Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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

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).