Rapport intérimaire - Rapport No. 286, Mars 1993

1. 576. The Confederation of Malta Trade Unions (CMTU) presented this complaint against the Government in a letter dated 2 March 1992. The Government sent its observations in a communication dated 24 June 1992.
2. 577. Malta has ratified the Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 578. In its letter of 2 March 1992, the CMTU claims that the denial of overtime at the Malta Drydocks to non-General Workers' Union (GWU) members constitutes a breach of Conventions Nos. 87 and 98. The workers in question are members of the Union Haddiema Maghqudin (UHM) which is affiliated to the CMTU. It explains that Malta Drydocks has been worker self-managed since 1973; its affairs are conducted by a council elected every three years from and by the workers. Although autonomous in conducting its affairs, successive governments have extended financial support to it over the years.
2. 579. At a press conference on 17 January 1990, the Chairman of the Drydocks Council, Mr. Sammy Meilaq, presented a report on the Drydocks' progress and answered questions, in particular one relating to workers' democracy in relation to employees who were not being given overtime. He stated that the majority of workers were members of the GWU and that the majority protested at the minority being given overtime; the Council dared not risk a ban on overtime by allowing a few minority workers to work overtime as this would be disastrous for the dockyard. On 22 March 1990, the CMTU wrote to the Chairman about the overtime situation, pointing out that "discrimination, against whomsoever it is committed, is anti-trade union in the fullest sense of the word. We do not accept that the boycotting of workers by other workers for whatever reason can justify the nonchalant attitude by management, more so in an enterprise which is self-managed by the workers." On 9 May the Chairman replied that the vast majority of the labour force belonged to the GWU and refused to work overtime alongside non-GWU members, and that various attempts were being made to change this situation. The CMTU copied this correspondence to the Prime Minister and the Minister for Economic Affairs, and the former subsequently made reference to the need for Malta Drydocks to observe fundamental rights including non-discrimination in a speech. The General Secretary of the GWU took up the Prime Minister's remarks in an address to Labour Party supporters and denied that many drydocks workers were not given overtime because they were not GWU members.
3. 580. On 15 September 1991 the Youth Section of the CMTU held a symbolic protest in front of the dockyards. To try and intimidate the protesters, several posters had been hung on the drydocks boundary wall with phrases such as "Who is not in our union has no right to work overtime with us". Among the hecklers shouting insults at the protesters were members of the Metalworkers' Section of the GWU. The declaration read out at the end of the protest called on the Government to force the Malta Dyrdocks Council to put a stop to discrimination against non-GWU members. The Chairman of the Council stated the next day that the majority must be ready to tolerate the minority; otherwise the minority must accept to be with the majority in everything else, including union membership.
4. 581. The complainant states that some drydocks workers who feel that they should not belong to the GWU are still suffering discrimination and refused overtime. It considers that it is not the majority of GWU members who are not willing to work overtime with non-GWU members, but a handful of thugs who are poisoning the working environment. The CMTU alleges that there is also covert pressure on people to belong to a union not of their choice. While it cannot accept that the management and the GWU are helpless in controlling the situation, it believes that the ultimate responsibility for ending the discrimination rests with the Government.

B. The Government's reply

1. 582. In its letter of 24 June 1992, the Government states that the case as submitted by the CMTU is basically correct and it does not dispute the facts as presented. It has done its utmost from the start of the dispute to prevail on the Drydocks Council and the GWU to conform to the Maltese Constitution with regard to rights of freedom of expression and association and to observe the obligations of ILO Conventions. The Council has taken the stand that it does not discriminate in the allocation of overtime. It claims that action in this matter was taken by the workers themselves. It considers the issue as being one concerning the union and not the management. Conversely, the GWU claims that this is a management problem and not a union one, since the union has given no directives in this regard. The Government found itself in a no-win situation. Both the Council and the GWU claimed that they did not adopt policies of discrimination based on union membership. None the less, it has been alleged that GWU member workers refused to perform overtime alongside non-GWU members.
2. 583. The Government, while bringing all possible pressure to bear on the Council and the GWU, has exercised prudence and sought to convince the parties concerned to honour their legal and moral obligations with regard to freedom of expression and association. It has recently advised the parties that unless an equitable solution is found it can no longer tolerate a situation in breach of Malta's Constitution and of ILO Conventions to which it is signatory, and would have to take appropriate action.
3. 584. Meanwhile, a number of workers who are being discriminated against have taken their case to court. In adddition, following the election in February 1992, in which the Party in Government was returned to office, discussions have resumed between the representatives of the Government and of the Drydocks Council and there are reasonable hopes that the matter can be settled out of Court. The Government undertakes to keep the Committee informed of developments and hopefully be able to advise of an early settlement of this dispute.

C. The Committee's conclusions

1. 585. In this case the complainant alleges that the Government has infringed its obligation to prevent anti-union discrimination under Convention No. 98 by failing to settle an overtime dispute between a union affiliated to the complainant and a second union. The Committee notes that the Government does not dispute the facts but stresses that it has done its utmost to resolve the dispute at the Malta Drydocks and has reasonable hopes for an early settlement now that talks are under way with the employer.
2. 586. The Committee has in past cases declined to examine allegations involving inter-union disputes. A complaint against another organization, if couched in sufficiently precise terms to be capable of examination on its merits, may nevertheless bring the government of the country concerned into question - for example, if the acts of the organization complained against are wrongfully supported by the government or are of a nature which the government is bound to prevent by virtue of having ratified an international labour Convention (Digest, para. 667).
3. 587. On the facts before it, it appears to the Committee that the Government is under a duty to intervene in the Malta Drydocks dispute since the employer - the worker-run Drydocks Council - has allowed overtime to members of one union and refused it to members of another. When questioned by the Government on the matter, the employer claimed that this was a union affair and that it had no policies of discrimination based on union membership; yet the facts evidence an employer preference for the GWU to the detriment of the CMTU affiliate.
4. 588. Furthermore, the Committee notes that, according to the complaint, members of its affiliated union who have suffered discrimination in their working conditions because of their union affiliation are seeking redress through the courts. The Committee accordingly asks the Government to supply details of these proceedings in particular information on their outcome and the effect given to the court decisions by the employer.
5. 589. It also asks the Government for information on progress in the talks currently under way with the employer over the question of non-discriminatory apportionment of overtime which, according to the Government's letter of 24 June 1992, was likely to be resolved at an early date.