Rapport définitif - Rapport No. 158, Novembre 1976

1. 129. This case was examined by the Committee at its session in May 1,975 when a report containing the Committee's definitive conclusions was submitted to the Governing Body (contained in paragraphs 6-24 of the 152nd Report of the Committee, which was approved by tie Governing Body at its 197th Session in June 1975).
2. 130. 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. 131. The Committee recalls that this case essentially concerned the disciplinary action which had been taken against 27 officers of the Department of Public Works consequent upon their failure to observe the terms of a collective agreement which had been concluded between the Government and the Confederation of Malta Trade Unions on 31 December 1973. According to the complainants, the Government had failed to negotiate the implementation of this agreement with the Malta Government Professional Officers' Association (MGPOA) and the taking of disciplinary proceedings against 27 of its members constituted an act of anti-union discrimination against the MGPOA. In addition, the complainants alleged that, in taking such action against the officers 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. 132. The Committee had noted 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 noted 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 appeared 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 appeared 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 seemed to have been again discussed and an opportunity given to the officers in question to comply with the agreed timetable. At each meeting with the Confederation the MGPOA appeared to have been represented by its President.
3. 133. Having examined the information at its disposal, the Committee considered that it had not been established that the Government at any time failed to negotiate the terms of the agreement or the implementation thereof. Consequently, the Committee took the view 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 appeared clearly to have been fully negotiated and accepted by the Confederation as a whole, did not constitute an infringement of trade union rights. In the view of the Committee the questions raised in this case were 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. The Committee pointed out that, in similar situations in the past, it considered 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.
4. 134. In these circumstances, and having regard to the case as a whole, the Committee recommended the Governing Body to decide that the case called for no further examination.
5. 135. In a communication dated 29 September 1975 the complainants transmitted observations on the conclusions reached by the Committee and additional information and documentation on the basis of which they requested a re-examination of the case.
6. 136. The Committee, at its session in November 1975, noting that the additional information communicated by the complainants contained certain elements which were not available to it when it previously examined the case, decided to transmit this information to the Government for its observations.
7. 137. The Government, in a communication dated 5 April 1976, sent its observations on the latest information communicated by the complainants.
   • Additional Information Communicated by the Complainants
8. 138. The complainants emphatically reiterate that there was no agreement between the Government and the Confederation with regard to the actual timetable which had to be followed by professional officers, nor had it been agreed that any particular grade or grades were considered to be connected with production. In support of this statement the complainants produce a letter dated 9 September 1975, addressed to them by the General Secretary of the Confederation of Malta Trade Unions, in which it is stated that "this Confederation did not enter into any agreement on the actual timetable of any of the multifarious non-industrial grades employed by the Government. It should be noted that the agreement reached with the Government covered general principles and broad outlines and the details of their implementation were to be discussed between the Government and the individual unions concerned."
9. 139. According to the complainants, the Government had tried to convey the impression that the question of the note of interpretation concerning which officers were considered to be connected with production had been settled. This, according to the complainants, is totally incorrect. The note on interpretation was so adjusted as to place individual unions in a better bargaining position during the negotiations regarding implementation of the agreement. According to the complainants, such negotiations were held with a number of individual unions but none with the MGPOA. In addition, the complainants contend that the Government, in emphasising the productivity element of the Public works Department, did not mention the Water Works Department, the Telephone Department and the Malta Electricity Hoard which, according to the complainants, cannot be considered as anything but government production, and in which it was not considered necessary for engineers to work hours coinciding with the industrial timetable.
10. 140. With regard to the meeting with the Prime minister on 24 December 1973, the complainants point out that this was convened to discuss a wage increase for public service employees. Reference was made during this meeting to the introduction of the 40-hour, 5-day week, but, state the complainants, it is categorically denied that specific reference was made to the Public Works Department or Public Works Engineers. In support of this contention, the complainants supply a copy of the minutes of the said meeting, which they state were drawn up by the official side. The complainants also state that the Government had omitted to state that the CMTU delegation, quite unequivocally, had opposed the Prime Minister's views on the matter.
11. 141. The meeting of 24 December 1973, add the complainants, did not settle or clarify any points in connection with the implementation of the agreement. As is apparent from the minutes of this meeting, the Prime Minister had expressed the view that a new timetable would be implemented on the basis of entire departments rather than on the basis of different timetables for different sections in departments. In fact, state the complainants, following discussions with individual unions (excluding the MGPOA) subsequent to the 31 December 1973 agreement but prior to its implementation, the 5-day week had been introduced on the basis of different timetables for different sections in departments. Even in the Public Works Department itself, add the complainants, by far the majority of non-industrial employees in different sections of the department had continued to observe the non-industrial timetable.
12. 142. The complainants allege that the Government had stated that the Prime Minister had explained to the CMTU delegation at the meeting on 24 December 1973 "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 industrials in order to set the day's work." No such explanation was given, contend the complainants, as a perusal of the minutes of that meeting will confirm. Moreover, continued the complainants, it is not the practice in the building industry in Malta for architects and engineers to start work at the same time as industrial employees in order to set the day's work. This is confirmed by the Malta Chamber of Architects and Engineers in a letter dated 1 August 1975 addressed to the MGPOA and submitted by the complainants as additional evidence.
13. 143. The complainants also supply the minutes (which are said to have been prepared by the official side) of the meeting between the CMTU and the Principal Assistant Secretary (Establishments) of the Office of the Prime minister held on 17 January 1974. The complainants contend that from these minutes it is clear that the CMTU delegation did not in any form signify its acceptance that any grade or grades would have to observe the industrial timetable. In fact, when the question was raised the delegates had remarked that they had maintained that the industrial timetable should only apply to that staff who directly supervised industrial workers. In this connection, the complainants point out that industrial employees do not fall under the supervision of engineers but are directly supervised by foremen, clerks of works, and in some cases by engineer assistants. It, therefore clearly results, state the complainants, that the Government's statement - that when this matter was raised at the meeting on 17 January 1974 there was no indication from the CMTU delegation that any instructions in this regard would not be acceptable to them, or that any further consultations would be required - is completely unfounded.
14. 144. The complainants point out that the meeting of 17 January 1974, as well as other meetings held subsequent to the 31 December 1973 agreement with a number of individual unions, substantiate the fact that the timetable and other details concerning the introduction of the 5-day week had to be, and were in fact discussed with the unions after the 31 December 1973 agreement and prior to its implementation. No such meetings were however held with the MGPOA; one meeting was held after the implementation of the 5-day week when a trade dispute already existed and the professional officers concerned were under a directive by the MGPOA to continue to observe the non-industrial timetable as a mild form of industrial action, notice of which had already been given.
15. 145. This meeting, state the complainants, ended in disagreement in view of the fact that the official side refused to discuss the meaning of the word "production" in the context of the professional services expected from professional employees, and adopted an intransigent attitude.
16. 146. The complainants add that it is important to mention that while the Government instituted disciplinary proceedings against those professional officers who had obeyed their union's directive to continue to observe the non-industrial timetable, some engineers in the Public Works Department itself who had dissociated themselves from the union were allowed by the Government to continue to work according to the non-industrial timetable. According to the complainants, this constituted discrimination between employees and evidence that the Government's strong resistance to the MGPOA's legitimate action was only intended to break that union.
17. 147. The complainants point out, in addition, that the CMTU delegation represented exclusively the Confederation, and none of the members thereof represented any affiliated union. This fact is clearly explained in a letter, produced by the complainants, dated 9 September 1975, addressed by the CMTU to the complainants.
18. 148. The complainants stress that it is indisputable that agreement was never at any stage reached on the actual timetable to be followed by professional officers. It is therefore obvious, add the complainants, that disagreement constitutes an industrial dispute, and in the absence of recourse to conciliation and arbitration procedures for public service employees in Malta, the only remaining alternative for the union was industrial action.
    • Reply of the Government
19. 149. In its communication dated 5 April 1976, the Government expresses the view that it is not possible to accept any other conclusions than those already reached by the Committee and the Governing Body concerning this case.
20. 150. First, the Government refers to the denial made by the complainants that, in the course of the meeting (on 24 December 1573) with the Prime Minister, any specific reference was made to the Public Works Department or Public Works engineers regarding the introduction of the 40-hour, 5-day week and adoption of the industrial timetable. In this connection, the Government states that, in his letter dated 9 September 1975 to the Secretary General of the European Organisation of Public Service Employees, written at the request of the Malta Government Employees Union (which was supplied by the complainants), the General Secretary of the Confederation of Malta Trade Unions has stated quite clearly (when referring to the meeting of 24 December 1973) that the Prime Minister "remarked that the Government would expect civil engineers to work industrial hours because they were considered to be connected with production". It is pertinent to add, continues the Government, that the overwhelming majority of civil engineers in the public service in Malta are appointed in the Public Works Department and the Prime Minister's reference to civil engineers could not possibly have been, and was not, understood as anything but Public Works Department engineers. The fact that the Confederation delegates expressed a contrary view is immaterial to the point at issue; what is relevant to this particular point is the correctness of the statement made by the Government (as has been confirmed by the Confederation of Malta Trade Unions itself) and the allegation that the Government has "grossly misrepresented the facts to suit its end" is totally unfounded.
21. 151. The Government refers to the allegation made by the complainants that no mention was made by the Government of the fact that the working timetable of engineers in the Water Works and Telephones Departments and the Malta Electricity Board was not made to coincide with the industrial timetable. In this connection, the Government points out that the duties devolving on the engineers in the above-mentioned departments are totally different from those devolving on engineers in the Public Works Department, which are architectural and structural in nature. The Government, in addition, submits that the operation of different timetables in different departments is a matter which is consonant with the particular requirements of the departments concerned and, if anything, goes to prove that there was no indiscriminate application of the industrial timetable for all engineers (the great majority of whom are members of the same union) and, far less, any attempt to discriminate and break the Malta Government Professional Officers' Association.
22. 152. The Government points out that the unions have stated that "industrial employees do not fall under the supervision of engineers but are directly supervised by foremen of works, clerks of works and in some cases engineer assistants". In this connection the Government states that engineers must necessarily assume overall responsibility for all staff, industrial and non-industrial, working on projects under their charge.
23. 153. The Government also states that it has already pointed out that there is no mention of supervision of employees but rather supervision of operations and works. The Government had no intention, nor was it in its interest, to downgrade engineers to the level of supervisory foremen. Indeed, adds the Government, the required supervision was directly related and limited to the progress of works and operations and hence the very direct connection which public works engineers have with production.
24. 154. With regard to the complainants' allegation that the Government has violated the right to strike of public service employees, the Government submits that when the officers concerned decided to report for work at 7.45 in the morning instead of 6.45 as instructed (and local conditions have to be kept in mind) their action cannot be interpreted as legitimate industrial action, but rather as a flagrant and continuing disregard of lawful orders which could not be tolerated indefinitely. Had the Union decided, for example, to call out its members on strike, either limited - as in fact it did on 24 October 1974 - or indefinite, or taken any other recognised industrial action, such as go-slow or work-to-rule, the matter would have been completely different. But the employees concerned could not conceivably disobey the orders they were given and, at the same time, consider themselves as complying with their union's directive. Indeed, the question of a strike was so little in evidence that, during the course of their disciplinary suspension, the officers concerned were paid, and they accepted, half salary in accordance with the provisions of the regulations. Furthermore, when mediation efforts were being made with a view to settling the matter outside the Disciplinary Board, the MGPOA insisted on a total refund of all salaries withheld during suspension.
25. 155. As regards the complainants' contention that the CMTU delegation represented exclusively the Confederation and that none of the members represented any affiliated union, the Government states that it can only repeat that the President of the MGPOA formed part of the CMTU delegation during the negotiations with the Government, and that the MGPOA could not possibly, therefore, have been unaware of what had happened with the CMTU.
26. 156. With regard to the references made by the complainants to minutes prepared by the official side, the Government explains that minutes are prepared immediately after meetings but these cannot be expected to be an exhaustive point by point narrative.

B. B. The Committee's conclusions

• Conclusions of the Committee
  157. 157 The Committee has examined the additional information transmitted to it by the complainants as well as the replies thereto furnished by the Government. From all the information at its disposal, the Committee takes the view that the complainants have not established that there was any failure on the part of the Government to negotiate the terms of the agreement concerning a 40-hour, five-day week, in so far as it specifically concerned officers connected with production, or the implementation of this agreement. The Committee attaches importance to the fact that the agreement which was signed on 31 December 1973 imposes the industrial timetable on all officers connected with production. From the information available concerning the meetings which took place, particularly on 24 December 1973 and 17 January 1974, between the Government and the Confederation (of which the President of the MGPOA is President) it would appear that the understanding of the Government that the industrial timetable should be observed by engineers in the Public Works Department was made clear to all the participants. The Committee considers, moreover, that any dispute over questions of interpretation of a collective agreement is a matter for negotiation or arbitration and that whether one of the parties adopts a conciliatory attitude or an intransigent attitude with respect to the demands of the other party is also a matter for negotiation between the parties themselves in accordance with the law of the country concerned.
  158. 158 As for the disciplinary proceedings instituted against the officers who failed to comply with the new timetable, the Committee can only refer to the conclusions which it previously reached on this aspect of the case.