Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Malta (RATIFICATION: 1965)

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The Committee takes note of the observations of the General Workers’ Union received on 31 August 2019 referring to matters examined in this comment.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous observations, the Committee had requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals submitted by public officers, port workers and public transport workers given that, pursuant to the Employment and Industrial Relations Act, 2002 (EIRA) those categories are excluded from the jurisdiction of the industrial tribunal.

Concerning the public officers, the Committee had noted that they could appeal to the Public Service Commission (PSC), an independent body, and requested the Government to indicate whether the PSC was empowered to grant such compensatory relief as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee notes that the Government informs that: (i) according to the provisions of the PSC Disciplinary Regulations, public officers may only be dismissed upon recommendation of the PSC; (ii) the PSC recommends the dismissal of a public officer after the finding of guilt for having committed an offence listed in the Schedule of offences and penalties appended to the PSC Disciplinary Regulations; (iii) union activity is not considered a disciplinary offence and therefore is not listed in the Schedule; (iv) as there are a number of safeguards which need to be observed prior to the dismissal of a public officer, it is highly unlikely that a public officer could be dismissed from the public service for anti-union reasons, and (v) information about compensatory relief in case of anti-union dismissal of public officers is not currently being sought from the PSC. Regarding the port workers, the Committee notes that the Government indicates that: (i) they are licensed and registered under the terms of the relevant regulations; (ii) all licensed port workers are represented by the Malta Dockers Union; and (iii) the Port Workers Board, which is partly composed by representatives of the Malta Dockers Union, acts as a disciplinary board. The Committee takes due note of the elements provided by the Government concerning the procedures that precede the dismissal of public officers, on the one hand, and port workers, on the other hand, and that contribute to prevent the occurrence of anti-union dismissals. The Committee requests however the Government to indicate before which body the public officers and the port workers may appeal against decisions taken by the PSC and the Port Workers Board, respectively, in case they consider they were subject to anti-union dismissals.

Concerning the public transport workers, the Committee notes that the Government informs that: (i) scheduled public transport workers are employed by a private company and the Union UMH is recognized as their trade union; and (ii) collective grievances are raised through this union to the company’s management. The Committee reiterates its request for the Government to indicate the specific procedures applicable for the examination of allegations of anti-union dismissals concerning scheduled public transport workers.

The Committee also previously observed that the general sanctions set by section 45(1) of the EIRA might not be sufficiently dissuasive, particularly for large enterprises, and requested the Government to take the necessary measures, after consultation with the social partners, to provide for sufficiently dissuasive sanctions for acts of anti-union discrimination. The Committee notes that the Government indicates that it is currently conducting an exercise with the social partners to review and update the EIRA but does not foresee any changes to section 45(1) at this stage. The Committee requests the Government to take the necessary measures within the framework of the revision of the EIRA to bring the legislation into conformity with the Convention by ensuring that sufficiently dissuasive sanctions are provided for acts of anti-union discrimination.

Articles 2 and 3. Adequate protection against acts of interference. The Committee previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts. The Committee notes with regret that the Government, in its report, merely reiterates its position that parties who feel wronged by another party’s acts of interference can institute a civil action for damages before the courts of civil jurisdiction. The Committee recalls that Article 2 of the Convention requires the prohibition of acts of interference by organizations of workers and employers (or their agents) in each other’s affairs, designed in particular to promote the establishment of workers’ organizations under the domination of employers or employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations. The Committee once again requests the Government to take the necessary measures to adopt specific provisions prohibiting acts of anti-union interference, coupled with rapid appeal procedures and sufficiently dissuasive sanctions.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement. The Committee notes with interest the Government’s indication that the above-mentioned provision has been amended and now stipulates that when a national holiday or a public holiday listed in the Schedule falls on a Saturday or on a Sunday, it shall be deemed to be a public holiday for the purposes of entitling any person to a day of vacation leave in addition to the leave entitlement for that particular year.

Article 5. Armed forces and the police. In its previous observation, the Committee noted with interest the adoption of the Various Laws (Trade Union Membership of Disciplined Forces) Act, 2015 which amended the EIRA by adding a new section 67A, which gave members of the disciplined forces the right to become members of a registered trade union of their choice and stipulated that their organizations were entitled to negotiate the conditions of employment of their members. The Committee had requested the Government to provide information on the practical application of article 67A. The Committee examines the information provided by the Government in this respect under its comments concerning the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

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Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals submitted by public officers, portworkers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act, 2002 (EIRA). Having further noted that public officers could appeal to the Public Service Commission, an independent body established under section 109 of the Constitution of Malta, the Committee requested the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission was empowered to grant such compensatory relief – including reinstatement and back pay – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals of portworkers and public transport workers.

The Committee notes the Government’s indication that information about compensatory relief in case of anti-union dismissal of public officers is still being sought from the Public Service Commission and will be provided in the near future. The Government further states that a new Legal Notice on Trade Union Recognition, also applicable to Government employees, will enter into force and will contain the following clause: “No person may interfere, intimidate, exert any force or otherwise cause, or threaten to cause, detriment to an employee … for joining or attempting to join, or for leaving or attempting to leave a union.” Recalling that, according to its Article 6, public servants not engaged in the administration of the State are covered by the Convention and that the issue of compensatory relief in case of anti-union dismissal of public officers has been pending for over a decade, the Committee regrets that the Government has not provided a more substantial reply in this respect. The Committee thus requests the Government once again to indicate whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination that may affect public officers not engaged in the administration of the State. In addition, the Committee regrets that the Government has again failed to provide any information in relation to portworkers and public transport workers and, therefore, requests it once again to indicate the procedures applicable for the examination of allegations of anti union dismissals of these two categories of workers.

The Committee further observes that the EIRA does not provide for specific sanctions for acts of anti-union discrimination and that the general sanctions set by section 45(1) – a fine not exceeding €2,329 – would thus apply to such cases. Considering that this fine might not be sufficiently dissuasive, particularly for large enterprises, the Committee requests the Government to take the necessary measures, after consultation with the social partners, to provide for sufficiently dissuasive sanctions for acts of anti-union discrimination, so as to ensure the application of the Convention.

Articles 2 and 3. Adequate protection against acts of interference. In its previous observations, the Committee requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts. The Committee notes the Government’s indication that although the EIRA is silent on this subject, parties who feel wronged by another party’s acts of interference can institute a civil action for damages before the courts of civil jurisdiction. While taking due note of this information, the Committee emphasizes the importance of an explicit prohibition of acts of interference of workers’ and employers’ organizations, their agents or members in each other’s establishment, functioning or administration. The Committee therefore requests the Government to take the necessary measures to introduce such prohibition into the legislation, accompanied by rapid appeal procedures and sufficiently dissuasive sanctions.

Article 4. Promotion of collective bargaining. The Committee had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement. The Committee notes the Government’s indication that on the initiative of employee representatives, amendment of section 6 is being tabled for discussion among the social partners in the tripartite Employment Relations Board in the context of a re-examination of the EIRA. Welcoming this initiative, the Committee trusts that it will assist the Government in taking the necessary measures to amend section 6 of the National Holidays and Other Public Holidays Act in line with the Committee’s comments. The Committee requests the Government to provide information on any progress in this regard.

Article 5. Armed forces and the police. The Committee notes with interest the adoption of the Various Laws (Trade Union Membership of Disciplined Forces) Act, 2015 which amends the EIRA by adding a new section 67A, which gives members of the disciplined forces the right to become members of a registered trade union of their choice. Such a trade union shall not be entitled to limit its membership to any particular rank and shall be entitled to negotiate conditions of employment and to participate in dispute resolution procedures of a conciliatory, mediatory, arbitral or judicial nature on behalf of its members. The Committee invites the Government to provide information on the application in practice of section 67A of the EIRA, in particular whether any trade unions were formed under this provision and whether they were able to participate in collective bargaining.

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The Committee notes with deep concern that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, portworkers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee had noted from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti union dismissals of portworkers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. The Committee once again requests the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

The Committee expects that the Government will make every effort to take the necessary action in the near future.

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The Committee notes with regret that the Government’s report has not been received. It expresses deep concern in this respect. It is therefore bound to repeat its previous comments.

Repetition

Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, portworkers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee had noted from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti union dismissals of portworkers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. The Committee once again requests the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous comments.

Repetition

Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, portworkers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee had noted from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti union dismissals of portworkers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. The Committee once again requests the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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The Committee notes with regret that the Government’s report does not reply to its previous comments. It must therefore repeat its previous observation which read as follows:

Repetition

Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, portworkers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee had noted from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti union dismissals of portworkers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. The Committee once again requests the Government to indicate in its next report, the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Repetition

Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee had noted from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti union dismissals of port workers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. The Committee once again requests the Government to indicate in its next report, the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes that the Government’s report does not provide information on the specific issues raised. It must therefore repeat its previous observation which read as follows:

Repetition

Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee had noted from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti union dismissals of port workers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. The Committee once again requests the Government to indicate in its next report, the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes with regret that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee had noted from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti‑union dismissals of port workers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. The Committee once again requests the Government to indicate in its next report, the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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Article 1 of the Convention. The Committee recalls that it had previously requested the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers given that those categories are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). The Committee notes from the Government’s report that public officers have the right to appeal to the Public Service Commission, an independent body (the members are appointed by the President of Malta acting on the advice of the Prime Minister given after a consultation with the Leader of the Opposition and they cannot be removed except for inability or misbehaviour causes) established under section 109 of the Constitution of Malta. The Committee also notes from the Government’s report that the Public Service Commission’s primary role is to ensure that disciplinary action taken against public officers is fair, prompt and effective. The Committee requests the Government to indicate, with regard to cases of anti-union dismissal, whether the Public Service Commission is empowered to grant such compensatory relief – including reinstatement and back pay awards – as to constitute sufficiently dissuasive sanctions against acts of anti-union discrimination. The Committee also once again requests the Government to indicate the procedures applicable for the examination of allegations of anti‑union dismissals of port workers and public transport workers.

Articles 2 and 3. Protection against acts of interference. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts given that the EIRA does not expressly protect employers’ and workers’ organizations from acts of interference by one another, in each other’s affairs. Noting with regret that no observation is provided on this matter in the Government’s report, the Committee once again requests the Government to indicate in its next report, the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. The Committee recalls that it had previously requested the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act, so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, Case No. 2447, paragraph 752). The Committee, noting with regret that no information is provided in this respect, once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

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The Committee notes that the Government’s report has not been received. It must therefore repeat its previous observation which read as follows:

Article 1 of the Convention. In its previous comments, the Committee had requested the Government to clarify the procedures for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers given that these categories of workers are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). Noting with regret that the Government’s report does not provide information in this regard, the Committee once again requests the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers.

Articles 2 and 3. Protection against acts of interference. In its previous comments, the Committee had observed that the EIRA did not expressly protect employers’ and workers’ organizations from acts of interference by one another, nor did it provide for a rapid and effective appeals procedure or sanctions in the case of breach as is required to ensure compatibility with the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 232). While noting the Government’s indication that section 2 of the EIRA includes in the definition of “trade dispute” a dispute between “employers and workers” and “workers and workers”, so that, if an act of interference is alleged, any one of the parties can refer the matter to the industrial tribunal, the Committee notes that there is no explicit prohibition of acts of interference in the EIRA. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. In its previous comments, the Committee took note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2447 with regard to the need to amend section 6 of the National Holidays and Other Public Holidays Act so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, paragraph 752). Noting that the Government’s report does not contain any information in this regard, the Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

In its previous comments, the Committee had requested 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. The Committee takes due note of the Government’s report according to which nothing in the law precludes employers from negotiating with unions representing less than 50 per cent of employees.

In its previous observations, the Committee had noted 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 had also noted 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 and plans. The Committee recalls that, except in the case of public servants engaged in the administration of the State or essential services in the strict sense of the term, 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 General Survey, op. cit., paragraph 257). The Committee points out an observation to the Government on this point under Convention No. 87.

The Committee hopes that the Government will make every effort to take the necessary action in the very near future.

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The Committee notes the Government’s report.

Article 1 of the Convention. In its previous comments, the Committee had requested the Government to clarify the procedures for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers given that these categories of workers are excluded from the jurisdiction of the industrial tribunal pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA). Noting with regret that the Government’s report does not provide information in this regard, the Committee once again requests the Government to indicate the procedures applicable for the examination of allegations of anti-union dismissals by public officers, port workers and public transport workers.

Articles 2 and 3. Protection against acts of interference. In its previous comments, the Committee had observed that the EIRA did not expressly protect employers’ and workers’ organizations from acts of interference by one another, nor did it provide for a rapid and effective appeals procedure or sanctions in the case of breach as is required to ensure compatibility with the Convention (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 232). While noting the Government’s indication that section 2 of the EIRA includes in the definition of “trade dispute” a dispute between “employers and workers” and “workers and workers”, so that, if an act of interference is alleged, any one of the parties can refer the matter to the industrial tribunal, the Committee notes that there is no explicit prohibition of acts of interference in the EIRA. The Committee once again requests the Government to indicate in its next report the measures taken or contemplated so as to introduce in the legislation an explicit prohibition of acts of interference, as well as sufficiently dissuasive sanctions against such acts.

Article 4. Collective bargaining. In its previous comments, the Committee took note of the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2447 with regard to the need to amend section 6 of the National Holidays and Other Public Holidays Act so as to ensure that this provision: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, paragraph 752). Noting that the Government’s report does not contain any information in this regard, the Committee once again requests the Government to indicate the measures taken or contemplated with a view to amending section 6 of the National Holidays and Other Public Holidays Act.

In its previous comments, the Committee had requested the Government to indicate whether collective bargaining with trade unions representing less then 50 per cent of employees is possible, at least on behalf of their own members. The Committee takes due note of the Government’s report according to which nothing in the law precludes employers from negotiating with unions representing less than 50 per cent of employees.

In its previous observations, the Committee had noted 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 had also noted 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 and plans. The Committee recalls that, except in the case of public servants engaged in the administration of the State or essential services in the strict sense of the term, 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 General Survey, op. cit., paragraph 257). The Committee addresses a request to the Government on this point under Convention No. 87.

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The Committee notes that the Government’s report has not been received.

1. In its previous comments, the Committee had recalled that the Convention required 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 again 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 Employment and Industrial Relations Act, 2002 (EIRA) was for reasons of anti-union discrimination.

2. The Committee had further noted that it appeared that the protection against dismissal on the grounds of anti-union discrimination, contained in section 36(14) of the EIRA, only relates to the possibility of dismissing a worker without notice but with good and sufficient cause, while pursuant to section 36(11) workers on fixed-term contracts may be dismissed before the expiration of their contract, upon payment set out in the legislation, whether with or without cause. The Committee again requests the Government to clarify whether this is so in practice.

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The Committee notes that the Government’s report has not been received.

1. Comments made by the International Confederation of Free Trade Unions (ICFTU). The Committee notes the comments made by the ICFTU in a communication dated 10 August 2006 on the application of the Convention. The comments concern compulsory arbitration and the Public Holidays Act infringing upon provisions of collective agreements on holidays. The Committee points out that this question has been dealt with by the Committee on Freedom of Association which, in its recommendation, requested the Government to amend section 6 of the National Holidays and Other Public Holidays Act so as to ensure that this provisions: (i) does not render automatically null and void any provisions in existing collective agreements which grant workers the right to recover public holidays falling on a Saturday or Sunday; and (ii) does not preclude voluntary negotiations in the future over the issue of granting workers the right to recover national or public holidays which fall on a Saturday or Sunday on the basis of a collective agreement (see 342nd Report of the Committee on Freedom of Association, paragraph 752). The Committee requests the Government to keep it informed of the measures taken or envisaged to amend section 6 of the National Holidays and Other Public Holidays Act.

2. Article 1 of the Convention. In its previous observation, the Committee had observed that pursuant to section 75(1) of the Employment and Industrial Relations Act 2002 (EIRA), alleged unfair dismissals of certain categories of workers are excluded from the jurisdiction of the industrial tribunal and dealt with under separate legislation. The Committee asks again the Government to provide clarification of the procedures in place in relation to allegations of dismissal for reasons of anti-union discrimination for public officers, port workers and public transport workers.

3. Articles 2 and 3 of the Convention. Protection against anti-union discrimination and acts of interference. In its previous comments, the Committee had observed that the EIRA did not expressly protect employers’ and workers’ organizations from acts of interference by one another, nor did 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 General Survey 1994, paragraph 232). The Committee again requests the Government to take measures in order that the legislation prohibits and sanctions acts of interference in a sufficiently dissuasive way.

4. Article 4 of the Convention. Collective bargaining. In its previous comments, the Committee had noted the information provided by the Government that unions representing more then 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 again requests the Government to indicate whether collective bargaining with trade unions representing less then 50 per cent of the employees is possible, at least on behalf of their own members.

5. In its previous observations, the Committee had noted 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 had also noted 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 and plans. The Committee recalls that, except in the case of public servants engaged in the administration of the State 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 General Survey 1994, paragraph 257). The Committee again requests the Government to consider amending these provisions to ensure the compatibility of its legislation with the requirements of the Convention.

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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.

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1. Referring to its previous comments relating to Case No. 1349 examined by the Committee on Freedom of Association, which concerned a collective dispute between the Government and the Movement of United Teachers, the Committee notes with satisfaction that, following its recommendation, the Government has now fully refunded the salaries of the 31 worker-students with respect to their October 1984 strike. The Committee also notes with interest that the new Government immediately set out to remedy the adverse situation of the teachers who had been the object of compulsory transfers following their strike in October/November 1984, that the affected teachers were individually consulted and that their wishes were taken into consideration, all the while taking into account the exigencies of service.

2. As regards the establishment of the Joint Negotiating Council for the public sector, provided for by section 25 of the Industrial Relations Act No. 30 of 1976, the Committee notes with interest that the Government will study its recommendation, together with other possibilities, in conjunction with the unions concerned in order to arrive at a mutually agreeable solution to this problem. The Committee recalls that Article 4 of the Convention places on the Government a positive duty to encourage and promote the full development and utilisation of machinery for voluntary negotiation of collective agreements between the State (the employer) and this category of workers (public servants not engaged in the administration of the State). The Committee requests the Government to keep it informed in its future reports of the progress achieved as concerns the Joint Negotiating Council.