Informe definitivo - Informe núm. 222, Marzo 1983

1. 131. By a communication dated 11 October 1982, the World Confederation of Organisations of the Teaching Profession (WCOTP) submitted a complaint of violations of trade union rights in Malta. The Government sent its reply in a communication dated 22 November 1982.
2. 132. 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. The complainant's allegations

1. 133. In its letter of 11 October 1982, the WCOTP presents a complaint on behalf of the Movement of United Teachers of Malta (MUT) against the Government for excessive measures taken against teachers and other public employees for having absented themselves from work on 29 June 1982. According to the WCOTP these workers had requested a day off on 29 June or had registered themselves as ill; this right to a day off was not accorded. It appears from the information attached to the complainant's communication that 29 June had been called as a public holiday by the Nationalist Party, an opposition party which - according to the complainant - had won 51 per cent of the votes at the December 1981 General Election, but due to the proportional representation system, secured only 31 of the 65 seats of Parliament. The Nationalist Party had called for a public holiday because its discussions with the Government concerning fresh elections had reached an impasse, and this particular day was chosen because it used to be a public holiday which the Government had unilaterally suppressed in 1977, such action still being subject to an appeal before the Court of Appeal by the Government. From the attached information it appears that the MUT and other trade unions did not support or oppose the Nationalist Party directive, but when their members did not report for work on 29 June the Government responded by suspending 78 of the MUT members as well as about 400 other workers in the public service or employees of parastatal organisations. According to the complainant disciplinary procedures were also instituted against these persons, whereas private employers apparently took no action whatsoever against thousands of their employees who stayed away from work on 29 June.
2. 134. The WCOTP points out that in seven cases out of nine, where the teachers cases came before the Public Service Commission (disciplinary body), they were told that there was 'Inc case" against them. The other government employees who also appeared before the Commission were notified that they had been found "not guilty". However, continues the complainant' on 8 August the Prime Minister announced that the Government would pardon the suspended workers if they signed a declaration admitting their quilt. Failure to sign would bring about instant dismissal. The WCOTP states that this requirement to sign under duress infringes both political and civil rights, especially in the case of the seven employees concerning whom the disciplinary board had ruled that there was no case to answer.
3. 135. The complainant also alleges that in 1976 an Industrial Relations Act was passed providing a machinery for negotiations on conditions of service of public employees which has not yet been implemented. It states that instead of this, the Government has unilaterally curtailed the vacation leave entitlement, has abolished a number of public holidays, has changed conditions of service and has unilaterally determined salaries at a level well below the demands of the unions.
4. 136. According to the complainant, a 1977 amendment to the above-mentioned Act gave the right to the Government to declare any grade of public service employees as working in an "essential service" and thus to restrict or prohibit the right to strike. It encloses a copy of the amended legislation, the schedule of which lists a number of offices which are required to be manned at all times far the continued provision of essential services to the community. These offices include the posts of, for example, resident medical superintendent, physician, child health officer, etc. It appears from section 10 of this amending legislation that the schedule to the Act may be altered, added to or otherwise amended by a resolution of the House of Representatives or by the Prime Minister by order in the Gazette provided that an order so made does not increase the total number of offices to more than 70.
5. 137. In addition, the WCOTP alleges that in 1981 legislation was enacted according to which public service employees are now precluded from seeking legal redress on any matter concerning their conditions of employment (an Act to amend further the Code of Organisation and Civil Procedure Act). This legislation also creates a "Working of the Law Court Commission" appointed by the Prime Minister with the function, among others, of supervising the workings of all courts of civil, commercial and criminal jurisdiction, including the constitutional Court, and of supervising the professional conduct of advocates and legal procurators. From an examination of the Act which is enclosed with the complainant's communication, it appears that section 743 of the principal law has been amended to include a new subsection 5 which reads as follows: "For the purposes of this section, and of any other provision of this and of any other law, service with the Government is a special relationship regulated by the legal provisions specifically applicable to it and by the terms and conditions from time to time established by the Government, and no law or provision thereof relating to conditions of employment or to contracts of service or of employment applies or ever heretofore applied to service with the Government except to the extent that such law provides otherwise".
6. 138. In conclusion, the WCOTP states that in 1982 a Foreign Interference Act was passed according to which no foreign activity can take place without the permission of the Government, such permission only being given to activities listed in the legislation such as cultural and educational activities. The complainant sees this legislation as a restriction on international solidarity between trade unions.

B. The Government's reply

1. 139. In its communication of 22 November 1982, the Government states that the allegations concerning the absence from work on 29 June are not justified. According to the Government, the disciplinary action taken refers to the offence of rank disobedience in defiance of authority because instructions had been given to all employees in the public service to report for work on 29 June 1982. The Government maintains that, contrary to what is stated by the MUT, this offence is more serious than ordinary absence from work and does not fall within the scope of section 20(2) of the Conditions of Employment (Regulation) Act of 1952.
2. 140. The Government states that it is not a question of refusal of "the right to a day off", but a political directive for stopping work for one day. As it was not a directive for industrial action, continues the Government, it was not protected by the provisions of the industrial Relations Act. In order to ensure the continuity of public services, vacation leave in respect of 29 June was curtailed and public service employees were specifically instructed to report for work as usual on that day. Those employees who failed to do so, without a valid reason, were subjected to disciplinary procedures which could lead to dismissal by virtue of the Public Service Commission (Disciplinary Procedures) Regulations of 1977. The Government explains that the employees concerned were in fact suspended from work and a start had been made on processing the various cases before the Public Service Commission Disciplinary Board. However, on 8 August, the Government decided to stop these disciplinary procedures for those employees who signed a declaration acknowledging their responsibility for the offence with which they were charged and who were prepared to give a written undertaking that they would not commit a similar offence in the future. It states that those employees who signed such declarations and gave such undertakings were taken back to work. The Government emphasises that no employee was asked to sign a declaration or give the written undertaking against his of her will and denies that employees were threatened with instant dismissal if they failed so to sign.
3. 141. The Government states that the complainant is misinformed as regards the cases of seven teachers in the public service who continued to be subjected to disciplinary procedures after they were found to be "not guilty" by the Public Service Disciplinary Board. It states that under the terms of the 1977 Regulations, disciplinary proceedings do not end before the Board, but the Board is required (under Regulation 17) to communicate its findings to the Public Service Commission. The final decision is then taken by the Prime Minister, acting on the recommendation of the Commission in accordance with article 113 of the Constitution of the Republic of Malta. The Government confirms that the Public Service Commission had made no recommendations regarding the disciplinary cases in question.
4. 142. As regards the other allegations, the Government states that the Joint Negotiating Council established under the Industrial Relations Act of 1976 has in fact been dealt with previously by the Committee on Freedom of Association (Case No. 949) as well as by the Committee of Experts on the Application of Conventions and Recommendations. It explains that the latest position is as follows: as the Joint Negotiating Council is a top negotiating body on which groups of unions are represented, and as the present law only recognises individual trade unions and not groups of unions, the unions have held discussions about the proposed establishment of a recognised body to represent them as a group; they did not however reach agreement, thus presenting the Government with a major difficulty in the setting up of the Council. In its annual report on Convention No. 87, the Government states that the question is being actively studied.
5. 143. As regards the alleged curtailment of vacation leave entitlement and the abolition of a number of public holidays, the Government states that when the number of public holidays was reduced, the minimum annual vacation leave entitlements of the great majority of government employees was raised to four working Weeks by appropriate amendments to the wage regulation orders.
6. 144. As regards the 1977 amendment to the industrial Relations Act, the Government states that the complainant's interpretation is incorrect. This legislation specifically lists those posts, the occupants of which are required to provide an essential service; these posts are few in number, of a senior nature and have to be manned at all times for the continued provision of essential services to the community.
7. 145. The Government states that the complainant is incorrect in asserting that the amendment to the Code of Organisation and Civil Procedures restricts the right of public service employees to seek legal redress on any matter concerning their conditions of employment. On the contrary, it explains that the procedure as amended helps to expedite the administration of justice and does not in any way diminish the right of public officers to seek legal redress on such matters.
8. 146. Finally, the Government states that the complainant has misinterpreted the Foreign Interference Act of 1982. It encloses a copy of the Act, section 2 of which defines "foreign activity" to mean anything done by, or sponsored, promoted or in any manner whatsoever assisted or encouraged by, any foreign person and includes in particular, .., the provision of money, equipment or other material or thing whatsoever, but does not include an activity which is purely commercial or industrial ... The Government explains that this Act prevents undue foreign political interference in the internal affairs of Malta, but is not meant to restrict international trade union solidarity. It points out that the Confederation of Trade Unions met with no restrictions when it invited the Executive Committee of the World Confederation of labour to hold a meeting in Malta during October 1982, one month after the entry into force of this Act.

C. The Committee's conclusions

1. 147. This case concerns allegations of anti-union reprisals taken against government employees after absences from work on 29 June 1982 and, more generally, the adoption of anti-union legislation.
2. 148. The Committee notes that, according to the complainant, disciplinary action was instituted against teachers, public employees and employees of parastatal organisations for having taken a day off or for having reported themselves ill on 29 June in response to a call for such action by an opposition political party. Without going into the question of the forced signature of declarations in lieu of disciplinary procedures, or even when such procedures had terminated, the Committee must first point out that the complainant does not claim that the absences from work on 29 June were connected with trade union activities, nor does it claim that only members of its affiliate were victimised. On the contrary, the complainant itself states that its affiliate and other trade unions did not support or oppose the political party's directive. The Committee notes, furthermore, that the Government explains in detail the way in which disciplinary procedures were instituted and emphasises the reinstatement of suspended public employees who signed, of their own free will, certain declarations. In view of the lack of evidence proving that such action was taken against trade unionists for trade union activities, the Committee considers that this aspect of the case does not call for further examination.
3. 149. As regards the allegations concerning the industrial Relations Act, 1976 and the 1977 amendments thereto, the Committee notes that it has already examined this question in the context of Case No. 949. It refers to its conclusions adopted in that case, in particular, that while the refusal to permit or encourage the participation of trade union organisations in the implementation of new legislation or regulations affecting their interests does not necessarily constitute an infringement of trade union rights, the principles of consultation and co-operation between public authorities and workers' organisations at the national level is one to which importance should be attached. The Committee would also recall its previous statement as regards the 1977 amendments, to the effect that the right to strike could be restricted or even prohibited in the civil service or in essential services in the strict sense of the term, i.e. services whose interruption would endanger the existence or well-being of the whole or part of the population. On this criterion it considers that the Schedule to the Act in question - as it stands - does not constitute an infringement of freedom of association.
4. 150. As regards the 1981 amendments to the code of Organisation and Civil Procedure Act, the Committee considers that the creation of a commission to regulate the professional conduct of lawyers does not violate the principles of freedom of association and, moreover, new section 743(5) providing that government employment shall be regulated by special provisions and by such laws as so provide does not in itself discriminate against public servants.
5. 151. The Committee is of the opinion that the Foreign Interference Act of 1982, in broadly defining "foreign activity", could be interpreted in such a manner as to restrict the freedom, guaranteed by Article 5 of Convention No. 87, ratified by Malta, to join and undertake activities with confederations of trade union organisations whether within' the country or without. However, in view of the Government's explanation that, in practice, the Act has not at all interfered in trade union affiliation or activities, the Committee does not intend to pursue this question.