Rapport définitif - Rapport No. 321, Juin 2000

1. 252. The International Confederation of Free Trade Unions (ICFTU) and the International Transport Workers' Federation (ITF) submitted a complaint of violations of freedom of association in a communication dated 21 January 2000. The International Metalworkers' Federation (IMF) also submitted information in respect of the allegations raised by a communication dated 16 March 2000.
2. 253. The Government furnished its observations in communications dated 21March and 11 April 2000.
3. 254. Malta has ratified the Freedom of Association and Protection of the Righ to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainants' allegations

1. 255. In a communication dated 21 January 2000, the International Confederation of Free Trade Unions (ICFTU) and the International Transport Workers' Federation (ITF) submitted a complaint concerning a recognition dispute at Malta International Airport (MIA), a company wholly owned by the Government of Malta. According to the complainants, despite repeated requests for a ballot by the General Workers' Union (GWU), a national trade union centre which has a majority of trade union members at the MIA, MIA management has in effect refused to agree that a ballot should be held.
2. 256. A subsequent strike over this issue was organized by the GWU at the airport on 20 August 1999, but was broken up by army personnel and the police. The latter violently ejected around 80 strikers, arrested 38 of them "en masse", piled them into police vehicles, took them to police headquarters, and held them for a number of hours before they were released. The strikers were brutally roughed up. Two of them were injured: one needed medical treatment; and another one had to be taken to hospital. Twenty-seven of them were charged with criminal offences. Subsequent protests by 16 top officials of the GWU, and the union's lawyer, led to them being charged with criminal offences, several of which carry prison sentences.
3. 257. On the same day, the authorities and security forces also intervened in a second strike in Valletta harbour. This was a solidarity strike in another dispute.
4. 258. By way of background, the complainants explain that Malta International Airport was established in May 1991. In December 1994, the UHM trade union, which is affiliated to a second national trade union centre, the CMTU, claimed recognition at the airport. In March 1995, the approximately 200 airport workers were balloted and the UHM obtained 17 more votes than the GWU. The GWU accepted the decision of the workforce.
5. 259. Malta's labour legislation does not provide for polls to be conducted to determine a majority union. However, this has been achieved through international practice. The 1995 ballot was organized by the MIA and the National Electoral Commission, after all the parties (i.e. GWU, UHM and MIA) reached an agreement.
6. 260. On 17 April 1998, the authorities made offers to workers in the Department for Civil Aviation who worked at the airport, but were employed by the public service/armed forces, to join the MIA. On 22 April an agreement was signed between the Government and the MIA that some of these workers would have one year to decide whether to renounce their employment with the Armed Forces of Malta and instead to become employees of the MIA. Others had two months after signing a collective agreement to exercise their right to either revert to their previous employer or to remain with the MIA. The GWU discussed the transfer of these employees as it represented the majority of the workers (approximately 400) at the airport.
7. 261. On 1 May 1998, the workers were transferred. On 8 May the GWU requested sole recognition at MIA as it represented 60 per cent of membership. The MIA agreed, but the UHM did not. In June 1998, the Director of the Labour Department stated that according to proof he had received, the GWU represented the majority of employees at the airport.
8. 262. Maltese law says nothing about recognition. The practice is that a union is entitled to sole recognition if it has 50 per cent plus one member. Practice also provides for joint recognition if neither union has more than 50 per cent.
9. 263. On 22 July 1998, the MIA granted sole recognition to the GWU. The UHM, however, opposed recognition of the GWU and on 11 August 1998 the MIA decided to take the case to the Industrial Tribunal for a ruling on which union should be recognized.
10. 264. In early September 1998 there was a change of government. In accordance with the law, the Minister of Labour and Social Policy referred the case to the Industrial Tribunal on 28 September. On 2 October, the UHM ordered partial industrial action in protest against recognition of the GWU.
11. 265. On 21 July 1999, the Industrial Tribunal handed down an ambiguous ruling on the recognition issue. It said that until the employees transferred from the public service/armed forces renounced their right to return to the public service/armed forces, and became employees of the MIA, they could not be considered as MIA employees. (The Industrial Tribunal decision was attached to the complaint.)
12. 266. The three unions at the airport, GWU, UHM and MATCA, which represents air traffic control staff, failed to agree on the implications of the ruling. The UHM continued to claim that it had sole recognition and had the right to negotiate on behalf of all employees. On 27 July 1999, the GWU insisted with MIA management that negotiations for a new collective agreement should be opened. This was even truer in view of the fact that more than 90 workers in the fire section had renounced their right to revert to the armed forces and consequently were now fully fledged MIA employees.
13. 267. On 3 August, as no solution was in sight, the MIA referred the case back to the Industrial Tribunal for a clear interpretation of its decision on recognition. On 10 August, the GWU insisted with the MIA management that a ballot should be held in view of the fact that the 90 or so workers had renounced their right to revert to the armed forces. The MIA management took the line that the issue was between the two unions.
14. 268. On 16 August, the GWU ordered partial industrial action. A conciliation meeting held on the same day with the Director of the Labour Department and members of the Industrial Tribunal failed to resolve the issue. The next day, the GWU ordered a four-hour strike in the airport's fire section in support of the claim that it represented the vast majority of workers at the airport. Before going on strike, the GWU offered to provide an emergency fire service during the strike, but MIA management refused. During the same day, the Prime Minister of Malta intervened and made a public statement saying that according to the Industrial Tribunal award, the UHM had a majority union membership at the airport.
15. 269. On 19 August, the Industrial Tribunal met again to give an interpretation of its decision of 21 July 1999. The GWU protested, saying that a new industrial tribunal should be set up since a supervening fact had occurred now that more than 90 workers in the fire section had renounced their right to go back to the armed forces. The GWU also alleged that two members of the three-person Industrial Tribunal clearly had conflicts of interest in the matter, and would not give the union a fair hearing. They asked for these two officials to be replaced. The two officials were the President of the CMTU national trade union centre, whose largest trade union affiliate was the UHM, and a high-ranking member of the Malta Employers' Association, which had issued statements criticizing the GWU action at the airport.
16. 270. The Industrial Tribunal dismissed the GWU arguments. The GWU filed a constitutional case over the issue. However, before the Industrial Tribunal was adjourned, the MIA management, the GWU and UHM agreed that the MATCA trade union, which represented air traffic control staff at MIA, should be given sole recognition for these workers.
17. 271. The GWU continued to ask for a membership ballot but MIA management refused. On 20 August, the GWU ordered a four-hour protest strike in all sections of the MIA. On the day of the strike, the GWU called two meetings at the airport, which were publicized. The first meeting went ahead and the GWU General Secretary again called for a ballot. Permission for union leaders to address fire section personnel at the second meeting was unjustifiably denied.
18. 272. Before going on strike, the GWU again offered to provide an emergency fire service during the strike, but the MIA refused. Shortly after the strike began, the MIA closed the airport, as no fire service was available. Fifteen minutes before the strike was due to end, the strike was broken up by army personnel and the police who took over the workplace. The latter violently ejected around 80 strikers in the fire section, arrested 38 of them "en masse" as well as three GWU officials who were peacefully picketing, without verification or investigation.
19. 273. Air Malta sacked a contract worker from New Zealand because he refused to work during the strike. The contract worker said in a taped interview that Air Malta told him to cross the picket line, otherwise he would be fired. He said that there were ugly scenes at the airport. In particular he saw "the way that the fire crew were taken away by military personnel and the police".
20. 274. The strikers were brutally roughed up and dragged into police vehicles, one of which had to wait in excessively hot conditions for two hours, before being taken to police headquarters. At no time were they informed why they had been arrested. The GWU made strong protests and extended the strike indefinitely.
21. 275. When the last police vehicle containing arrested workers finally set off for police headquarters, GWU officials intercepted it with their cars. They asked to speak to the detainees, to give them some water and medical assistance, and to know the reason for their arrest. An ambulance was called to take one of the workers on the police bus to the hospital.
22. 276. The police persistently refused to give any explanation for the arrests. However, the Deputy Police Commissioner told the GWU General Secretary and the GWU lawyer that if they thought that the workers had been illegally arrested, they could go to police headquarters or take the police to court.
23. 277. The union leaders sat down on the ground in front of the police coach. Some 80 police arrived and brutally dispersed the GWU officials, including the union's General Secretary and President. Union cars were forcibly removed by the police and damaged in the process.
24. 278. The arrested workers were released after being questioned at police headquarters. GWU officials stayed outside police headquarters until the last worker was released. When the workers arrived at work the next day, they were refused entry and received letters saying that they had been put on stand by at home with full pay pending further investigations and a magisterial inquiry. One month later they were told they could report for work without prejudice to any further measure that might be taken against them in the future. The three union officials who had been picketing during the strike and who had also been arrested were subject to the magisterial inquiry as well.
25. 279. The strike continued into the late evening of 20 August, but the GWU called it off when its officials came to know of a provisional court injunction stopping the strike. The MIA management had applied for an urgent injunction against the strike. The court found in the MIA's favour, and granted the provisional injunction prohibiting the GWU from continuing the industrial action, followed by a definitive injunction three days later. The court ruled that a dispute over recognition was not an industrial dispute under the 1976 Industrial Relations Act. This decision divested the GWU and its members of its immunity from prosecution. The GWU is still challenging the legality of the warrant in court.
26. 280. A few days after the strike, the Government claimed that there was an agreement between the Armed Forces of Malta and the MIA that workers in the fire section could not go on strike. When these workers were transferred to the MIA in April-May 1998, their employment contracts said "personnel in the air traffic services and the fire-fighting section are to be identified as essential services under the relevant acts by government legislation". However no such legislation was ever enacted. Neither had a minimum service been defined. Furthermore, the Government had allowed the strike on 17 August to take place in the fire section of the MIA without making any similar claim.
27. 281. Twenty-seven of the arrested strikers were arraigned in court in three different groups on 29 November, 3 December and 14 December 1999, on charges of obstructing the police in their duties, and damaging a fire engine and an ambulance in the fire section of the airport during the strike. GWU officials and delegates from the "Global Mariner" attending a conference of the International Transport Workers' Federation in Malta, accompanied the accused to court on 29 November. Some 400 police officials barred the entrance to the court for the "Global Mariner" delegation.
28. 282. On 6 December, 17 top GWU officials, including the General Secretary, Tony Zarb, the President, James Pearsall, the International Secretary, Michael Parnis, the Vice-President, Saviour Sammut, the GWU legal adviser, Dr. George Abela, eight secretaries of GWU sections, and other officials, were charged and arraigned in court in connection with the strike of 20 August. Thirteen of them were charged on the following eight counts: (1) unlawfully detaining police officials; (2) threatening police officials; (3) assaulting or resisting police officials by violence; (4) disturbing public order; (5) obstructing the police in their duties; (6) inciting others to commit crimes; (7) inciting an assembly to detain police officials, threatening police officials, assaulting or resisting police officials by violence; (8) taking part in an assembly for the purpose of detaining police officials, threatening police officials, assaulting or resisting police officials by violence. The most serious charges carry sentences of up to two years' imprisonment. Others carry heavy fines.
29. 283. On 30 November 1999, the GWU filed a second constitutional court case against the Police Commissioner and the Attorney-General, this time for breaches of fundamental human rights.
30. 284. During the week of 6-10 December 1999, the Government published a bill amending section 18 of the 1976 Industrial Relations Act which refers to essential services. This said that air traffic control and fire-fighting are essential services which must be manned at all times, and the personnel in these services would not enjoy immunity from legal proceedings if they went on strike.
31. 285. The complainants state that if workers legitimately categorized as providing essential services are deprived of an essential means of defending their socio-economic and occupational interests (striking), the Government must provide compensatory mechanisms for dispute resolution in the legislation. The issue of union recognition at the airport remains unresolved with no union currently being recognized.
32. 286. The authorities and the security forces also intervened in a second strike on 20 August 1999. This began after the Government reneged on an agreement it had made with the GWU port and transport sector on 18 June. The GWU registered an industrial dispute, and industrial action in the sector began in mid-August 1999. A solidarity strike in the sector led to the boycott of a ship carrying oil from entering the harbour, for the first time during the dispute. The Government immediately issued an ad hoc authorization to an unlicensed pilot, making him an "authorized pilot" to bring the ship into port. Army patrol boats escorted the ship. The Government also issued a special licence to a private contractor which it engaged to provide tug services. This dispute was settled on 25 August 1999.
33. 287. The IMF communication of 16 March 2000 complains of government intervention in the strikes which took place in August 1999 and the subsequent arrest and detention of trade unionists.

B. The Government's reply

1. 288. In its communication dated 21 March 2000, the Government pointed out that the underlying dispute that gave rise to the incidents in question concerned trade union recognition at Malta International Airport (MIA) between the General Workers' Union (GWU) and the Union Haddiema Maghqudin (UHM). The latter union had been granted sole recognition as the representative of MIA employees. The Government states that it has always adopted a neutral stance in the dispute and has only intervened when absolutely necessary: to ensure the continued delivery of essential services and supplies which were being disrupted by industrial action; and to enforce the law when and where it was being flagrantly broken. It further reiterates its commitment to the relevant provisions of the Maltese Constitution, to existing labour legislation and to their international legal obligations, including ILO Conventions Nos. 87 and 98.
2. 289. The Government states most emphatically that all the actions taken by the authorities in the context of the dispute which gave rise to this complaint were solely motivated by the need to uphold the principle enunciated in Article 8 of Convention No. 87. The Government highlights the fact that the events in question raise the following issues: the upholding of the fundamental principle of the rule of law by everyone concerned, including all social partners even when industrial action is being taken; the social partners' responsibility to fully respect the decisions taken by the judicial institutions of Malta, including the Industrial Tribunal, in all circumstances, even when decisions are taken which affect upcoming or ongoing industrial disputes; the social partners' obligation to honour the terms and conditions of agreements to which they are parties, including when those agreements, inter alia, identify essential services, as a result of which employees providing those services are not allowed to take strike action; the right of non-striking workers to report for work if they are willing to do so, and their right to request protection for their physical safety if they feel or are threatened.
3. 290. The Government very much regrets that to a significant extent the contents of the ICFTU/ITF complaint represent a very slanted version of events although the Maltese authorities on a number of occasions sought to clarify matters with both the ICFTU and ITF.
4. 291. The annexed documents highlight the following facts with regard to the industrial action at MIA:
   • -- A number of employees of the fire section (presumably members of the trade union (i.e. the UHM) whose recognition the GWU is contesting) opted to work since they were not on strike. Instead of resorting to peaceful picketing, their striking colleagues, members of the GWU, chose to damage the fire engines and ambulances at the fire section of the airport, obviously to render them inoperable. It should be noted that Malta International Airport is the only airport in the country and, therefore, Malta's principal economic lifeline.
   • -- In the circumstances, the police were forced to intervene, informing the strikers that their colleagues had a right to work and that this right would be protected. Some of the striking employees forcefully resisted the police and a number of employees were consequently arrested and taken to police headquarters for questioning with regard to the damage caused at the fire section as well as other breaches of the law. Following this process of questioning, all employees were released. None of them had requested medical assistance. One individual, however, was taken to hospital for an ECG, having complained of chest pains while he was being escorted to police headquarters in a police bus which had been obstructed in a public road by officials of the GWU. On the other hand, three policemen were injured during the incidents.
   • -- On the morning of the day when the industrial action was taken and the incidents in question took place (i.e. 20 August 1999), upon a request by MIA, the civil courts issued a prohibitory injunction which enjoined both unions (the GWU and the UHM) to refrain from further industrial action against MIA until such time as the issue was resolved in the court and/or by the Industrial Tribunal. Notwithstanding this, the GWU proceeded with its actions. It was only on the morning of Saturday, 21 August 1999, that MIA was informed by means of a handwritten note from the GWU that employees on strike were to report back for work on that same day at 7.45 a.m.
   • -- The free use of adjectives, in statements then issued by the GWU and now replicated in the complaint to the Committee on Freedom of Association, such as "brutally", "forced", "treated badly" and "manhandled" when describing the police action on the day of the incidents, is totally contradicted by the facts which are publicly documented and which have now been recorded by the inquiring magistrate and by the Court of Magistrates.
   • -- The subsequent arraignment of officials and members of the General Workers' Union was pursued by the relevant and responsible institutions of the country according to the due process of law and the charges levelled against these persons do not relate to matters pertaining to trade union rights but to offences relating to the wilful damage of equipment and to the disruption of public order.
5. 292. A copy of the letter of complaint to the Committee on Freedom of Association was forwarded by the Government to Malta International Airport plc (MIA), a public sector organization with a major interest in this issue. (The detailed response of the MIA was attached to the Government's reply.) The comments of MIA refer to the trade union recognition dispute in question as well as to the ensuing industrial action at Malta International Airport and provides extensive background information.
6. 293. The Government gives an account of developments on the court proceedings that have been instituted against members and officers of the GWU as well as of the circumstances leading to these proceedings.
7. 294. On 20 August 1999, the General Workers' Union ordered a strike at the fire-fighting and ambulance section at Malta International Airport. A number of workers who were out on strike actually organized a sit-in in the fire-fighting section of the airport and did not allow fellow workers, who did not want to obey the union directive, to enter the section to work. Nor did the striking workers allow members of the Civil Protection Department (firefighters), who were detailed to go to the airport to give these essential services and provide possible emergency intervention, to enter the premises.
8. 295. It must be noted that the fire-fighting and ambulance section at Malta International Airport is in a restricted security zone within the airport perimeter and access thereto, for obvious security reasons, is limited to persons holding an authorization for the purpose under the Civil Aviation and Airports Security Act, 1998. The permit only allows persons to enter a security zone while on duty.
9. 296. The provision of fire-fighting and ambulance services at the airport is required in terms of ICAO requirements for the airport to be operational, as well as for any assistance that could be required by any aircraft flying in the vicinity of Malta needing to effect an emergency landing at the airport.
10. 297. In fact, on the day of the incidents, the airport had to be temporarily closed for a number of hours because such services were not available. Besides reducing the safety of aviation as aforesaid, this was detrimental to the tourism industry since thousands of tourists were stranded at the airport for long hours during the peak tourism season.
11. 298. The Civil Protection Department personnel was escorted inside the airport perimeter by Armed Forces of Malta (AFM) personnel who are entrusted with responsibility for airport security. At no time did the AFM personnel intervene in the arrest of the striking workers. When the striking workers saw the Civil Protection Department personnel approaching, they confronted them with aggressive behaviour and, to further ensure that they or the employees who were not on strike would not be able to provide the fire-fighting and ambulance services, they proceeded to damage the fire-fighting equipment and ambulances at the section.
12. 299. The police were called in to intervene and proceeded to remove the striking workers who were not authorized to remain in the restricted security zone. The police also had to investigate the wilful damage caused to the equipment and for that purpose proceeded to arrest the striking workers present at the fire-fighting section, who were suspected of having caused the damage. Most workers complied with the police orders voluntarily, but some resisted arrest and formed a human chain to obstruct arrest. Limited and necessary force had consequently to be used. No one was roughed up, brutally or otherwise, and no one suffered any injuries.
13. 300. The arrested persons were transferred by means of two police buses to police headquarters for interrogation. While the second police bus was on its way on the public highway proceeding to the police headquarters from the airport, a number of union officials and supporters proceeded in a number of private cars to surround the police bus and prevented it from proceeding on its way. The union officials and supporters held the police bus in the raging afternoon heat for around an hour shouting abuse at the police officers and preventing them from proceeding on their way. This unprecedented and illegal action blocked all traffic on a major arterial road leading to Valletta. It continued for several hours during which time GWU officials harangued and obstructed the police officials who were trying to restore law and order.
14. 301. When the police attempted to remove the obstructing vehicles, they were physically prevented from doing so by the union officials and supporters who were present. During this time a worker who had been previously arrested and who was on the police bus, complained that he was unwell because of the heat and an ambulance was called to assist him. The union officials and supporters even prevented the ambulance from proceeding on its tasks. The worker in question was eventually transported to hospital where he was immediately released after medical examination.
15. 302. A magisterial inquiry was conducted by the magistrate on duty on the incidents at both the Malta International Airport fire-fighting section and in connection with the stopping of the police bus. The magistrate concluded that offences had been committed by striking workers and union officials at both places and therefore also concluded that criminal proceedings could be initiated against them for the following offences: voluntary damage to property; unlawful assembly for the purpose of committing offences; violence and threats to public officers; complicity in the above; unlawful entry in a restricted security zone at the airport; unlawful picketing; breach of public peace and good order; disobedience of lawful police orders and obstruction to police in the performance of their duties; dangerous driving; unlawful arrest; slight personal injuries. The police subsequently took action to charge the persons identified by the inquiring magistrate, as well as the other person subsequently identified by the police, with the offences above stated before the proper courts.
16. 303. In no way was the police action taken with the purpose of intimidating the union members or of preventing them to exercise legitimate union rights. The General Workers' Union was in no way prevented from addressing its members or holding meetings for them and it was only denied in its request to hold a meeting for all workers affiliated with it in an airport security zone, and this for obvious reasons. Other meetings were held at unrestricted areas of the airport without interference.
17. 304. The Government did not in any way intervene or take sides in the recognition dispute either on the side of any of the two unions or of management and only intervened to ensure the provision of essential supplies and services, and to restore public order.
18. 305. Union officials and members were charged before four different magistrates. Two of these magistrates, for procedural reasons, did not hear the prosecution evidence and have ordered a discharge (which is subject to reversal) while the two magistrates who actually heard the evidence have concluded that, with regard to the persons charged before them, there is enough evidence for them to be indicted. The cases presented by the union officials and members for the Maltese Constitutional Court are being heard regularly and the due process of law is being respected.
19. 306. The complaint also refers to the agreement which had been reached on 22 April 1998 as a result of discussions with the GWU and the UHM regarding the terms and conditions of service for personnel of the Air Traffic Control Corps (ATCC) and Airport Company (AC) of the Armed Forces of Malta (AFM) to be engaged with Malta International Airport plc (MIA). The Government points out that the complainants quote one particular condition which was accepted by every single employee, namely that "personnel in the air traffic services and the fire-fighting section are to be identified as essential services under the relevant acts by government legislation". Immediately after the agreement had been reached, every single employee of the ATCC and the AC had been personally notified with a copy of the full terms and conditions and was requested to make a free choice and to sign a declaration stating whether he/she wanted to join MIA under those terms and conditions, or remain an employee of the AFM or apply for retirement.
20. 307. The Government notes that the complainants argue that "no such legislation was ever enacted" and that they imply that no action was taken by the Government between the date of the agreement and the publication of the Bill in December 1999. This statement is highly misleading since it fails to mention the fact that on 8 May 1998 (i.e. a mere fortnight after the agreement was reached), the Government of Malta published Bill No. 66 entitled "an Act to amend various laws in connection with the transfers of services from the Air Traffic Control Corps and the Airport Company of the Armed Forces of Malta to the Malta International Airport plc". This Bill was published in Government Gazette No. 16613 of 8 May 1998 after having been given its first reading in Parliament on 4 May.
21. 308. The "Objects and reasons" paragraph which forms an integral part of Bill No. 66 state: "The object of the Bill is to amend the Malta Armed Forces Act, Cap. 220, and the Industrial Relations Act, Cap. 266, in order to safeguard the pensions of certain military personnel belonging to units of the Armed Forces of Malta who take up full employment with Malta International Airport plc upon the disbandment of the units, as well as to safeguard the continued operation of such services upon the taking up of certain essential services at the airport by civilian personnel." Neither the GWU nor any other person or organization commented on this issue between the time of publication and the date when strike action was taken. It was only when everyone concerned was duly reminded by the Government about the employees' obligations in accordance with the terms of the agreement, that the GWU, and subsequently the complainants, decided to comment on the issue.
22. 309. The Government points out that the legislative process for the enactment of Bill No. 66 was stalled in view of the fact that Parliament was dissolved in July 1998 and early general elections called in September 1998 when a change of government took place. Naturally, the legislative process had to be restarted under the new administration in accordance with the administration's legislative and parliamentary priorities. In fact, the first reading of this Bill was moved in the Maltese Parliament for the second time on 28 September 1999 and it was subsequently published in Government Gazette No. 16880 of 3 December 1999.
23. 310. The Government further argues that the complainants' statement that "the Government had allowed the strike on 17 August to take place in the fire section of the MIA without making any similar claim" is blatantly incorrect, since by letter dated 21 August 1999, the 98 employees of the fire section personally received a copy of the declaration which they had signed accepting the terms and conditions of the agreement that had been reached. Their attention was also drawn to the fact that the agreement granted each one of them the right to retain their pension rights in accordance with the special conditions applicable to armed forces personnel in view of the fact that their service was considered as an essential service and therefore they could not take strike action.
24. 311. As concerns the complainants' allegations about the sympathy strike by port pilots in a separate issue regarding Kalaxlokk Co. Ltd., the Government recalled that:
    • -- The GWU registered an industrial dispute, and industrial action in the sector began in mid-August 1999. On 20 August 1999, the GWU ordered strike action in the sector.
    • -- On the day in question, a small fuel tanker was waiting to enter the port of Marsaxlokk to discharge its cargo consisting of aviation fuel.
    • -- Under normal circumstances, a licensed pilot conducts or assists the captain of a vessel in conducting ships within Maltese waters. Pilots are licensed by the Malta Maritime Authority which is regulated by the Malta Maritime Authority Act of 1991. Section 56 of this Act regulates the licensing of pilots and states in subsection 4 that "the Authority may, if it considers expedient, authorize any person to pilot a vessel in a port subject to such terms and conditions as it deems fit".
    • -- In view of the circumstances, and in accordance with section 56(4) of the abovementioned Act, the Malta Maritime Authority authorized in writing two senior officers (in the rank of captain) in the Maritime Squadron of the Armed Forces of Malta, to assist captains of vessels which were inwards or outwards bound.
    • -- During the manoeuvre, there was in attendance a tug boat belonging to the Civil Protection Department in order to give all necessary assistance to the tanker to dock safely. The presence of the AFM patrol boats was rendered necessary in view of confirmed reports that a tug captained by a member of the GWU used his radio to threaten the captain of the Civil Protection Department's tug boat "Sea Salvor" and later tried to ram it.
    • -- The allegation made by the complainants that a special licence was issued to a private contractor to provide tug services is totally unfounded.
    • -- The Government emphasizes that it has a primary responsibility to ensure adequate fuel supplies to meet the energy requirements of the population and that trade union action to withhold such supplies could seriously prejudice the economic stability of a number of enterprises and put employment in jeopardy as well as cause unnecessary hardship to the population in general.
    • -- The Kalaxlokk issue was settled as a result of an agreement reached between the Government and the GWU on 26 August 1999.
25. 312. By way of complement to the Government's reply, the information provided by MIA can be summarized as follows. Firstly, as concerns the request for sole recognition made by the GWU to the MIA management on 8 May 1998, MIA management at that time, in agreeing with the claim, did not comply with accepted industrial relations practice, as the currently recognized union, the UHM, was not consulted and recognition in their favour was not, as a matter of fact, withdrawn. It is to be pointed out that at that time the UHM enjoyed sole recognition in respect of all MIA's confirmed employees, and this recognition has not been withdrawn up to this very day.
26. 313. The two unions involved in the recognition issue that developed have very similar powers to obstruct the operations of the airport significantly. In this context, MIA found itself in a real dilemma: by choosing to grant recognition to either of the two unions in the face of competing claims being made by both of them, MIA would have found itself embroiled in an industrial dispute of major proportions and this in an enterprise of very real importance to the national economy. In the light of this situation, MIA invoked its rights under the Industrial Relations Act, 1976, and in August 1998 referred the matter to the Industrial Tribunal. Following lengthy and strongly argued proceedings, during which MIA continued to adopt a low-profile approach, the Industrial Tribunal handed down the award to which reference is made in the complaint.
27. 314. The contending unions (the GWU and the UHM) failed to agree on a mutually acceptable interpretation of the operative part of the award handed down by the Tribunal, namely that until such time as they become employees of MIA, ex-government employees (including those coming from the Armed Forces of Malta) could not be taken into account for the purposes of establishing which of the contending unions should be granted recognition. GWU representatives consistently called on MIA to hold a ballot in order to establish which union the workers preferred as their representative. The UHM consistently countered this call by submitting that any such ballot could only be held amongst MIA employees in terms of the Industrial Tribunal award. MIA, therefore, was still caught in the very same dilemma that faced it before the award.
28. 315. In the light of the August 1999 declaration by fire section personnel that they were renouncing their right to reversion to government service, the GWU contended that a ballot should be held including these "new" employees of MIA, while the UHM contended that the reversion was not in accordance with the terms of the preliminary agreement covering these employees. The UHM referred to clause 4 of the preliminary agreement of 22 April 1998 whereby the trial period for these workers ends two months after the signing of a collective agreement with MIA (no such agreement has been signed up to this date).
29. 316. Industrial action was resorted to by the GWU in support of its contention, but the GWU did not follow the provisions of the collective agreement regarding the 48-hour notice to be given before industrial action. Furthermore, the company was not informed about the industrial action at the fire section. The letters from the GWU at this time advised the company of a "communications ban" issued to its members and of directives issued to the airport attendants, finally informing the company that such actions (at the other sections of the airport) could also involve the employees at the fire section.
30. 317. While the complaint refers to a GWU offer to provide an emergency service, the "emergency service" offered would only operate in the event of flights overflying Malta being forced to divert to Malta because of an emergency. Flights departing from and arriving in Malta regularly were not to be covered. Moreover, this position ignores the reference in the applicable preliminary agreement that "personnel in air traffic services and the fire-fighting section are to be identified as essential services under the relevant Acts by government legislation".
31. 318. Faced with this further complicated impasse, and the clear and present danger that the airport could be shut down at any time, MIA made a submission to the Industrial Tribunal on 3 August 1999 requesting that, in the light of the developments and the terms of the award to which reference has already been made, the situation be clarified with a view to resolving the dispute. The GWU counsel submitted that the union-nominated member could not properly sit on the Tribunal, as he was the President of the Confederation of Malta Trade Unions, of which Confederation the UHM was an affiliate and also raised the question as to whether the employer-nominated member of the Industrial Tribunal could properly sit on the Tribunal, as the Malta Employers' Association, with whom he was employed, had "passed some comments" regarding the GWU's industrial actions. These points had not been raised during the "original" proceedings.
32. 319. In its decree on this matter delivered later in the afternoon, the Tribunal dismissed the GWU's arguments and the GWU counsel stated that a constitutional application would be filed by the union in this regard. At this point, the Tribunal suspended further hearing of the issue sine die. The constitutional application is still pending before the Civil Court and the Tribunal proceedings are consequently still suspended.
33. 320. In support of their position, the GWU called a strike as stated in the complaint. Again, the company was never informed by the GWU of any industrial action. The company was only informed of a meeting for workers that was to be held at 10.15 a.m. and which eventually turned out to be a work stoppage. The industrial actions involved, as previously, workers in the fire section. The non-availability, at that time, of an appropriate response to emergencies caused the MIA management to decide to close the air space and this in accordance with international regulations (ICAO). However, MIA opted to take reactive measures, as outlined below.
34. 321. On 20 August 1999, MIA requested the Civil Court to order that a warrant of prohibitory injunction be issued enjoining both unions (the GWU and the UHM) to refrain from further actions until such time as the issue was resolved in the court and/or by the Industrial Tribunal as the case may be. Relying on public statements made to the effect that the dispute was one between two unions, rather than with an employer, and therefore not an industrial dispute as properly defined under the law, and on the terms of MIA's application, the Civil Court granted the injunction, which is still in effect.
35. 322. MIA ascertained that, taking into consideration the known fact that a number of workers (of the fire section), members of the other union - UHM - were willing to work, and the fact that the services of these workers could be backed up by civil protection resources to provide the necessary emergency services, the air space could be opened under the applicable parameters. It is to be noted that at this time, striking workers occupied the fire section premises and it was known that these workers had incapacitated the fire tenders and the ambulance and caused damage to these vehicles and other equipment to the extent that the air space had to be closed down. It was also learnt later that the striking workers hid the keys of the fire section vehicles, rendering them temporarily inoperative. The police force then intervened only in order to contain as much as possible the damage that was being caused and to restore law and order within the airport's restricted and security areas. (Documentary photos were attached.)
36. 323. MIA informed the Government that it was able, provided the workers' safety was guaranteed, to open the airport under full safety standards. The Government decided to escort to the fire section the workers who were willing to work and to maintain sufficient protective cover to guarantee their safety. A number of personnel from the Civil Protection Department were asked by the Government to back up the fire section workers who were willing to perform their duties. It was also decided to order the striking workers to leave the security and restricted zone, where they were without authorization as well as to evict from this zone other persons, not employees of MIA or otherwise authorized to be in the restricted and security zone.
37. 324. As a final point, MIA provides further information concerning the statement in the complaint that it denied permission for GWU to address fire section personnel. After the first strike of 17 August, the GWU had asked MIA for permission to hold a meeting for all its members, employees of MIA, at the fire station itself. MIA explained to the GWU officials that this would not be possible for three reasons, namely: (1) in case of an emergency, a crowd around the fire station would hinder the prompt response from the firefighters on duty; (2) the area was a restricted and security area and not all employees of MIA, members of the GWU, have a security pass for the area; (3) the issue of security passes was anyway outside the competence of MIA.
38. 325. The GWU asked for an alternative site, within MIA, and proposed the car park situated near the Office of the Director-General of Civil Aviation. The GWU suggested that the fire engines should be moved from the fire section and be located near the site of the meeting "in case of emergency". This was also not acceptable to MIA for technical reasons, namely that in case of an emergency on runway 32, the fire engines that would be located at the suggested site would not be able to respond fast enough as the car park was too far away from the threshold of runway 32.
39. 326. The GWU asked MIA to propose a site within the airport area that would be acceptable to both parties. MIA said that because of the restrictions imposed for security reasons, no area within the airport restricted and security area would be ideal for such a meeting. MIA stated that the GWU should find another site outside the airport to hold the meeting. MIA further stated that, as long as the airport/airfield remained operational, it would find no objection to allow its workers, members of the GWU, to attend the planned meeting notwithstanding that it was being held during office hours. The meeting was eventually held by the GWU on 20 August 1999 at 10 a.m. at the public entrance of the air terminal, blocking the main entrance leading from the public car park into the whole terminal. MIA was not informed of this alternative location for the meeting, let alone asked for permission. Notwithstanding, MIA did not even attempt to hinder this unauthorized meeting and took no action with regard to any unauthorized attendance by employees who should have been at their place of work and had therefore left their places of work without the necessary authorization.
40. 327. At 12.30 p.m. a GWU delegation requested a meeting with MIA management at which they requested permission to address fire section employees at the fire section which is situated in a restricted and security zone of the airport. These GWU officials were informed that the granting of such permission was vested in the Office of the Manager of Airport Security that falls under the sole jurisdiction of the Ministry for Home Affairs. Furthermore the MIA management informed the GWU delegation that it (the management) was not authorized to recommend the issue of such permits.
41. 328. Finally, in a communication dated 11 April 2000, the Government responded to the observations made by the International Metalworkers' Federation. In this latest communication, the Government has further indicated in respect of the allegations of a breakdown in collective bargaining that, following mediation efforts by the Deputy Prime Minister and Minister for Social Policy, the trade union recognition dispute has been settled. In light of the agreement reached between the General Workers' Union, the Union Haddiema Maghqudin and Malta International Airport over union recognition at MIA, the President of Malta has granted a pardon to all the members and officials of the GWU who had been charged in court in relation to the abovementioned incidents.

C. The Committee's conclusions

1. 329. The Committee notes that the allegations in this case concern the refusal to hold a recognition ballot, violations of the right to strike and police and military intervention in two instances of industrial action.
2. 330. In the first instance, the Committee notes that the allegations in this case raised a number of detailed points which necessarily gave rise to lengthy and detailed replies by the Government and the airport authority concerned. Many of the issues raised would probably have been dealt with more effectively had the national legislation been clearer in respect of a number of matters relative to recognition disputes, representativeness and legitimate restrictions on industrial action. The Committee would therefore draw the Government's attention to the fact that ILO technical assistance is available to facilitate a review of existing legislation and to assist in finding solutions to the types of difficulties encountered at Malta International Airport (MIA).
3. 331. As concerns the issue of recognition at MIA, the Committee notes the complainants' allegation that MIA refused to agree to the request from the General Workers' Union (GWU) that a ballot be held to determine the most representative union. The information provided by MIA, and corroborated in the complaint, demonstrates however that the airport authority was making reasonable attempts to settle the recognition issue through the courts in the absence of any explicit legislative provisions for the determination of the most representative union and in the light of the complexity arising from the unclear status of some of the employees in question. The Committee considers that the ambiguous ruling handed down by the Industrial Tribunal on 21 July 1999 concerning the employees transferred from the public service/armed forces cannot be attributed to any fault of MIA and the latter's desire to resolve this ambiguity through the court rather than hold a ballot (which was opposed by the rival union) in a situation where the definition of employees eligible to take part in such a ballot was unclear cannot be condemned.
4. 332. As concerns the tribunal judgement in respect of the inclusion of those employees transferred from the public service/armed forces for the purposes of determining union representativeness, the Committee recalls that all public service employees (with the sole possible exception of the armed forces and the police, as indicated in Article 9 of Convention No. 87), should, like workers in the private sector, be able to establish organizations of their own choosing to further and defend the interests of their members (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, para. 206). The Committee further recalls that the members of the armed forces who may be excluded from Convention No. 87 should be defined in a restrictive manner (see Digest, op. cit., para. 222). In this specific case, the employees were transferred to MIA from the armed forces and were given the following options: to join MIA with the possibility of rejoining the armed forces within 12 months; to remain with the armed forces; or to apply for retirement; each option had its advantages and disadvantages, including in respect of pension entitlements. The assignment of these employees to MIA was however also made under a preliminary agreement (clause 4) stating that the trial period for these workers ends two months after the signing of a collective agreement with MIA (yet to be signed). A dispute between the two principal unions arose in respect of the point in time at which the above employees could be considered as having effectively renounced their right to revert to the armed services and thus be taken into account for determining representativeness. This difference of opinion between the unions resulted in MIA requesting the Tribunal to provide an interpretation of its earlier judgement holding that these employees could not be taken into account until such time as they became employees of MIA.
5. 333. The issue as to whether the transferred employees should have been taken into account for determining representativeness is a rather complex one in the case at hand and would best be handled by the competent national courts. Moreover, given that the Government's latest communication indicates that the trade union recognition dispute has been settled following mediation efforts by the Deputy Prime Minister and Minister for Social Policy involving an agreement between the two unions (GWU and UHM) and MIA, the Committee considers that this aspect of the case does not call for further examination.
6. 334. As concerns the allegations of infringements of the right to strike, including police and military intervention, the Committee notes that both the complaint and the Government's reply concur that the industrial action in question took place in the airport's fire section. The complainant asserts that it offered to provide an emergency fire service but that MIA refused. MIA has stated that these emergency services were refused because they were only offered to cover flights flying over and forced to divert to Malta because of an emergency but would not cover flights regularly scheduled to depart from and arrive in Malta. Furthermore, the Government points out that the agreement at the time of the transfer of the members of the armed forces provided that "personnel in the air traffic services and the fire-fighting section are to be identified as essential services under the relevant acts by government legislation" and that each transferred employee was given notice of this condition. The complainant argues however that no such provision has been made in national legislation, nor are there any compensatory guarantees for such workers.
7. 335. Following the commencement of the strike and MIA's closing down of the airport because of an inability to ensure international safety standards, MIA applied to the Civil Court requesting a warrant of prohibitory injunction enjoining both unions to refrain from strike action. The Civil Court granted the injunction apparently on the basis that the dispute was between two unions rather than with an employer and was therefore not covered by the definition in law of an industrial dispute. Subsequently, and, according to MIA, in view of the occupation by striking workers of the fire section premises and the damage caused to vehicles and other equipment, the Government escorted workers who were willing to work to the fire section and ordered the striking workers to leave the security and restricted zone. According to MIA, the police force intervened only in order to contain as much as possible the damage that was being caused and to restore law and order within the Airport's restricted and security areas. According to the complainants, the police, in a brutal manner, ejected around 80 strikers in the fire section, arrested 38 of them "en masse", as well as three GWU officials who were peacefully picketing, without verification or investigation.
8. 336. The Committee would first recall that the right to strike can only be restricted (such as by the imposition of compulsory arbitration to end a strike) or prohibited in essential services in the strict sense of the term; i.e. those services whose interruption would endanger the life, personal safety or health of the whole or part of the population (See Digest, op. cit., para. 516). In this respect, the Committee considers that fire services may quite legitimately be considered to be essential services. The fact that the national legislation in force did not yet address the issue of fire services as essential services is a matter for determination by the national courts. On the other hand, given that the Civil Court judgement issued its injunction on the basis that a dispute over recognition cannot be considered to be an industrial dispute under relevant legislation and given that there appears to be no provision for compensatory guarantees in the event a strike is restricted, the Committee recalls that a ban on strikes related to recognition disputes (for collective bargaining) is not in conformity with the principles of freedom of association and that where strikes may legitimately be restricted, there should be provisions for compensatory guarantees (see Digest, op. cit., paras. 488 and 546). The Committee therefore requests the Government to amend its legislation accordingly and recalls its earlier offer of technical assistance to review the current labour legislation.
9. 337. In view of the clearly essential nature of the fire section occupied by the striking workers and of the numerous allegations of property damage and other serious obstruction to the functioning of this section (corroborated by photographic evidence and the procés verbal), the Committee cannot conclude that the Government order evicting the striking workers or the corresponding police action were in violation of the principles of freedom of association. Furthermore, there is nothing in the information provided to the Committee (including film footage and the procés verbal), which can lead the Committee to conclude that the police used excessive force in their removal of the striking workers. Finally, the Committee notes with interest that, following an agreement between the unions and MIA on recognition, the President of Malta has pardoned all of the GWU officers and members who had been arraigned on charges in connection with the strike on 20 August. In light of the foregoing, the Committee considers that this aspect of the case does not call for further examination.
10. 338. As concerns the subsidiary allegation that permission for union leaders to address fire section personnel was unjustifiably denied, the Committee notes the observations made by MIA that this permission was refused because such a meeting around the fire station might hinder the prompt response from firefighters on duty and the area was a restricted and security area. In this respect, the Committee recalls that the right of occupational organizations to hold meetings in their premises to discuss occupational questions, without prior authorization and interference by the authorities, is an essential element of freedom of association and the public authorities should refrain from any interference which would restrict this right or impede its exercise, unless public order is disturbed thereby or its maintenance seriously and imminently endangered (see Digest, op. cit., para. 130). Given the security zone nature of the fire section and the fact that an alternative meeting place had been found by the GWU without interference by MIA, the Committee considers that there was no infringement of the principles of freedom of association and that this aspect of the case does not call for further examination.
11. 339. Finally, as concerns the allegations of intervention by the public authorities in the solidarity strike in the port sector and the boycott of a ship carrying oil from entering the harbour, the Committee notes the Government's indication that, during the strike action, the Malta Maritime Authority authorized two senior officers in the Maritime Squadron of the Armed Forces of Malta to assist captains of vessels which were inwards or outwards bound and that a small fuel tanker was waiting to enter the port to discharge its cargo consisting of aviation fuel on the day in question. It further notes the Government's indication that it has a primary responsibility to ensure adequate fuel supplies to meet the energy requirements of the population and that withholding such supplies could seriously prejudice the economic stability of a number of enterprises and put employment in jeopardy as well as cause unnecessary hardship to the population in general.
12. 340. In this respect, the Committee recalls that ports (loading and unloading) as well as the services provided by the National Ports Enterprise do not constitute essential services, although they are an important public service in which a minimum service could be required in case of a strike. In this respect, the Committee recalls that what is meant by essential services in the strict sense of the term depends to a large extent on the particular circumstances prevailing in a country. Moreover, this concept is not absolute, in the sense that a non-essential service may become essential if a strike lasts beyond a certain time or extends beyond a certain scope, thus endangering the life, personal safety or health of the whole or part of the population (see Digest, op. cit., paras. 545, 564 and 541). As concerns the use of two officers of the armed forces to assist vessels entering or leaving the port during the strike action, the Committee recalls that the employment of the armed forces or of another group of persons to perform duties which have been suspended as a result of a labour dispute can, if the strike is lawful, be justified only by the need to ensure the operation of services or industries whose suspension would lead to an acute crisis. The utilization by the Government of labour drawn from outside the undertaking, with a view to replacing striking workers, entails a risk of derogation from the right to strike which may affect the free exercise of trade union rights (see Digest, op. cit., para. 574). In the specific circumstances of the case at hand and in light of the fact that the Government acted immediately to provide labour to bring the ships to port without any apparent emergency, the Committee cannot consider that the industrial action in question was such as to lead to an acute crisis and therefore requests the Government to avoid having recourse to such action in the future. However, taking into account the specific concerns raised by the Government in respect of its primary responsibility to ensure adequate fuel supplies to meet energy requirements, the Committee suggests that the Government may wish to give consideration to establishing a minimum service for the port sector to be determined with the participation of the trade union organizations concerned.