Insights

As most of you may have already read in the local press, today the Court of Appeal confirmed a judgment which was handed down by the Constitutional Court in June of last year in the names of GWU v The Attorney General (Case Number 19/2008, 18th June 2015) which essentially declared that the constitution and the composition of the Industrial Tribunal under EIRA is unconstitutional as the chairpersons do not have security of tenure since the Minister for Employment may remove a chairperson every three years.

This case actually began when the GWU filed a case in the Constitutional Court on the basis that when the Government or any parastatal company is involved in a trade dispute, the chairperson of the Tribunal is chosen from the usual list, then a member is selected from the list provided by trade unions and, thirdly another member is selected from a list representing the Government or the actual company involved in the dispute, appointed ad hoc by the Minister for Employment. The GWU successfully argued in this case that the tribunal as composed was illegal and against the Constitution, as it did not respect the principles of fair hearing as entrenched in the Constitution of Malta.

In its decision, the court did not limit itself to trade disputes where government was involved and it upheld a request from the GWU and declared that indeed the composition of the Industrial Tribunal generally was contrary to the Constitution.

Although this decision was then appealed by the Attorney General, the Court of Appeal confirmed the above judgment.

So where does this leave us? Essentially, within the judgment itself, the Court asked the Government to review the composition of the Industrial Tribunal and the way that chairpersons are appointed and removed. The Government has now been tasked to change the law. In the meantime, a shadow has obviously been cast on all the pending cases in front of the Industrial Tribunal because, according to this judgment, the chairpersons as appointed and the current rules governing their tenure do not guarantee the impartiality requested by the Constitution.