Composition of Malta Industrial Tribunal Declared Unconstitutional

Composition of Malta Industrial Tribunal Declared Unconstitutional

Employment and Industrial Relations

On the 12th February 2016, the Court of Appeal confirmed a judgment which was delivered by the Constitutional Court in June 2015 in the names of GWU v The Attorney General which essentially declared that the constitution and the composition of the Industrial Tribunal under EIRA is unconstitutional as the chairpersons do not have security of tenure since the Minister for Employment may remove a chairperson every three years.

The law suit was originally instituted in 2008 when the General Workers’ Union filed two cases against the Attorney General in the First Hall of the Civil Court in its constitutional jurisdiction. The GWU successfully argued that the tribunal as composed was illegal and against the Constitution as it did not respect the principles of fair hearing. The GWU’s arguments were based on the fact that when the Government or any parastatal company is involved in a trade dispute, the chairperson of the Tribunal is chosen from the usual list, then a member is selected from the list provided by trade unions and, thirdly another member is selected from a list representing the Government or the actual company involved in the dispute, appointed ad hoc by the Minister for Employment

In the original judgement, which has essentially been confirmed by the Court of Appeal, the Court recommended that the President and the Speaker of the House of Representatives amend the law in order to bring the tribunal’s composition in line with the Constitution. This judgement has naturally caused extensive uncertainty since a question mark has arisen on the way forward for pending proceedings before the Industrial Tribunal. The consequence may well be that lawyers will request the tribunal to halt proceedings until an Industrial Tribunal is composed with the parameters of the Maltese Constitution, a process which may take months to be actually implemented.

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