Informe provisional - Informe núm. 243, Marzo 1986

1. 601. In communications dated 2 October and 7 October 1985 respectively, complaints of violation of freedom of association were submitted by the International Federation of Free Teachers' Unions (IFFTU) and the World Confederation of Organisations of the Teaching Profession (WCOTP), on behalf of their affiliate, the Malta Union of Teachers (MUT), against the Government of Malta. Additional information was supplied by the WCOTP in communications dated 8 October 1985, 15 and 22 January 1986 and in a communication from the MUT dated 15 January 1986. The Government replied in two communications dated 30 January 1986, one of which incorporated a reference to a communication dated 8 July 1985 in connection with another case before the Committee (No. 1335), and the other to another communication (of 22 April 1985) containing information relating to an observation which had been made by the Committee of Experts on the application of Conventions and Recommendations in its 1985 Report.
2. 602. 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). It has not ratified the Labour Relations (Public Service) Convention, 1978 (No.151).

A. The complainants' allegations 603. In their communications of 2 and 7 October 1985, the IFFTU and the WCOTP refer to the background to the industrial action which the general conference of the MUT in May 1984 decided to take, and to 13 directives which had been issued in this connection by that union on 19 September of the same year at a rally of teachers which it had called. These directives (the text of which was annexed to the communication) amounted to a work-to-rule whereby teachers were instructed not to carry out duties other than teaching duties or which were not stipulated in teachers' contracts; and it is stated that this form of industrial action was chosen so that pressure was put on the Government in a manner which disrupted the schooling of children as little as possible and so that they could be spared the adverse effects of the dispute.

1. 604. It is further stated that, at a meeting with the Minister of Education on 21 September 1984, union officials who were government school teachers were asked to sign a declaration that they would not obey the union's directives and, when they refused to do so, they were informed in another document that they were locked out without pay so long as they observed the MUT directive. (The texts of both of these documents were also submitted with the complaint.) The Minister of Education is said to have presented each teacher individually with an ultimatum either to sign the declaration or to be locked out; and it is claimed that this measure constituted coercion, under threat of punitive suspension, of individual teachers who did not give in to governmental pressure.
2. 605. The complainants state that the response of the union to the threat of a lock-out was the announcement at a rally of teachers on 23 September of a two-day strike, which was observed by over 90 per cent of the union's members and even by non-members of the union. The strike was extended every two or three days by the union over a period of seven weeks; it also received the support of the Confederation of Trade Unions (CMTU) which declared a one-day strike in solidarity with the MUT on 10 October 1984.
3. 606. The complainants allege that, during the course of the strike, the Minister insisted that teachers would not be allowed back at schools until they signed a declaration that they would continue to carry out their duties; and that a campaign was mounted by the Government against the teachers after the MUT had issued its directives. Parents were told that the teachers were "waging war against their children", volunteers were recruited through the use of government media to replace teachers and these volunteers were promised financial rewards.
4. 607. In a communication dated 8 October, the WCOTP invites attention to information received from the MUT stating that on the evening of 5 October the nine teachers who had not reported for work on Gozo island were forcibly taken to the Government Hospital by amubulance for medical examination, some being asked to stay overnight and others to return on the morning of 7 October. Six of the teachers had already been on extended sick leave with medical certificates from their doctors and had asked to be retired from service on medical grounds. The MUT stated that it had protested against this illegal and arbitrary arrest.
5. 608. On 10 November 1984, the MUT announced that, following communications with the Prime Minister, it was withdrawing the directives it had issued and that it was calling off the strike as it was conscious of the deleterious effects these measures were having on schoolchildren. It was also announced at the same time that the Minister of Education was to withdraw all claims for any form of declaration from teachers.
6. 609. The complainants allege that, on the following day (11 November 1984), the Minister of Education announced in a speech (a report of which is annexed to the complaint) that none of the teachers on strike, except those deemed irreplaceable, would be allowed to resume teaching in the same schools as before the strike; and that this was being done to protect them against the wrath of the parents.
7. 610. According to the complainants, MUT officials pointed out at an urgent meeting with the Minister that transferring teachers to other schools was a punitive measure directed at workers who had exercised their right to follow a legitimate trade union directive, and also violated section 18(4) of the Industrial Relations Act of Malta; they went on to state that the attitude of the parents had been engendered by the systematic campaign conducted by the Minister against the teachers during the seven weeks of the strike.
8. 611. The complainants state that the transfer of over 1,400 teachers to different schools entailed severe hardship involving, inter alia, the need to travel long distances (including travel between different islands of Malta), being separated from their families and having to teach subjects in which they were not trained.
9. 612. In their communications of 15 and 22 January, the WCOTP and the MUT provide information concerning the award of medals by the Government to teachers who did not participate in the strike.
10. 613. Other forms of victimisation are alleged to have taken place, including the forcible bringing of teachers to schools during the course of the strike by pro-government thugs and the receipt by striking teachers of threatening telephone calls.
11. 614. Reference is also made by the complainants to the victimisation of worker-students (which is the subject of Case No. 1335).
12. 615. In addition, it is alleged that inadequate provision is made for the protection of union premises. The complainants refer to an incident which occurred on 25 September 1984 when thugs broke into and ransacked the MUT headquarters and that a few days later an attempt was made to set the headquarters on fire. It is further stated that on 5 November 1984 a bomb exploded outside the residence of close relatives of the MUT, causing considerable damage. The complainants point out that, before these incidents occurred, the MUT had requested round-the-clock police protection, which was refused until 4 October; they allege that none of these incidents was investigated sufficiently, and that no proceedings were instituted in regard to them.
13. 616. In its complaint, the WCOTP alleges in addition that the Government evaded negotiations in the period from January 1983 through 1985 by using a salary freeze of unlimited duration which thus limited free collective bargaining; it was this freeze, announced on 21 December 1982, which had put an end to negotiations and which had given rise to the directives issued by the MUT.
14. 617. The WCOTP goes on to refer to the failure to establish the joint negotiating council for which provision had been made in the Industrial Relations Act No. XXX, 1976, which it states is a basic problem in the present conflict. This failure had in the complainant's view deprived the MUT of speedy recourse to impartial machinery for conflict resolution when disagreement was registered in negotiations. The complainant expresses the opinion that the fact that one of the trade union centres (the General Workers' Union) refuses to come to an agreement with the other trade union centre (the Confederation of Trade Unions) concerning the joint negotiating council does not excuse the Government for not setting up this council, but on the contrary constitutes favouritism vis-à-vis one union.
15. 618. The last allegation of the WCOTP relates to threats which have been made to declare education an essential service and thus prohibit industrial action by teachers, most recently in a speech by the Prime Minister and Minister of Education on 20 February 1985.

B. The reply of the Government 619. In its communications of 30 January, the Government refers to the judgement of the Civil Court of Malta which had been sent with its reply to the allegations in Case No. 1335; and goes on to deal with other aspects of the complainants' allegations.

1. 620. The judgement was given in an action brought by the President of the MUT personally (i.e. as one of the teachers affected) and in his official capacity, together with the Secretary General of the Union, against the Minister of Education. The Court held in a judgement of some 18 pages that the Union had no legal interest which would entitle it to appear as a litigant; the right to lock out had been properly exercised under the law of Malta; and that there had not been discrimination in terms of section 18(4) of the Industrial Relations Act, as the lock-out was a legitimate act of retaliation by the Government against industrial action taken by the teachers and that the prohibition against discrimination in the Act referred only to measures taken after, not during, the course of action in pursuance of directives received from a trade union. It is stated in the Government's communication of 8 July 1985 that the Court took into consideration the harmful effect of the Union's directives, one by one and in their totality, on the running of the schools and the jeopardy to the interests and safety of schoolchildren.
2. 621. On the subject of the alleged punitive transfer of teachers in the public service, the Government states its view that the complaint is not justified for the following reasons: a) like other members of the public service, teachers are liable to transfer according to the exigencies of the service; b)the circumstances prevailing in November 1984 as a result of the actions initiated by the MUT meant that a number of transfers were necessary in the public interest and in the interests of the teachers themselves; c) the Department of Education had received reports of threats to teachers after there had been notice that they were to resume their duties, and immediate action was taken to ensure that those concerned were not molested; d)the Department had in the summer of 1985 invited applications from teachers who wished to be transferred, and had attempted so far as possible to meet the requests of the 454 (out of 3,000 in the public service) who had responded, a substantial number of whom had indicated that they did not wish to return to their previous schools. The Government states that this indicates that the vast majority of teachers welcomed the transfers; e)a number of teachers who had been transferred had been posted back to their previous schools, either at their request or in view of the exigencies of the service.
3. 622. The Government does not accept that there was any infringement of trade union rights in respect of the allegations concerning the treatment of volunteers or teachers who worked during the strike. It states that, well after the end of the strike, it had showed its appreciation to those who had done their duty or volunteered without any promise of advantage or payment during a strike which, it says, was motivated by reasons other than an industrial dispute and which placed schoolchildren at risk.
4. 623. The Government states that it regards as puerile and irrelevant the argument in the complaint linking allegations regarding the evasion of effective negotiations to the wage freeze and the non-establishement of the Joint Negotiating Council. It expresses the view that neither of these had precluded negotiations taking place between the Department of Education and the MUT over a period of three-and-a-half years: the negotiations had been inconclusive for reasons other than those put forward by the MUT, and the wage and price freeze had been accepted by the representatives of the majority of the employers and workers.
5. 624. As regards the Joint Negotiating Council, the Government referred to a letter of 22 April 1985 in which it had provided information for consideration by the Committee of Experts on the Application of Conventions and Recommendations, to the effect that it was in the interests of all unions representing employees in the various sectors of the public service - including the CMTU and the General Workers Union - to set up a common representative body which would nominate members to sit on the Joint Negotiating Council and so ensure representation of the interests of all employees by a common body rather than competing organisations.
6. 625. Finally, the Government states that the allegations concerning the lack of protection of trade union premises are baseless as full protection had been given to the MUT premises when this was necessary; police protection had been provided for the MUT president and other officials at the request of the Department of Education; and all incidents connected with the MUT strike had been investigated by the police according to the same procedures adopted in similar cases.

C. The Committee's conclusions 626. The Committee notes that a number of the issues raised in this case are being dealt with elsewhere. One of these, the question of the treatment of worker-students, is the subject of another case (No. 1335) before the Committee (see paragraphs 191 to 208 of the present report).

1. 627. The Committee is aware that the question of the failure to establish a negotiating council in terms of the Industrial Relations Act has been considered by the Committee of Experts on the Application of Conventions and Recommendations on a number of occasions. Most recently, in an observation made in relation to Convention No. 98, that Committee reached the conclusion in its 1985 Report that public servants had no possibility of negotiating their conditions of employment and pay as they should have in terms of Article 4 of the Convention. It would seem to the Committee that, in the context of the present case, the absence of such joint negotiating machinery may have been one of the factors which contributed to the dispute between the MUT and the Department of Education; it accordingly urges the Government to take whatever steps it can to bring about the establishment of such negotiating machinery. This aspect of the case is also drawn to the attention of the Committee of Experts on the Application of Conventions and Recommendations.
2. 628. With regard to the possible effect of the wage freeze on opportunities for collective bargaining, the Committee takes note of the Government's statement that negotiations had in fact taken place during the period in question but that they had broken down for reasons other than those given by the complainants without indicating what these were. The Committee accordingly requests the Government to provide it with additional information on this aspect of the matter so that it can arrive at a conclusion thereon in full possession of all the relevant facts.
3. 629. The Committee has in addition noted that certain aspects of the action taken by the MUT and the Government during the course of the dispute have been the subject of legal proceedings before the civil courts of Malta. In the circumstances, it does not consider that these matters require further examination, but it draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the judgement of the court in that case.
4. 630. As regards other aspects of the action taken during the course of the strike, the Committee notes that the Government has not responded to allegations relating to the compulsory subjection of teachers on Gozo island to medical examination, the forcible bringing of teachers to schools or the threats made against teachers while on strike; it accordingly requests the Government to provide it with information on these questions.
5. 631. As regards the allegation that punitive action was taken after the end of the strike through the compulsory transfer of 1,400 teachers, the Committee has taken note of the explanation provided by the Government. It would seem from this that the number of teachers who actually requested a transfer was considerably fewer than the numbers who were alleged to have been transferred, and that unspecified reasons of public policy were among the reasons for the transfer. The Committee notes with interest the Government's statement that an unspecified number of those teachers who had been transferred have now been returned to their previous posts, and expresses the hope that the Government will be able to take further measures along these lines in respect of all the others who have indicated that they wish to be treated similarly, and to keep it informed of the steps taken. In this respect, the Committee draws the attention of the Government to the provision in Article 1 of Convention No. 98, ratified by Malta, that workers shall enjoy adequate protection against acts of anti-union discrimination in respect of their employment, and to the generally accepted and recognised principle that no person should be prejudiced in his employment by reason of his trade union membership or activities. (See 126th Report of the Committee, Case No. 638 (Lesotho), para. 26, and 187th Report, Case No. 857 (UK/Antigua), para. 229.) The Committee would also recall that the right to strike is one of the essential means through which workers and their organisations may promote and defend the economic and social interests of their members.
6. 632. With regard to the allegations concerning the explosions which took place at the homes of relatives of the MUT leader and the setting on fire of the Union's premises, the Committee stresses its conviction that trade union rights can only be exercised in a climate that is free from violence, pressure or threats of any kind against trade unionists; it is for governments to ensure that this principle is respected (234th Report, Case No. 1237 (Brazil), para. 213). It draws the attention of the Government to the principle that a climate of violence, in which attacks are made against trade union premises and property, may constitute serious interference with the exercise of trade union rights; such situations call for severe measures to be taken by the authorities, and in particular the arraignment of those presumed to be responsible before an independent judicial authority (176th Report, Case No. 823 (Chile), para. 64, and 194th Report, Case No. 895 (Morocco), para. 132). It calls on the Government to give effect to these principles to the fullest possible extent and to keep it informed of measures taken to bring to trial any persons suspected of being responsible for their breach in relation to the events referred to in this case.