Observation (CEACR) - adopted 2007, published 97th ILC session (2008)

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

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.