistants, in September 1977 the Government signed an agreement with the General Workers' Union (GWU) the terms of which were, according to the MUT, humiliating; the MDT protested this action and the Government denied its accusations stating that the rival union represented the majority of the workers in the grade. The MUT issued an affidavit regarding majority representation to which the Government has not replied. Secondly, on 15 and 16 May 1978 the MUT called a strike of all members of primary and secondary schools to protest against the abolition of two school holidays which had been previously determined by agreement. According to the MUT, members of the police force were detailed to teach and impounded all teachers attendance registers. Following the strike, five MUT members who had been awarded one month bursaries to a foreign university had their scholarships withdrawn on the direct instructions of the Minister of Education; another member had his employment terminated despite the fact that he had been exempted from the strike and had a medical certificate to prove that he was ill on the days in question; other members were transferred without being given any reason; others who were performing extra duties (librarians and guidance teachers) were replaced by non-strikers. Thirdly, the MUT asserts that in October 1978 four Cabinet Ministers addressed the lecturing staff of the New University stating that the Government would not negotiate conditions of service with the MUT because of its support in an industrial dispute of its affiliate, the Medical Association of Malta, and warning that if the staff did not renounce membership of the MUT, a possible privilege regarding applications for academic posts would not be implemented. In February 1979, the MUT wrote to the Prime minister deploring these methods used to subdue trade union members.
3. 267. The MUT also alleges corruption in appointments and promotions within the Education Department, for example the selection of non-strikers for a position in the School of Music by an interviewing board. Moreover, it alleges that newly qualified teachers are employed on a part-time basis for several months on the pretext that they have to undergo an interview by a selection board and they are afraid of joining the MUT because this could prejudice their eventual permanent appointment. The GWU tries to coerce these teachers into its membership with promises that their permanent appointment will be effected once they join. Also in this connection, the MUT alleges that this rival union, with the encouragement and assistance of the Government, is trying to form a teachers' section although the MUT has united all teachers.
4. 268. By a letter of 11 April 1980 the complainant supplies copies of correspondence and press clippings concerning the MUT's allegation that the police interfered in schools during the May 1978 strike.

B. The Government's replies

1. 269. In its replies, the Government refers to its report to the ILO Committee of Experts on the Application of Conventions and Recommendations, dated 18 February 1980, stating that although the Joint Negotiating Council for government employees has not been set up, the Industrial Tribunal is functioning and dealing with all cases in the private sector. The Government states that the stumbling block to the setting up of the Council is the prolonged state of confrontation between the Maltese Confederation of Trade Unions and the Government owing to the former's support of its deregistered affiliate, MAM - the Medical Union, in a dispute connected with the medical profession. The Government adds that it has issued repeated invitations to the Confederation of Trade Unions to hold negotiations on various matters affecting public employees, including the setting up of the Council. However, because of the Confederation's continued support of its affiliate no progress could be made in the normalisation of relations between it and the Government.
2. 270. Regarding Act No. XXVIII of 1977, amending the Industrial Relations Act, the Government states that this amendment ensures that some essential medical services which are indispensable to the community remain unaffected by any industrial action taken by members of the medical profession. The restriction applies only to a very limited number of medical posts, listed specifically in the schedule to the amendment. In its letter of 14 April 1980 the Government reiterates that it is government policy that essential services in the Health Department, especially government hospitals, cannot under any circumstances be allowed to remain unmanned.
3. 271. As for the kindergarten assistants, the Government states that after verification it was established that the majority of them were members of the rival union (GWU) and thus negotiations took place with the GWU and not with the MUT. Regarding the allegation of corruption, the Government states that the Constitution and the courts provide adequate safeguards and remedies. It refers also to the National Employment Hoard set up under the Employment Service Act, 1955, to supervise the employment service, the Public Service Commission which has jurisdiction over the Public Service and the Employment Commission having jurisdiction "to hear and determine any application made to it in pursuance of the Constitution on the ground that in respect of employment, a distinction, exclusion or preference that is not justifiable in a democratic society has been made or given to [the applicant's] prejudice by reason of his political opinions". The Government states that its promotion policy is non-discriminatory and that the School of Music appointment cited by the MUT had been open for applications and that the Government had accepted the recommendation of the Public Service Commission. Regarding newly qualified teachers, the Government states that they are offered part-time jobs because they could not be absorbed immediately on a full-time basis and so that they would not remain idle or suffer hardship while waiting for work. All are absorbed on a full-time basis within a short time. The alleged divisive policy of the rival union is no concern of the Government.
4. 272. The Government supplies a copy of the Minister of Education's reply in Parliament on the subject of talks by police officers in schools. The reply explains that talks are regularly given on drug abuse, choice of careers, activities of the Police Department, observance of traffic regulations and the keeping of law and order, and that in most cases they are delivered at the request of teachers or heads of schools. Information was tabled on the talks to disprove allegations that the police had in any way hampered the MUT industrial action, especially as on the days in question talks were given in only two schools.
5. 273. As regards the teachers' strike, the Government points out that only 50 per cent of the complement of teachers in primary and secondary schools obeyed the MUT's directive. Some members of the police force forfeited their leave and volunteered to give lectures, but their services were solely utilised to protect government property in case this became necessary. It states that the attendance registers were urgently required for the collection of statistical data to answer the MUT's allegation that the great majority of teachers were on strike, and that police despatch riders helped in the collection of them from various schools. According to the Government, the Minister of Education has publicly explained that the bursaries had been converted into a long-period scholarship which was considered to be more useful to the needs of the country. Other teachers who had participated in the strike were allowed to take scholarships and to attend conferences abroad. The Government states that the termination of the services of the teacher mentioned by the MUT had nothing to do with his strike action, but concerned violations of the sick leave regulations. As regards the allegation of transfers after the strike, the Government states that they were made in the interests of the schools concerned while every consideration is also given to the teacher's request for transfer. As for the incident at the New University, the Government states that after repeated requests from various members of the staff the four ministers concerned had discussions with them at great length on an open, democratic and equal basis; the staff were clearly informed that they were at liberty to sign or not to sign the acceptance and some in fact did not sign any acceptance yet have remained on at the New University, thanks to extended and prolonged discussions. According to the Government, the ministers were not singling out the MUT when they stated it could not be involved in negotiations - the Government cannot enter into negotiations with those unions which were either taking or supporting industrial action against the Government.

C. Conclusions of the Committee

1. 274. The Committee notes that the allegations of the complainant concern anti-union discrimination and victimisation of its affiliate, the MUT, by the Maltese Government both through legislative means and through such action as reprisals after a strike and refusal to negotiate or negotiation with a rival union.
2. 275. Firstly, the complainant alleges that the Government has not implemented certain sections of the Industrial Relations Act providing for the establishment of a Joint Negotiating Council and the Constitution of the Industrial Tribunal. The Government replies that the Tribunal is functioning and that the Council has not been set up, despite invitations issued to the Confederation of Trade Unions to discuss the matter, because of a dispute regarding the medical profession. The Committee wishes to recall that while the refusal to permit or encourage the participation of trade union organisations in the implementation of new legislation or regulations affecting their interests does not necessarily constitute an infringement of trade union rights, the principle of consultation and cc-operation between public authorities and employers' and workers' organisations at the industrial and national levels is one to which importance should be attached. In this connection the Committee has drawn attention to the provisions of the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113).
3. 276. Secondly, the complainant alleges that Act No. XXVIII of 1977 removes from certain public officers the protection previously afforded against dismissal or discrimination for acts done in contemplation or furtherance of a trade dispute. The Government replies that this Act ensures the continuity of certain essential medical services which are indispensable to the community and only applies to a limited number of listed posts in the hospital sector. The Committee would like to point out as it has in the past that although industrial action, such as the right to strike by workers and their organisations, is generally recognised as a legitimate means of defending their occupational interests, this right could be restricted or even prohibited in the civil service or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. The Committee has considered that, on this criterion, the hospital sector is an essential service and thus it is of the opinion that this aspect of the case does not call for further examination.
4. 277. Regarding the alleged government repression and victimisation of MOT members and corruption in appointments and promotion in the Education Department, the Committee notes that the Government's explanations differ considerably from the allegations. It also notes the Government's reply that there exist adequate remedies and safeguards against such corruption. The Committee would generally like to point out that it has always underlined the importance to be attached to the principle contained in Article 1 of Convention No. 98, ratified by Malta, which provides that workers shall enjoy adequate protection against acts of anti-union discrimination. The Committee has stated that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures, and that this protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they must have the guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. Moreover, the Committee notes that the acts complained of took place in an environment of rivalry between the MUT and the GWU, the latter union, according to the complainant, being favoured by the Government. No evidence is presented to support this allegation. For its part, the Committee merely wishes to recall that by placing one organisation at an advantage or at a disadvantage in relation to the others, a government may either directly or indirectly influence the choice of workers regarding the organisation to which they intend to belong, since they will undeniably want to belong to the union best able to serve them, even if their natural preference would have led them to join another organisation for occupational, religious, political or other reasons.
5. 278. Regarding the allegation that an agreement concerning kindergarten assistants was concluded with a less-representative rival union, the Committee notes that, contrary to the complainant's assertion, the Government states that it negotiated with the most representative organisation. However, the Government does not specify the means used to ascertain majority representation and the Committee considers it appropriate to recall that where systems provide for preferential or exclusive bargaining rights, it is important that the determination of the most representative trade union should be based on objective and pre-established criteria, so as to avoid any opportunity for partiality or abuse.
6. 279. As regards the use of police officers during the May 1978 teachers' strike and alleged reprisals after the strike, the Committee notes the differing interpretations given by the complainant and the Government regarding the function of police officers' visits to schools. In particular, it notes that during the two-day strike period, talks were given by officers in only two schools by only two police officers and on subjects unrelated to the normal school curriculum. In addition, visits were organised for groups of schoolchildren to see a display of the police dogs section in earlier reports the Committee has considered that the employment of groups of persons to perform duties which have been suspended as a result of a labour dispute can - if the strike is lawful - be justified only by the need to ensure the working of services or industries whose suspension would lead to an acute crisis. The utilisation by the government of labour drawn from outside the trade, with a view to replacing the striking workers, entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights.
7. 280. The Committee considers the lectures and study visits organised by the police to have been of such a limited and extra curriculum nature that they cannot be considered to have affected the exercise of these rights and that therefore this aspect of the case does not call for further examination.