Informe definitivo - Informe núm. 152, Noviembre 1975

1. 6. The complaint on behalf of the above-mentioned organisations of government employees was transmitted to the ILO by the European Organisation of the International Federation of Employees in Public Services by a communication dated 6 November 1974. The Government of Malta, to whom the complaint was communicated for observations, replied to the allegations in a communication dated 9 December 1974.
2. 7. Malta has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 8. The complainants state that, on 31 December 1973, an agreement was reached between the Confederation of Malta Trade Unions (CMTU) and the Government concerning a reorganisation of the public service. This agreement provided, inter alia, for the introduction of a 40-hour, 5-day week for all public employees. Prior to this agreement industrial public employees worked an average 44-hour week whereas non-industrial public employees worked an average 40-hour week, in both cases spread over 6 days. In a note concerning the interpretation of the agreement it is stated, with regard to the introduction of the 40-hour week, that "all officers connected with production will work hours which will coincide with the industrial timetable". The complainants state, in this connection, that the word "production" was not defined, nor was there any clarification as to which officers were considered to be connected with production.
2. 9. The complainants add that, subsequent to this agreement and prior to the implementation of the 5-day week, discussions were held with a number of unions concerning the details for implementing the 40-hour, 5-day week, but none were held with the Malta Government Professional Officers' Association (MGPOA) although it was closely involved in the matter. Without discussion or advance notice, state the complainants, professional officers in the Public Works Department, who are represented by the MGPOA, were ordered to observe the industrial timetable as from 4 February 1974, the date on which the new system came into effect. A protest by the MGPOA was made immediately to the Director of Public Works who was informed that the directive would be ignored until discussions took place with the Government and a solution found. According to the complainants, the MGPOA continued to press for discussions and for a definition of the term "production", but the Government failed to respond and informed the employees individually that if they failed to report for work at the same time as industrial employees they would be suspended and charged with a view to their dismissal. The MGPOA therefore informed the Director of Public Works that it had advised its members to continue to observe the non-industrial timetable.
3. 10. On 15 February 1974 the professional officers who obeyed the MGPOA's instructions were suspended and proceedings were instituted for their dismissal. The officers concerned rejected the charges brought against them stating that they had only acted in accordance with a legitimate trade union directive in a trade dispute. Eventually, their case was examined by a Disciplinary Board which, state the complainants, was not properly constituted in terms of the Public Service Commission (Disciplinary Procedure) Regulations, 1972, since the Chairman was not appointed in consultation with the unions and staff associations concerned as required by the said Regulations. The complainants state that after a number of sittings this Board, without according the officers concerned a proper chance to defend themselves, recommended their dismissal from the service in their absence written submissions regarding these irregularities were later presented to the Public Service commission by counsel for the officers in question.
4. 11. The complainants allege that the Government, in omitting to bargain collectively with the MGPOA which represents the professional officers in the public service on matters affecting conditions of work, and in proceeding to implement changes despite representations by the MGPOA, acted in a discriminatory manner towards the MGPOA. The complainants further allege that, as a result of the severe disciplinary action taken against 21 members of the MGPOA for obeying a legitimate trade union directive, the Government violated the right to strike of public servants who, in Malta, have no possibility of recourse to conciliation and arbitration procedures.
5. 12. In amplification of the allegations the complainants add that the Government had instructed civil engineers in the Public Works Department to observe the industrial timetable, while civil engineers in other departments were not affected by these instructions. This shows, state the complainants, that the agreement did not in any way determine the question of what persons were "connected with production". The complainants add that the imposition of a new timetable, without consultation or advance notice to the MGPOA, was contrary to the Government's own circular No. OPM/71/71 which lays down that unions should be given advance notice of any change in the conditions of work of their members. Some of the officials concerned, continue the complainants, were individually approached by ministry officials and were promised that if they returned to work and followed the industrial timetable, disciplinary action against them would be dropped. Two of those involved accepted this offer and had their suspension lifted. The remaining nineteen refused and the proceedings against them continued.
6. 13. The action taken by the Disciplinary Board, allege the complainants, will have adverse repercussions on the members of the MGPOA and of the other unions who, for fear of similar sanctions being imposed, will not obey directives of their unions, thus rendering free trade unions ineffective. The complainants see the actions of the Government as an attempt to break the union and to discredit it in the eyes of its members and potential members.
7. 14. The Government, in its reply dated 9 December 1974, emphatically denies the allegations brought against it. It is amply clear, states the Government, that the operations of the Public Works Department cannot be considered as anything but government production (indeed, it constitutes one of the major production sectors of the administration). Prior to the signing of the agreement in question, the Government explains, the delegates of the Confederation of Malta Trade Unions had proposed that the interpretation note concerning the point in question should read: "officers coincide connected with production will work hours which will coincide with the industrial timetable". The Government, however, considered that it was necessary to specify that all officers were liable to working the industrial timetable. In order to eliminate the remaining difficulties regarding the agreement, the Confederation delegates were called to a meeting with the Prime Minister on 24 December 1973 and were informed that it was understood that engineers in the Public Works Department would be among the very first officers who would be required to work according to the industrial timetable. The Government adds that it was explained to the delegates of the Confederation that it was absolutely essential for the Government to introduce in the Public Works Department the same practice which applied in the building industry all over Malta whereby architects and engineers start work at the same time as industrial employees in order to set the day's work. The Government states that this proposal was eventually accepted by the Confederation, and it is stated in the agreement that "all officers connected with production will work hours which will coincide with the industrial timetable". Throughout the discussions it was clear that the term "production" referred most definitely to the operations carried out by the Public Works Department, which works were normally carried out under the supervision of engineers. The Government points out that the President of the Malta Government Professional Officers' Association (MGPOA) was among the delegates of the Confederation at these discussions.
8. 15. As for the allegation that no discussions were held with the MGPOA following the signing of the agreement, the Government states that on 17 January 1974 the Principal Assistant Secretary (Establishments) of the Prime Minister's office and his assistant met a delegation of the Confederation (which again included the President of the MGPOA) and agreed on the actual timetable to be introduced in connection with the 40-hour, 5-day week. During this meeting, the Government explains, there was reference to the question of non-industrial staff who would have to work according to the industrial timetable and there was no indication from the Confederation that any instructions in this regard would not be acceptable to them or that any further consultations would be required. In spite of this, continues the Government, a further meeting was held on 12 February 1974 with the MGPOA under the chairmanship of the Minister of Public Building and Works.
9. 16. At this meeting the Minister explained that the instructions issued (and which were being disregarded by the officers concerned) were in keeping with the letter and spirit of the agreement and that it was absolutely necessary that the engineers in this Department observe the industrial timetable. According to the Government, since the delegations could not put forward any valid reasons why this rule should not be observed, and as the refusal of the officers constituted a continuing offence which could no longer be tolerated, the Minister advised that the officers concerned would be given two days in which to comply with instructions, failing which he would institute proceedings for their dismissal.
10. 17. The Government adds that the officers continued to disregard the instructions and that disciplinary proceedings were accordingly instituted on 14 February 1974. It is significant to note, states the Government, that none of the meetings referred to above is mentioned in the complaint.
11. 18. The Government emphatically denies that the Disciplinary Board which heard the case was not constituted properly in terms of the Public Service Commission (Disciplinary Proceedings) Regulations, 1972. In accordance with these Regulations the necessary consultations were held with the association concerned (the MGPOA) before the Chairman of the Disciplinary Board was appointed. Indeed, states the Government, this point was raised by the MGPOA at the Disciplinary Board and at the appeal before the Public Service Commission, but the Association's view was not upheld.
12. 19. With regard to the allegation that the decision of the Board was issued in the absence of the officers and that they had no proper chance to defend themselves, the Government explains that throughout the proceedings the officers concerned chose not to be present at any of the several sittings of the Board. They were, however, represented during these sittings by the President of their Association and by their legal adviser who, adds the Government, were intent on delaying and obstructing the proceedings as far as possible. On 18 September 1974, when the proceedings had reached a crucial stage, the officers' representatives stated that they would not be prepared to attend the next sitting which the Chairman had fixed for the following day. It is to be noted, adds the Government, that even though the representatives of the officers concerned must have known that the proceedings had continued and had reached their final stage, they did not make any inquiries as to the further meetings of the Board until its recommendation was communicated to them on 27 September 1974.
13. 20. The Government continues that the officers availed themselves of their right of appeal to the Public Service Commission against the decision of the Disciplinary Board. The Commission, after hearing submissions made by the representatives of the officers, found the officers guilty of the charges against them and recommended to the Prime Minister that they (i) be fined a sum equivalent to 5 per cent of their salary, (ii) forfeit that part of their salary withheld as a result of their interdiction, (iii) have their interdiction lifted and (iv) resume their duties forthwith on condition that they conform to the working hours as fixed by the Department.

B. B. The Committee's conclusions

1. 21. The Committee notes that the complaint essentially concerns the disciplinary action taken against 21 officers of the Department of Public Works consequent upon their failure to observe the terms of a collective agreement concluded between the Government and the Confederation of Malta Trade Unions on 31 December 1973. According to the complainants, the action of the Government in failing to negotiate the implementation of the said agreement with the Malta Government Professional Officers' Association (MGPOA), and in instituting disciplinary proceedings against twenty-one of its members, constituted an act of anti-union discrimination against the MGPOA. In addition, the complainants have alleged that in taking disciplinary action against the officers in question for obeying a legitimate trade union directive the Government violated the right to strike of public servants who, in Malta, have no possibility of recourse to conciliation and arbitration procedures.
2. 22. The Committee notes that, in connection with one part of the aforementioned collective agreement concerning the introduction of a 40-hour, 5-day week for all public employees, the question had arisen as to the interpretation of the term "officers connected with production" since the agreement provided a different timetable for such persons. In particular, the Committee notes that, in order to overcome any problem of interpretation of this clause before the agreement came into force, negotiations were held with the Confederation on 24 December 1973 during which agreement appears to have been reached that all officers connected with production (including, in particular, public works officers) would be required to work the industrial timetable. Furthermore, it appears that another meeting was held on 17 January 1974 between the Principal Assistant Secretary of the Prime Minister's office and a delegation of the Confederation to agree on an actual timetable in connection with the 40-hour, 5-day week. At a further meeting on 12 February 1974 with the MGPOA the matter again seems to have been discussed and an opportunity given to the officers in question to comply with the agreed timetable. At each meeting with the Confederation the MGPOA appears to have been represented by its President.
3. 23. Having regard to the information at its disposal the Committee considers that it has not been established that the Government at any time failed to negotiate the terms of the agreement or the implementation thereof. Consequently, the Committee considers that the Government's action in instituting, in accordance with the Regulations, disciplinary proceedings against the officers who, by following a directive of their union, failed to comply with the timetable which appears clearly to have been fully negotiated and accepted by the Confederation as a whole, did not in the present case constitute an infringement of trade union rights. In the view of the Committee the questions raised in this case are matters for negotiation between the parties and any dispute arising in connection with matters of this kind should be resolved through conciliation or arbitration procedures. In similar situations in the past the Committee has pointed out that whether one of the parties adopts a conciliatory attitude or an intransigent attitude with respect to the demands of the other party is a matter for negotiation between the parties in accordance with the law of the country concerned.