Rapport définitif - Rapport No. 243, Mars 1986

1. 191. In a communication dated 9 May 1985, the World Confederation of Labour and the Confederation of Malta Trade Unions presented a complaint against the Government of Malta alleging violation of freedom of association and trade union rights. The Government replied on 24 May 1985 and submitted further information in a communication dated 8 July 1985.
2. 192. At its meeting in November 1985, the Committee decided to request additional information from the Government and to consider the case at its February 1986 Session. The information was received in a communication dated 17 December 1985, and is referred to below.
3. 193. Malta has ratified both 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 complainants' allegations

1. 194. The complaint concerns 31 worker-students who, it is alleged, were (1) suspended from their jobs with the Ministry of Works and Housing; and (2) had their pay withheld for having taken part in a one-day protest strike on 10 October 1984. (3) It is further alleged that improper practices were used in obliging the worker-students to sign a statement prepared unilaterally by the authorities in order to secure reinstatement.
2. 195. In explaining the background to the allegations, the CMTU refers to a dispute which had arisen between one of its affiliates, the Movement of United Teachers (MUT) and the Government concerning a reorganised salary structure which had been under discussion for three years: industrial action, involving the non-performance by MUT members of work falling outside their sphere of duties, had been taken by 90 per cent of the teachers at the direction of the MUT and had resulted in a lock-out by the Ministry of Education. After attempting unsuccessfully to persuade the Minister to lift the lock-out, the CMTU called on members of other affiliated unions to take part in a one-day protest strike on 10 October 1984 against the use of the lock-out.
3. 196. Among the 27,000 workers who are stated by the CMTU to have participated in the protest strike were the 31 worker-students in the Ministry of Works and Housing, who were precluded from reporting for work on the day following the strike and who had their pay withheld during the period of their absence, i.e. until they signed a Declaration (a copy of which dated 6 December 1984 and translated from Maltese is attached to the complaint) requiring them to: acknowledge that their participation in the industrial action of 10 October had not been due to any dispute with the employer and that the employer could not be subject to actions and directives of third parties which could involve stoppages and interruptions of their training, and that there must not be any interruptions other than for medical reasons; express regret for having participated in the action of 10 October and undertake not to interrupt their training again through industrial action; and, accordingly, requesting the lifting of the order of 11 October precluding them from reporting for work pending the receipt of further instructions. They were further required to declare that they were prepared to withdraw legal protests and that they would not claim payment for the period during which they had not been at work.
4. 197. The CMTU asserts that questions between an employer and worker-students concerning their employment are, in terms of Act No. XII amending the Education Act of 1974, to be determined under the Industrial Relations Act of 1976; and that, in addition to being in breach of Conventions Nos. 87 and 98, the action taken by the Government infringed section 18(4) of that Act, which provides, inter alia, that "an act done by a person in contemplation or furtherance of a trade dispute and in pursuance of a directive issued by a trade union ... shall not by itself entitle the employer to terminate the contract of employment of, or discriminate against, any person doing any such act as aforesaid and shall not constitute as a break in the service of such person".
5. 198. The CMTU alleges that the 31 worker-students were subjected to gross discrimination by being denied the opportunity to report for work and by having their pay withheld during the entire period of their absence (which, it claims, was not designated a suspension since this would have required the institution of disciplinary proceedings); that their participation in the protest strike of 10 October as directed by their trade union was legitimate, and protected by the legislation; that they were under psychological pressure to sign the Declaration as the Minister had stated that those who failed to sign would not be taken back into employment; that, as a result of signing the Declaration, they could no longer be said to be able to exercise freely their right to choose whether or not to abide by future trade union directives, and might find it difficult or dangerous to do so in practice. The CMTU points out, too, that no other worker-students in any other government department or in the private sector were required to sign an undertaking, nor were they precluded from returning to work. B. The Government's reply
6. 199. In its communication of 24 May 1985, the Government states that it does not accept that there has been an infringement of trade union rights in relation to the worker-students. It explains that the worker-student scheme is a voluntary one, involving alternate work and study phases; and that the sponser who engages such a worker has an obligation to provide both work and training, while a student who does not avail himself of both aspects by complying in full with the conditions prescribed under the scheme will prejudice his opportunity to qualify at the end of the course. It states further that worker-students are free to join any trade union of their own choice and to participate in its activities. 200. According to the Government, the issue in question is whether worker-students are entitled to take part in industrial action to which the sponsor is not a party. It points out in this respect that the amendment to the Education Act cited by the complainants refers specifically to "questions between an employer and a worker-student concerning his employment" (emphasis added), and that the issue which gave rise to industrial action by the CMTU did not concern the employment of these worker-students who, for their part, wished to give support to a trade union in a dispute with another employer. 201. The Government goes on to state that the decision to lock out the worker-students was taken by the sponsoring Ministry as a countermeasure to the industrial action taken by the worker-students, and that such a decision is protected by the Industrial Relations Act, 1976. Subsequently, in its communication of 8 July 1985, the Government submitted the text of a judgement of the Civil Court of Malta on 22 October 1984 in which the right to lock out was upheld following an action brought against the Minister of Education by the MUT and its President and General-Secretary. 202. Finally, the Government points out that it was in an attempt to put an end to the deadlock that the Ministry offered to lift the lock-out in respect of the 31 worker-students, and to take them back provided they signed the Declaration referred to above and that they withdrew the legal action which they had initiated. In an earlier communication, on a related matter, the Government had already indicated that all the worker-students had been taken back into the Ministry. 203. In its communication of 17 December 1985, the Government transmitted a copy of the contract applying to worker-students and of the document containing the general conditions which apply to the scheme under which they are employed. The Government stated further that students so employed were not deemed to be regular employees of the sponsoring organisation, as indicated in paragraph 3 of those conditions, the relevant part of which reads:
   • "Worker-students will be required to follow the work schedule of their Department at their place of work and the timetables of the University or Education Institution at which they are studying and will abide by the Regulations of the organisation in which they are working or studying but will in no way be deemed to be regular employees."

C. The Committee's conclusions

1. 204. The Committee notes that the complaint relates to action taken by the Ministry of Works and Housing concerning 31 "worker-students" whose status arises from a special type of employment contract. They responded to a directive from the Confederation of Malta Trade Unions to participate in a protest strike on 10 October 1984. The Committee observes that some confusion may have arisen as a result of their dual status as workers and students. 205. The Committee also notes that the action taken consisted, in the first place, of a lock-out by the Ministry concerned of the "worker-students"; that the power of the authorities to undertake such action was upheld by the Malta civil courts in a case brought by a trade union, and that this may be the subject of a further decision on appeal. In the circumstances, the Committee does not consider that this aspect of the case calls for further examination.
2. 206. The Committee must, however, express its concern at the other action taken, namely the requirement that the "worker-students" sign the Declaration described above before being reinstated. In this regard, the Committee notes that a period of approximately two months elapsed between the date of the protest strike in which the "worker-students" participated and the date of the Declaration, during which the persons concerned were not paid. It notes further that the Declaration required signatories to forego payment for the period when they had not been at work, and to abandon legal action which they might be undertaking. The Committee draws the attention of the Government to the terms of paragraph 2(b) of Article 1 of Convention No. 98, which enjoins protection against acts of anti-union discrimination, and refers specifically to protection against acts calculated to cause the dismissal of or otherwise prejudice a worker by reason of union membership or because of participation in union activities. It trusts that appropriate measures will be taken to compensate the "worker-students" for the loss incurred by them. 207. With regard to the undertakings which signatories to the Declaration were required to give limiting the circumstances in which work stoppages would be permissible, the Committee is of the view that these infringe the principle of freedom of association which it has repeatedly emphasised, namely that the right to strike is one of the essential means through which workers and their organisations may promote and defend their economic and social interests. (See 236th Report, Case No. 1066 (Romania), para. 122, Case No. 1253 (Morocco), para. 215, Case No. 1266 (Upper Volta), para. 574, Cases Nos. 1277 and 1288 (Dominican Republic), para. 682.) The Committee would in this regard also draw the attention of the Government to the provisions of Article 3 of Convention No. 87, in terms of which "workers' and employers' organisations have the right to ... organise their administration and activities and to formulate their programmes and that the public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof", and expresses the hope that it will give full effect to this provision in relation to the trade union rights of the "worker-students".