Comments adopted by the CEACR: Malta

Adopted by the CEACR in 2022

C144 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Articles 2 and 5 of the Convention. Effective tripartite consultation. The Committee welcomes the Government’s first report on the application of the Convention. It notes the Government’s indication that the most representative organizations of employers and workers in Malta for the purpose of the Convention are: the General Workers’ Union (GWU); the Confederation of Malta Trade Unions (CMTU); the Malta Employers’ Association (MEA); and the Malta Chamber of Commerce, Enterprise and Industry. The Government refers to the tripartite Employment Relations Board (ERB) as the de facto consultation mechanism for all matters related to employment law, industrial relations and ILO matters. Since the Convention was ratified by Malta in 2019, the ERB has held consultations with respect to the matters on the agenda of the 108th Session of the International Labour Conference, including on the draft of the Violence and Harassment Convention (No. 190) and the Centenary Declaration on the Future of Work. Stakeholders were also asked for their comments on government responses to article 22 reports. On 6th April 2021, the ERB was also consulted with respect to the possible ratification of the Domestic Work Convention, 2011 (No. 189) and on the submission of the Violence and Harassment Recommendation, 2019 (No. 201) and the Employment and Decent Work for Peace and Resilience Recommendation, 2017 (No. 205) to Malta’s competent authority (the House of Representatives). The Government adds that ERB meetings are held monthly and that items are placed on the agenda for consultation as the need arises. The Committee notes, however, that the Government does not provide information on tripartite consultations held with regard to other matters concerning international labour standards under Article 5(1), such as questionnaires on Conference agenda items (Article 5(1)(a)); the re-examination at appropriate intervals of unratified Conventions and of Recommendations to which effect has not yet been given (Article 5(1)(c)); and the possible denunciation of ratified Conventions (Article 5(1)(e)). The Committee requests the Government to provide updated detailed information on the content and outcome of tripartite consultations held on all matters concerning international labour standards covered by Article 5(1)(a) through (e) of the Convention, including tripartite consultations held with respect to the possible ratification of Convention No. 189.

Adopted by the CEACR in 2021

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee takes note of the observations of the General Workers’ Unions (GWU) received on 31 August 2019, which denounce violations of the right to organize in practice. The GWU alleges that various employers and contractors circumvent the legislative provisions on freedom of association by depriving their workers of their right to join trade unions. The Committee requests the Government to provide its comments in this regard.

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee previously observed that section 51 of the Employment and Industrial Relations Act, 2002 (EIRA) provides that a trade union or an employers’ association and any member, officer or other official thereof, may not perform any act in furtherance of any of the purposes for which it is formed unless such union or association has first been registered, and that the penalty for contravention of this provision is a fine not exceeding €1,165. It requested the Government to take the necessary measures to repeal section 51 of the EIRA. The Committee notes that the Government indicates that: (i) registration is important so that trade unions, employers’ associations and their members can be officially recognized and able to effectively engage in collective bargaining; (ii) registration is free; and (iii) the annual reporting system provides data on the abovementioned organizations, which helps determine their activity level. The Committee recalls once again that the official recognition of an organization through its registration constitutes a relevant aspect of the right to organize, as it is the first measure to be taken so that organizations can fulfil their role effectively. At the same time, the Committee also recalls that the exercise of legitimate trade union activities should not be dependent upon registration, nor should the exercise of such legitimate activities be subject to penalties. The Committee reiterates its request for the Government to take the necessary measures to repeal section 51 of the EIRA.

Article 3. Right of organizations to freely organize their activities and to formulate their programmes. In its previous observations, the Committee requested the Government to amend section 74(1) and (3) of the EIRA – according to which, if an amicable settlement of a trade dispute and conciliation has not resulted in a settlement, one of the parties may notify the Minister, who shall refer the dispute to the Industrial Tribunal for settlement – so as to ensure that compulsory arbitration to end a collective labour dispute is only possible in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term. The Committee notes the Government’s indication that: (i) the mechanism provided by the abovementioned section is to be used in case of failure of conciliation as facilitated under section 69 of the EIRA; (ii) the purpose of the Industrial Tribunal would be gravely undermined if a party could not challenge another party unless the latter agrees; and (iii) since the Industrial Tribunal has exclusive jurisdiction on trade disputes, the parties cannot resort to other means such as the civil courts. The Committee once again recalls that recourse to compulsory arbitration to bring an end to a collective labour dispute is only acceptable when the two parties to the dispute so agree, or when a strike may be restricted or prohibited – that is, in the case of disputes concerning public servants exercising authority in the name of the State, essential services in the strict sense of the term or situations of acute national crisis. It further recalls that accordingly, the failure of conciliation and the existence of protracted disputes are not per se elements which justify the imposition of compulsory arbitration. The Committee urges the Government to take the necessary measures to modify section 74(1) and (3) of the EIRA to ensure that compulsory arbitration may only take place with the approval of both parties or in circumstances in which a strike can be restricted or prohibited. The Committee requests the Government to inform on any developments in this respect.

Article 9. Armed forces and the police. The Committee previously 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. It invited the Government to provide information on the application in practice of section 67A of the EIRA, in particular whether any trade unions have been formed and registered under this provision and the number of their members, and also whether any requests for such trade union registration are under consideration or have been rejected. The Committee notes the Government’s indication that 1,189 members have registered with the Malta Police Association, 1,356 members have registered with the Police Officers Union and 165 members have registered with the Union of Civil Protection. It also notes that the Government points out that there have been no further requests for such unions to be registered, and no requests have been rejected. The Committee invites the Government to continue providing information on the practical application of section 67A of the EIRA.

C098 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

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).