Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Malta (Ratification: 1965)

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.

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

Article 2 of the Convention. Right to establish organizations without previous authorization. The Committee observes that, pursuant to section 51 of the Employment and Industrial Relations Act, 2002 (EIRA), 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. The penalty for contravention of this provision is a fine not exceeding €1,165. The Committee recalls in this regard that although 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, the exercise of legitimate trade union activities should not be dependent upon registration and should not be subject to penalties (see General Survey on the fundamental Conventions, 2012, paragraph 83). The Committee requests the Government to take the necessary measures to repeal section 51 of the EIRA.

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

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. For a number of years, the Committee has been requesting the Government to amend section 74(1) and (3) of the Employment and Industrial Relations Act, 2002 (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 that in its report, the Government indicates that the law aims at providing a speedy solution to labour disputes and that if the onus to resort to the Tribunal was imposed on both parties, they could become reluctant to use the Tribunal and labour relations would further deteriorate. The Government adds that the EIRA does not preclude any of the parties to a dispute to initiate or continue an industrial action even after the trade dispute has been referred to the Tribunal. While taking due note of this information, the Committee observes that the awards of the Industrial Tribunal are binding (section 82(1)) and thus would entail a prohibition of all recourse to an industrial action or a restriction to an ongoing industrial action. The Committee once again recalls in this regard that arbitration to end a collective labour dispute or a strike should only be allowed based on agreement of the parties to the dispute or where the strike may be restricted or prohibited, that is in disputes in the public service involving public servants exercising authority in the name of the State, in essential services in the strict sense of the term or in the event of an acute national crisis. The Committee, therefore, once again requests the Government to take the necessary measures, in consultation with the social partners, to amend section 74(1) and (3) of the EIRA to ensure respect for the abovementioned principles with regard to compulsory arbitration. It requests the Government to provide information on any developments in this regard.

Article 9. 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 (defined in the EIRA as armed forces, police, prison service and assistance and rescue force) 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 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 is raising other matters in a request addressed directly to the Government.

Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2016 which are of a general nature.

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

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee noted that under section 74(1) and (3) of the Employment and Industrial Relations Act 2002 (EIRA), where disputes have been referred to conciliation to promote an amicable settlement of a trade dispute and conciliation has not resulted in a settlement, one of the parties may notify the Minister and the Minister shall refer the dispute to the Tribunal for settlement.

The Committee recalls that compulsory arbitration to end a collective labour dispute is only accepted if it is at the request of both parties involved in a dispute, or 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, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In this respect, the Committee requests once again the Government to take the necessary measures to amend section 74(1) and (3) of the EIRA to ensure the respect of these principles. The Committee requests the Government to indicate any developments in this regard and to indicate in its next report any measures taken to bring its legislation into conformity with the Convention.

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

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes the observations of the International Organisation of Employers (IOE) received on 1 September 2015.

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

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee noted that under section 74(1) and (3) of the Employment and Industrial Relations Act 2002 (EIRA), where disputes have been referred to conciliation to promote an amicable settlement of a trade dispute and conciliation has not resulted in a settlement, one of the parties may notify the Minister and the Minister shall refer the dispute to the Tribunal for settlement.

The Committee recalls that compulsory arbitration to end a collective labour dispute is only accepted if it is at the request of both parties involved in a dispute, or 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, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In this respect, the Committee requests once again the Government to take the necessary measures to amend section 74(1) and (3) of the EIRA to ensure the respect of these principles. The Committee requests the Government to indicate any developments in this regard and to indicate in its next report any measures taken to bring its legislation into conformity with the Convention.

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

Observation (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee takes note of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

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

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee noted that under section 74(1) and (3) of the Employment and Industrial Relations Act 2002 (EIRA), where disputes have been referred to conciliation to promote an amicable settlement of a trade dispute and conciliation has not resulted in a settlement, one of the parties may notify the Minister and the Minister shall refer the dispute to the Tribunal for settlement.

The Committee recalls that compulsory arbitration to end a collective labour dispute is only accepted if it is at the request of both parties involved in a dispute, or 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, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In this respect, the Committee requests once again the Government to take the necessary measures to amend section 74(1) and (3) of the EIRA to ensure the respect of these principles. The Committee requests the Government to indicate any developments in this regard and to indicate in its next report any measures taken to bring its legislation into conformity with the Convention.

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

Observation (CEACR) - adopted 2011, published 101st ILC session (2012)

The Committee notes that the Government’s report does not provide any new information in respect of its previous observation.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee noted that under section 74(1) and (3) of the Employment and Industrial Relations Act 2002 (EIRA), where disputes have been referred to conciliation to promote an amicable settlement of a trade dispute and conciliation has not resulted in a settlement, one of the parties may notify the Minister and the Minister shall refer the dispute to the Tribunal for settlement.

The Committee recalls that compulsory arbitration to end a collective labour dispute is only accepted if it is at the request of both parties involved in a dispute, or 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, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. In this respect, the Committee requests once again the Government to take the necessary measures to amend section 74(1) and (3) of the EIRA to ensure the respect of these principles. The Committee requests the Government to indicate any developments in this regard and to indicate in its next report any measures taken to bring its legislation into conformity with the Convention.

Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

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

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee had requested the Government to clarify whether, under the terms of sections 74 of the Employment and Industrial Relations Act 2002 (EIRA), compulsory arbitration before the Industrial Tribunal could still be imposed over disputes of interest. The Committee had also requested information on the number of strikes and the incidents of recourse to the Minister’s power to refer disputes to the Industrial Tribunal at the request of only one party. The Committee had noted the Government’s explanation to the effect that, where a trade dispute exists or is apprehended, the parties to the dispute may agree to refer the dispute to the Director of Industrial and Employment Relations or to a conciliator chosen by the parties themselves or by the Director; thus the mechanism is purely voluntary. It is only where the parties choose to resort to conciliation, and the conciliator reports a deadlock, that the Director refers the matter to the Minister for eventual referral to the Industrial Tribunal. Furthermore, the Government had indicated that in 2007, five strikes were resolved through mediation and not through recourse to the Industrial Tribunal.

While noting this information, the Committee observes, nevertheless, that under section 74(1) and (3) of the Employment and Industrial Relations Act, where conciliation fails, any of the parties to the dispute may notify the Minister who in turn may refer the dispute to the Tribunal for settlement.

Further noting the information given by the Government that the Employment and Industrial Relations Act 2002 will be under review for possible amendment, the Committee requests the Government to ensure that due consideration is given, within this exercise, to amending section 74(1) and (3) of that law so that arbitration may not be imposed unless both parties agree. The Committee requests the Government to indicate any developments in this regard.

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

Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

The Committee notes with regret that no observation was provided by the Government on the comments submitted by the International Confederation of Free Trade Unions (ICFTU) in 2006, presently known as the International Trade Union Confederation (ITUC), particularly on account of some allegations reference to death threats against leaders of the General Workers Union (GWU). In this respect, the Committee recalls the Government that death threats against trade unionists create an environment of fear and have inevitable repercussions on the exercise of trade union activities, and that it should carry out inquiries into allegations of this kind.

Article 3 of the Convention. Right of organizations to freely organize their activities and to formulate their programmes. In its previous comments, the Committee had requested the Government to clarify whether, under the terms of sections 74 of the Employment and Industrial Relations Act 2002 (EIRA), compulsory arbitration before the Industrial Tribunal could still be imposed over disputes of interest. The Committee had also requested information on the number of strikes and the incidents of recourse to the Minister’s power to refer disputes to the Industrial Tribunal at the request of only one party. The Committee notes the Government’s explanation to the effect that, where a trade dispute exists or is apprehended, the parties to the dispute may agree to refer the dispute to the Director of Industrial and Employment Relations or to a conciliator chosen by the parties themselves or by the Director; thus the mechanism is purely voluntary. It is only where the parties choose to resort to conciliation, and the conciliator reports a deadlock, that the Director refers the matter to the Minister for eventual referral to the Industrial Tribunal. Furthermore, the Government indicates that in 2007, five strikes were resolved through mediation and not through recourse to the Industrial Tribunal.

While noting this information, the Committee observes, nevertheless, that under section 74(1) and (3) of the Employment and Industrial Relations Act, where conciliation fails, any of the parties to the dispute may notify the Minister who in turn may refer the dispute to the Tribunal for settlement.

Further noting the information given by the Government that the Employment and Industrial Relations Act 2002 will be under review for possible amendment, the Committee requests the Government to ensure that due consideration is given, within this exercise, to amending section 74(1) and (3) of that law so that arbitration may not be imposed unless both parties agree. The Committee requests the Government to indicate any developments in this regard.

Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

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

In its previous comments, the Committee had requested the Government, pursuant to comments by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) dated 10 August 2006, alleging death threats against leaders of the General Workers Union (GWU), to conduct an inquiry into these allegations and to provide information on the result. The Committee requests the Government to send its observations in its next report concerning these allegations.

The Committee also once again requests the Government to send its observations on the comments made by the ICFTU in 2006 with regard to suspensions of strikers, freezing of union assets and suits filed against unions following industrial action.

Article 3 of the Convention. In its previous comments, the Committee had requested the Government to clarify whether sections 74 and 75 of the Employment and Industrial Relations Act 2002, continue to impose compulsory arbitration over disputes of interest – just like the repealed Industrial Relations Act, 1976 – or whether the jurisdiction of the industrial tribunal (under section 75(1) of the Act) is now limited to disputes of rights only. The Committee had also requested information on the number of strikes and the incidents of recourse to the Minister’s power to refer disputes to the Industrial Tribunal at the request of only one party. The Committee notes that the Government’s report does not contain any information on these points.

The Committee had noted the Government’s reply to the request previously addressed to it with regard to the resolution of eight strikes held in 2003, to the effect that all of them were resolved through mediation by the authorities and not through recourse to the Industrial Tribunal.

The Committee recalls once again that restrictions on strike action through a compulsory arbitration procedure seriously limit the means available to trade unions to further and defend the interests of their members and are acceptable only in cases of essential services in the strict sense of the term, or public employees exercising authority in the name of the State, and at the request of both parties. The Committee once again asks the Government to clarify whether the Industrial Tribunal’s jurisdiction is limited to questions arising from disputes of right, or whether it is also entitled to hear disputes of interest and issue binding decisions thereon and, if so, to take the necessary measures to amend sections 74 and 75 of the Employment and Industrial Relations Act 2002, so as to ensure that compulsory arbitration may be imposed only in cases of essential services in the strict sense of the term and public employees exercising authority in the name of the State.

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

 

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

The Committee takes note of the Government’s report. In its previous comments, the Committee had requested the Government, pursuant to comments by the International Confederation of Free Trade Unions (ICFTU, now ITUC – International Trade Union Confederation) dated 10 August 2006, alleging death threats against leaders of the General Workers Union (GWU), to conduct an inquiry into these allegations and to keep it informed of the result. Noting that the Government’s report does not contain any information in this regard, and that no further information has been provided by workers’ organizations, the Committee requests the Government to indicate in its next report any measure taken to verify these allegations and take appropriate measures.

The Committee also once again requests the Government to send its observations on the comments made by the ICFTU in 2006 with regard to suspensions of strikers, freezing of union assets and suits filed against unions following industrial action.

Article 3 of the Convention. In its previous comments, the Committee had requested the Government to clarify whether sections 74 and 75 of the Employment and Industrial Relations Act 2002, continue to impose compulsory arbitration over disputes of interest – just like the repealed Industrial Relations Act, 1976 – or whether the jurisdiction of the industrial tribunal (under section 75(1) of the Act) is now limited to disputes of rights only. The Committee had also requested information on the number of strikes and the incidents of recourse to the Minister’s power to refer disputes to the Industrial Tribunal at the request of only one party. The Committee notes that the Government’s report does not contain any information on these points.

The Committee notes the Government’s reply to the request previously addressed to it with regard to the resolution of eight strikes held in 2003, to the effect that all of them were resolved through mediation by the authorities and not through recourse to the Industrial Tribunal.

The Committee recalls once again that restrictions on strike action through a compulsory arbitration procedure seriously limit the means available to trade unions to further and defend the interests of their members and are acceptable only in cases of essential services in the strict sense of the term, or public employees exercising authority in the name of the State, and at the request of both parties. The Committee once again asks the Government to clarify whether the Industrial Tribunal’s jurisdiction is limited to questions arising from disputes of right, or whether it is also entitled to hear disputes of interest and issue binding decisions thereon and, if so, to take the necessary measures to amend sections 74 and 75 of the Employment and Industrial Relations Act 2002, so as to ensure that compulsory arbitration may be imposed only in cases of essential services in the strict sense of the term and public employees exercising authority in the name of the State.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes that the Government’s report has not been received. In its previous request, the Committee made the following points in regard to the Employment and Industrial Relations Act, 2002, replacing the earlier Industrial Relations Act, 1976.

Article 2 of the Convention. The Committee observed that the definition of “worker” in section 2 of the Employment and Industrial Relations Act excludes any worker working for another party to a contract “who is not a professional client of his”, as well as any “member of a disciplined force” and notes that it is unclear as to which workers are thereby excluded from the definition and, accordingly, denied the right to organize. Given that the Convention guarantees all workers the right to establish and join trade unions, with the possible exception of the police and the armed forces, the Committee requests once again the Government to clarify which workers are excluded from the Act by virtue of the definition of “worker” and to indicate the measures taken or envisaged to ensure that all workers covered by the Convention may organize for the promotion and defence of their interests.

Further, the Committee noted that section 67 of the Act prohibits holders of certain public service offices and corporate managerial and executive posts who may be required to represent or advise the employer in its relations with the unions representing its other employees, from joining the union in question. The Committee recalls that provisions which prohibit workers in this category from joining trade unions in which other workers are represented are not necessarily incompatible with the Convention, provided they have the right to establish their own organizations and that the right to belong to those organizations is restricted to persons performing senior managerial or decision-making functions (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 66). The Committee requests once again the Government to confirm that managerial and executive staff may form their own organizations to promote and defend their interests and that section 67 in no way restricts their right to join the federation or confederation of their own choosing.

Article 4. In its previous request, the Committee noted that section 55(2)(b) of the Act provides a wide discretion to the registrar to cancel the registration of an organization and that section 55(5) provides that an appeal may lie against a decision to cancel the registration of an organization. Recalling that the dissolution of trade union organizations constitutes an extreme form of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees that can only be ensured through a normal judicial procedure with the effect of a stay of execution (see General Survey op. cit., paragraph 188), the Committee requests once again the Government to clarify whether an appeal under section 55(5) will be suspensive of the decision to cancel the registration of an organization.

Articles 5 and 6. Noting that the Act is silent as to the rights of trade unions and employers’ organizations to form and join national federations and confederations and international organizations, the Committee requests once again the Government to indicate whether federations and confederations of workers and employers are also registered under the same provisions as primary-level organizations, and whether there is any restriction on their right to join international organizations.

Observation (CEACR) - adopted 2006, published 96th ILC session (2007)

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

The Committee notes the comments of the International Confederation of Free Trade Unions (ICFTU) dated 10 August 2006, alleging that strikers were suspended, unions’ assets were frozen and unions were sued following industrial action. Furthermore, the ICFTU alleges death threats were made against leaders of the General Workers Union (GWU). The Committee requests the Government to take the necessary measures to conduct an inquiry concerning the alleged death threats against trade union leaders, to keep it informed of its result and to send its observations on the other comments made by the ICFTU.

Article 3 of the Convention. In its previous comments, the Committee observed that section 74 of the Employment and Industrial Relations Act, 2002 appears to substantially repeat the provisions of the repealed Industrial Relations Act, 1976, imposing a compulsory arbitration procedure for labour disputes leading to a final award binding on all parties. Furthermore, it observed that it is unclear, however, whether the jurisdiction of the industrial tribunal, pursuant to section 75(1) of the Act, is limited to binding decisions on disputes of rights, or will also allow binding decisions in relation to disputes of interest. Noting that restrictions on strike action through a compulsory arbitration procedure constitute a prohibition that seriously limits the means available to trade unions to further and defend the interest of their members, as well as their right to organize their activities and to formulate their programmes (see 1994 General Survey on freedom of association and collective bargaining, paragraph 153), the Committee again asks the Government to clarify whether the Industrial Tribunal’s jurisdiction is limited to questions arising from disputes of right, or whether it is also entitled to hear disputes of interest and issue binding decisions thereon.

Finally, the Committee had noted that eight strikes were held in Malta during 2003 and requested the Government to provide details of how each of these strikes were resolved and, in particular, whether they were resolved by recourse to the Industrial Tribunal, as well as to continue to provide information on the number of strikes and use of the Minister’s power to refer disputes to the Industrial Tribunal at the request of only one party. The Committee requests the Government to provide this information in its next report.

The Committee is addressing to the Government a direct request concerning the Employment and Industrial Relations Act, 2002.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee notes the Government’s report and that the Employment and Industrial Relations Act, 2002 replaces the earlier Industrial Relations Act, 1976. In this regard, the Committee wishes to make the following points.

Article 2 of the Convention. The Committee observes that the definition of "worker" in section 2 of the Employment and Industrial Relations Act excludes any worker working for another party to a contract "who is not a professional client of his", as well as any "member of a disciplined force" and notes that it is unclear as to which workers are thereby excluded from the definition and, accordingly, denied the right to organize. Given that the Convention guarantees all Maltese workers the right to establish and join trade unions, with the possible exception of the police and the armed forces, the Committee requests the Government to clarify which workers are excluded from the Act by virtue of the definition of "worker" and to indicate the measures taken or envisaged to ensure that all workers covered by the Convention may organize for the promotion and defence of their interests.

Further, the Committee notes that section 67 of the Act prohibits holders of certain public service offices and corporate managerial and executive posts who may be required to represent or advise the employer in its relations with the unions representing its other employees, from joining the union in question. The Committee recalls that provisions which prohibit workers in this category from joining trade unions in which other workers are represented are not necessarily incompatible with the Convention, provided they have the right to establish their own organizations and that the right to belong to those organizations is restricted to persons performing senior managerial or decision-making functions (see General Survey on freedom of association and collective bargaining, 1994, paragraph 66). It requests the Government to confirm that managerial and executive staff may form their own organizations to promote and defend their interests and that section 67 in no way restricts their right to join the federation or confederation of their own choosing.

Article 4. The Committee notes that section 55(2)(b) of the Act provides a wide discretion to the Registrar to cancel the registration of an organization and that section 55(5) provides that an appeal may lie against a decision to cancel the registration of an organization. Recalling that the dissolution of trade union organizations constitutes an extreme form of interference by the authorities in the activities of organizations and should therefore be accompanied by all the necessary guarantees that can only be ensured through a normal judicial procedure with the effect of a stay of execution (see General Survey op. cit., paragraph 188), the Committee requests the Government to clarify whether an appeal under section 55(5) will be suspensive of the decision to cancel the registration of an organization.

Articles 5 and 6. Noting that the Act is silent as to the rights of trade unions and employers’ organizations to form and join national federations and confederations and international organizations, the Committee requests the Government to indicate whether federations and confederations of workers and employers are also registered under the same provisions as primary-level organizations, and whether there is any restriction on their right to join international organizations.

Observation (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the information provided in the Government’s report. It further notes that the Employment and Industrial Relations Act, 2002, replaces the Industrial Relations Act, 1976.

Article 3 of the Convention. The Committee notes with interest the provision of compensatory guarantees in section 72 of the Employment and Industrial Relations Act, 2002, in relation to those workers employed in the specified essential services and minimum services whose right to strike is limited or denied.

The Committee observes that section 74 of the Act appears to substantially repeat the provisions of the repealed Industrial Relations Act, 1976, imposing a compulsory arbitration procedure for labour disputes leading to a final award binding on all parties. It is unclear, however, whether the jurisdiction of the Industrial Tribunal pursuant to section 75(1) of the Act is limited to binding decisions on disputes of rights, or will also allow binding decisions in relation to disputes of interest. Noting that restrictions on strike action through a compulsory arbitration procedure constitute a prohibition that seriously limits the means available to trade unions to further and defend the interest of their members, as well as their right to organize their activities and to formulate their programmes (see General Survey on freedom of association and collective bargaining, 1994, paragraph 153), the Committee requests the Government to clarify whether the Industrial Tribunal’s jurisdiction is limited to questions arising from disputes of right, or whether it is also entitled to hear disputes of interest and issue binding decisions thereon.

Further, the Committee notes the information provided by the Government that eight strikes were held in Malta during 2003 and requests the Government to provide details of how each of these strikes were resolved and, in particular, whether they were resolved by recourse to the Industrial Tribunal. The Committee requests the Government to continue to provide information on the number of strikes and use of the Minister’s power to refer disputes to the Industrial Tribunal at the request of only one party.

The Committee is addressing a request concerning further matters raised by the Employment and Industrial Relations Act, 2002, directly to the Government.

Observation (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes note of the information provided by the Government in its report. It notes, in particular, the Government’s indication that the activities of the Department of Industrial and Employment Relations regarding conciliation and mediation have been consolidated through the approval and cooperation of the social partners.

The Committee is compelled, once again to recall that it has been commenting on the incompatibility between the Industrial Relations Act and the provisions of the Convention for more than 20 years and therefore regrets that no amendments have been made to date to improve voluntary procedures for the settlement of industrial disputes. The Committee points out that restrictions on strike action, in particular through the imposition of a compulsory arbitration procedure leading to a final award, which is binding on the parties concerned, constitutes a prohibition which seriously limits the means available to trade unions to further and defend the interest of their members, as well as their right to organize their activities and to formulate their programmes, and is not compatible with Article 3 of the Convention (see General Survey on freedom of association and collective bargaining, 1994, paragraph 153).

The Committee notes that according to the Government, Maltese law does not proscribe industrial action when a dispute is referred to the Industrial Tribunal. The Committee, however, recalls the discrepancies between the legislation (sections 27-34 of the 1976 Industrial Relations Act) and the Convention relating to the discretionary powers of the Minister to impose compulsory arbitration. Since the decision of the Industrial Tribunal is binding and it can be given on application by one party to the dispute, and since it entails the prohibition of all recourse to strikes once it has been issued or the interruption of a strike that has been called during the conciliation procedure, the Committee must point out once again that compulsory arbitration should be restricted to the following cases: (a) public servants exercising authority in the name of the State; (b) essential services, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request arbitration.

While noting the Government’s indication that there has been no interference in industrial action in practice, the Committee requests the Government to continue to provide information on the number of strikes and any use of the Minister’s power to refer disputes to the Industrial Tribunal under section 27(1) at the request of only one of the parties to the dispute. The Committee once again expresses the firm hope that the Government will take the necessary measures in the very near future to bring its legislation into greater conformity with the Convention by ensuring that the Minister’s power is restricted to the cases mentioned above. It draws the Government’s attention to the availability of the technical assistance of the Office, should it so desire.

Observation (CEACR) - adopted 2000, published 89th ILC session (2001)

The Committee takes note of the information provided by the Government in its report and notes in particular that during the last year, no industrial action was affected as a result of compulsory arbitration. The Government indicates that whenever the Minister responsible for labour receives applications for referral of trade disputes to the Industrial Tribunal, he refers these disputes to the department for conciliation and that it is only after all avenues have been sought by all the social partners without resulting in settlement that a trade dispute is referred for hearing by the Industrial Tribunal. Also, the Government has just made public a legislative proposal which will enhance the Malta Council for Economic Development, by widening its scope to include the social development of Malta in its terms of reference. The Committee takes note of this information and asks the Government to inform it in its next report of any development in this regard and to forward a copy of the legislation adopted.

The Committee has to recall once again that it has been making comments on the incompatibility between the Industrial Relations Act and the provisions of the Convention for more than 20 years and therefore regrets that no amendments have been made to this date to improve voluntary procedures for the settlement of industrial disputes. The Committee can only reiterate once again with regret the discrepancies between the legislation (sections 27-34 of the 1976 Industrial Relations Act) and the Convention relating to the discretionary powers of the Minister to impose compulsory arbitration whereas such recourse should be restricted to the following cases: (a) public servants exercising authority in the name of the State; (b) essential services, namely those the interruption of which would endanger the life, personal safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request arbitration.

The Committee expresses again the firm hope that the Government will take the necessary measures in the very near future to bring its legislation into greater conformity with the Convention.

Observation (CEACR) - adopted 1999, published 88th ILC session (2000)

The Committee takes note of the information provided by the Government in its report and notes in particular that a subcommittee of the Malta Council for Economic Development is still examining the Industrial Relations Act with the aim of formulating the amendments needed to improve voluntary procedures for the settlement of industrial disputes. The Government also indicates that it will inform the Committee once discussions on the amendments have concluded.

The Committee regrets that discussions on the amendments to the Act in question have been continuing now for over ten years and can only reiterate the discrepancies between the legislation (sections 27-34 of the 1976 Industrial Relations Act) and the Convention relating to the discretionary powers of the Minister to impose compulsory arbitration whereas such recourse should be restricted to the following cases: (a) public servants exercising authority in the name of the State; (b) essential services, namely those the interruption of which would endanger the life, safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request arbitration.

The Committee requests the Government to keep it informed in its next report of discussions in the Malta Council for Economic Development and expresses again the firm hope that the Government will take the necessary measures in the very near future to bring its legislation into greater conformity with the Convention.

Observation (CEACR) - adopted 1998, published 87th ILC session (1999)

The Committee takes note of the information provided by the Government in its report. It notes in particular that a subcommittee of the Malta Council for Economic Development is examining the Industrial Relations Act with the aim of proposing appropriate amendments in order to improve voluntary procedures for the settlement of trade disputes. It further notes the Government's indication that an agreement has been reached concerning the setting up of a panel of mediators from outside the Department of Labour and that proposals have been made for facilitating hearings by the industrial tribunal. However, the Government also indicates that while the discussion on these issues is still ongoing, there exists a consensus of agreement amongst the social partners represented in the Council that the repeal of the provisions of the Industrial Relations Act relating to resort to arbitration at the request of one of the parties in a trade dispute is premature.

While noting that some progress has been made in the discussions of the Council since the Government's last report, the Committee has to recall once again that it has been making comments on the incompatibility between the Industrial Relations Act and the provisions of the Convention for more than 20 years and therefore regrets that the discussions on the proposals to amend the Act are still at the stage of consultation and that the repeal of the provision on the resort to arbitration at the request of one of the parties is considered premature by the Council. The Committee once again recalls that the discrepancies between the legislation (sections 27 and 34 of the Industrial Relations Act of 1976) and the Convention have to do with the possibility for the Minister to impose compulsory arbitration, whereas recourse to binding arbitration should be restricted to the following cases: (a) public servants exercising authority in the name of the State; (b) essential services whose interruption would endanger the life, safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request arbitration. Furthermore, the Government had mentioned in previous reports that sections 27 and 34 of the Industrial Relations Act of 1976 were intended to protect the weaker party in disputes, particularly where the stronger party is not prepared to accept arbitration. In this respect, the Committee recalls that it has always considered that arbitration imposed by the authorities at the request of one party is generally contrary to the principle of voluntary negotiation of collective agreements, and thus the autonomy of the bargaining partners. An exception might, however, be made in the case of provisions which, for instance, allow workers' organizations to initiate such a procedure on their own for the conclusion of a first collective agreement (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 257).

The Committee asks the Government to keep it informed of the outcome of the discussions within the Malta Council for Economic Development and once again expresses the firm hope that the Government will take the necessary measures in the very near future to bring its legislation into conformity with the Convention.

Observation (CEACR) - adopted 1996, published 85th ILC session (1997)

The Committee notes the information provided by the Government in its reports. It notes that the representatives on the tripartite Malta Council for Economic Development have agreed that there is a need to improve the machinery available for conciliation in trade disputes so as to promote speedy, voluntary settlements and to improve and expedite the arbitration procedures. It further notes the Government's indication that the consultation process has reached an advanced and delicate stage which will hopefully lead to the presentation of amendments to the Industrial Relations Act to Parliament within the not too distant future.

The Committee must recall that it has been making comments on the incompatibility between the Industrial Relations Act and the provisions of the Convention since 1970. It must therefore regret that the Government has only been able to reiterate its previous indications that the proposals to amend the Act are being studied by the Malta Council. It would recall that the discrepancies between the legislation and the Convention have to do, in particular, with the broad use of compulsory arbitration, whereas recourse to such arbitration should be restricted to the following cases: (a) public servants exercising authority in the name of the State; (b) essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request arbitration.

The Committee hopes that the Government will take the necessary measures in the very near future to bring its legislation into conformity with the Convention and recalls that ILO technical assistance is available to assist in the formulation of amendments to give effect to the Convention if the Government so desires.

Observation (CEACR) - adopted 1995, published 82nd ILC session (1995)

The Committee notes the information provided by the Government in its reports. The Committee regrets once again that the Government has taken no action to amend the provisions on compulsory arbitration at the request of one of the parties in its Industrial Relations Act. The Committee would emphasize that it has been making its comments on this incompatibility with the Convention since the 1970s. In its most recent report, the Government merely indicates that the Malta Council for Economic Development on which Government, trade unions and employers' organizations are represented has not published draft proposals for an amendment to the Industrial Relations Act.

Recalling that since 1989 the Government has stated that it would take action to amend the Act, the Committee would reiterate once again that the Government should indicate in its next report the measures that have been taken to bring its legislation into conformity with the Convention. This could be done notably by establishing a system in which recourse to binding arbitration involving the prohibition or interruption of strikes is confined to: (a) public servants exercising authority in the name of the State; (b) essential services whose interruption would endanger the life, personal safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request such arbitration.

Furthermore, the Committee would once again remind the Government that the International Labour Office is at its disposal for any assistance that may be needed in formulating amendments which will give effect to the Convention.

Observation (CEACR) - adopted 1993, published 80th ILC session (1993)

Referring to its previous comments, the Committee regrets that the Government has taken no action to amend the Industrial Relations Act in its provisions for compulsory arbitration on the request of one of the parties. The Committee has commented on this violation of the principles of the Convention since the 1970s; since 1989, the Government has indicated that legislative action would be forthcoming to amend the Act. In the current report, the Government indicates only that discussions between the interested parties are in hand with the object of revising the provisions relating to industrial relations in Malta.

The Committee therefore reiterates once again that the Government should indicate in its next report the measures that have been taken to bring its legislation into conformity with the Convention by establishing a system in which recourse to binding arbitration involving the prohibition or interruption of strikes is confined to: (a) public servants acting in their capacity as agents of the public authority; (b) essential services, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request such arbitration.

The Committee also requests the Government to provide the text of section 45 of the Constitution of Malta as amended by Act XIX of 1991.

The Committee would remind the Government that the International Labour Office is at its disposal for any assistance that may be needed in formulating amendments which will give effect to the Convention.

Observation (CEACR) - adopted 1991, published 78th ILC session (1991)

Referring to its previous comments on the dispute settlement procedure which empowers the Minister, at the request of one of the parties only, to submit unresolved disputes to binding arbitration after the conciliation stage (sections 27 and 34 of the Industrial Relations Act of 1976), the Committee notes the information supplied by the Government in its report to the effect that the initiation of the arbitration procedure does not prevent trade unions from calling strikes or engaging in other types of industrial action to press their claims. According to the Government, these provisions are intended to protect the weaker party in disputes, particularly where the stronger party is not prepared to accept arbitration.

The Committee points out, however, that binding arbitration procedures, whether or not preceded by a conciliation stage, must be designed to facilitate bargaining between the two sides. This means that it is for the parties to decide whether or not they wish to refer any matters in dispute to binding arbitration.

The Committee notes with interest that the Government is currently examining the provisions of the Industrial Relations Act with the intention of introducing amendments and that its comments will be taken into consideration in this re-examination. The Committee requests the Government once again to indicate in its next report the legislative measures that have been taken to bring its legislation into conformity with the Convention by establishing a system in which recourse to binding arbitration involving the prohibition or interruption of strikes is confined to: (a) public servants acting in their capacity as agents of the public authority; (b) essential services, namely those whose interruption would endanger the life, personal safety or health of the whole or part of the population; (c) situations of acute national crisis; or (d) cases in which both parties request such arbitration.

Observation (CEACR) - adopted 1989, published 76th ILC session (1989)

Referring to its earlier comments on the compulsory disputes settlement system (sections 27 and 34 of the Industrial Relations Act, 1976), the Committee notes the reply of the Government stating that compulsory arbitration has existed in this country since 1949, that it constitutes a means of promoting the quick settlement of industrial disputes without protracted industrial action, that unions and employers have so far always respected the awards of the Industrial Tribunal, and that the latter's effectiveness and credibility would be seriously impaired if its decisions were not binding on both parties. The Government also states that it is carefully studying the observations of the Committee and that they will be given due weight when introducing a Bill in Parliament to amend the Industrial Relations Act.

The Committee points out that binding arbitration procedures whether or not preceded by a conciliation step must be designed to facilitate bargaining between the two sides. This means that it should be for the parties to decide whether or not they wish to refer any matters in dispute to binding arbitration. However, given that section 27 of the Industrial Relations Act 1976 empowers the Minister, when the conciliation efforts have not produced a settlement, to refer a dispute to the Industrial Tribunal at the request of any of the parties, and since the award of the tribunal is binding and entails the prohibition of recourse to strikes, the Committee can only insist that such prohibitions or interruptions of strikes should be confined: (a) to public servants acting in their capacity as agents of the public authority; (b) to services whose interruption would endanger the life, the personal safety or health of the whole or part of the population, or (c) in situations of acute national crisis.

The Committee can only insist that the Government should re-examine the situation in the light of its comments and take the necessary measures in the near future to bring its legislation into conformity with Article 3 of the Convention, and requests to keep it informed of developments in that respect.