Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

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.