European Trade Union Institute, ETUI.

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Malta

3 May 2017

Malta: Legislation on trade union recognition renewed

In recent years, there have been several disputes where the recognition of unions was at stake. Unions clashed over the recognition by the employer and could lose their right to represent workers.

Claims that a union had regained a majority among workers were contested by competing unions and were brought to court. Discord and antagonism between unions, for instance, between the General Workers Union GWU and the UĦM in 1999 over a dispute at Malta International Airport or between the GWU and the Malta Union of Bank Employees over Bank of Valletta led to troublesome relations and problematic situations in collective bargaining (Eurofound 2014). In the past, there have been pleas, in situations with more than one trade union claiming majority representation at a workplace, to introduce possibilities for negotiations of a joint collective agreement with all unions involved. So far, this was not realised.

The Employment and Industrial Relations Act governs the employment relations in Malta. This act neither prescribed nor regulated the issue of trade union recognition at the workplace. Thus, situations where more than one union could claim recognition were inherent due to the lack of legal clarity. At the end of 2016, a new employment and industrial relations act, entitled the Recognition of Trade Unions regulations 2016 (hereafter Legal Notice 413), was concluded that might prevent unnecessary disputes and strikes over trade union recognition.

Content

Legal Notice 413 revises the way in which a trade union gains recognition at the workplace. The aim of the act is to prevent a number of problems by formulating clearer definitions and by providing remedies in case of challenges. The act starts from the perspective of an exclusive right. Article 1.2 prescribes: ‘These regulations regulate the award and revocation of the recognition of a union, as the sole collective bargaining union at the place of work’. However, the next article 2.1 broadens this up.  ‘Provided that for the purposes of these regulations, a “union” shall also mean more than one union who act jointly: Provided further that unions which acquire joint recognition in terms of these regulations shall, whilst such recognition remains, negotiate collectively jointly and not register separate disputes on collective issues with the employer but may only register a joint dispute with the employer and shall not order any industrial action on a separate basis and any action taken separately on a collective matter shall be null and void’.

The legal notice continues by defining what a member is. Trade union members must not be more than three months in arrears with their membership fees. Unions making a claim for recognition have to present the supporting documentation to the Director of Industrial and Employment Relations, who will crosscheck this documentation against information provided by the employer (Eurofound 2017). Claims to be granted recognition cannot be made by another union during the three-month period before the expiry date of the collective agreement, or three months after. When two unions claim to have a majority (which is possible because workers can be dual members), a secret ballot is to be held under the supervision of the Director of Industrial and Employment Relations; a new claim cannot be made before a year has elapsed from this secret ballot. In case there is already a union representing workers the ballot paper will ask employees to choose one union – irrespective of whether they are members of just one or of both – and recognition will then be awarded to the union with the relative majority. To avoid that a situation drags on, a ballot has to be held within 28 working days. Employers were not obliged to recognise a trade union – even after the union proved that it represented an absolute majority of the employees. Legal Notice 413 is more stringent in that respect, as it says that recognition ‘shall be granted’.

Assessment

In general, both employers and trade unions received the act positively. They see the formulation of clearly defined parameters as a way to avoid disputes: in the unions, between trade unions, and between the trade unions and the employer. However, there are some critical comments (source). The criterion of passing on of the membership fee (with a three-month arrear clause) is questioned. In the opinion of the unions, the worker knows best whether the fee has been deducted. In addition, the issue of fragmentation – when specific categories of workers have their own union – has been overlooked. Trade union UĦM is disappointed that the act does not tackle the issue of unions representing very specific categories of workers. A first case in this respect is currently at stake (Air Malta case). According to UĦM, the parameters should be set clearly in the law. Otherwise, the final decision is left to the discretion of a director, which defeats the whole purpose of having a law.

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