Report in which the committee requests to be kept informed of development - Report No 272, June 1990

Case No 1513 (Malta) - Complaint date: 09-OCT-89 - Closed

1. 244. The Committee examined this case at its February 1990 meeting and presented an interim report to the Governing Body. (See 270th Report of the Committee on Freedom of Association, paras. 413-448, approved by the Governing Body at its 245th Session.)
2. 245. The Government sent further information in a communication dated 21 March 1990.
3. 246. Malta has ratified 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. Previous examination of the case

1. 247. When it examined this case in February 1990, the Committee observed that the complaint raised two issues: a problem of inter-union rivalry, and a more general allegation of unfair transfers and their impact on certain employees.
2. 248. Concerning the first issue, the Committee invited the Government to persevere with its efforts, in consultation with the organisations concerned, to put in place impartial procedures enabling the workers concerned freely to choose their representatives. As regards the second question, faced with the parties' conflicting statements and in the absence of convincing evidence, the Committee stated that it was unable to come to a conclusion and asked both parties to provide further information.
3. 249. The Committee made, inter alia, the following recommendations:
   • (a) the Committee invites the Government to persevere with its efforts, in consultation with the organisations concerned, to put in place as soon as possible impartial procedures to enable the customs and excise workers freely to choose their representatives;
   • (c) the Committee requests both parties to keep it informed of the outcome of the proceedings launched under section 18(4) of the Industrial Relations Act, No. XIII, 1976, and to provide further information on the cases of Messrs. Stafrace, Grech and Formosa. (Emphasis added.)

B. The Government's further observations

1. 250. In a communication dated 21 March 1990, the Government states, from a general point of view, that the Comptroller of Customs has necessarily and regularly to assign duties to his staff according to the exigencies of the service and the needs of the Department especially to take account of the type and load of work at specific duty points and during particular periods. This is both his prerogative and his responsibility which he exercises in a fair manner. It does not in any way infringe trade union rights or any other rights at law.
2. 251. As regards more particularly the cases of Messrs. Grech and Formosa, the Government submits that these employees did not suffer financial disadvantage as a result of being posted to day duties. In fact these officers earned more extra pay (22 per cent and 9 per cent respectively) in a period of one year after the strike (March 1989 to February 1990) than in the corresponding period (March 1988 to February 1989) before the strike.
3. 252. The Government further states that Mr. Joseph Stafrace was at no time dismissed, suspended, laid off or locked out. This officer had been detailed for overtime duty between 1600 hours and 2400 hours on 10 June 1989 at Air Supplies Co Ltd., a third party. He did not report for this assignment and did not advise the Department. As a result, another officer had to be detailed for this duty. Some time later, Mr. Stafrace called at the place of work (presumably having realised his default) but his services for this particular assignment were obviously no longer required. According to the Government, it is beyond comprehension how the GWU can allege that this employee was "practically locked out", where in fact the Department took a logical and responsible decision to honour a commitment to a third party, which Mr. Stafrace had failed to perform. This did not in any way affect his normal employment or attendance.
4. 253. The Government also submits that it has filed its reply to the protest lodged by the GWU under section 18(4) of the Industrial Relations Act, 1976, and that the GWU has not followed up the matter to date as required by law.
5. 254. Finally, the Government states that it will persevere in its conciliation efforts in the hope that both unions (GWU and UHM) will come to an agreement. With good will from both unions it should be possible to establish impartial procedures under which the workers concerned can freely choose their representatives.

C. The Committee's conclusions

1. 255. Before dealing with the merits of the case, the Committee observes that the complainant organisation did not send further information, although it had been expressly invited to do so (see paragraphs 447 and 448 of the 270th Report of the Committee). The Committee emphasises that it is essential that both parties, if and when requested, provide such complementary information, to help it establish the facts and reach an informed opinion. In the circumstances, the Committee must therefore come to conclusions without the benefit of the complainant's further comments.
2. 256. The Committee takes due note of the Government's commitment to persevere in its conciliation efforts to bring about an agreement between the two unions concerned, so that the workers concerned can freely choose their representatives. The Committee requests the Government to keep it informed of future developments in this respect.
3. 257. As regards the cases of Messrs. Grech and Formosa, the Committee observes that, contrary to the complainant's allegation that these employees were financially disadvantaged when assigned to day-duty postings, they earned more extra pay after than before the strike (22 per cent and 9 per cent respectively). From the information available it cannot be said that these employees were placed at a distinct financial disadvantage as compared to their shift-working colleagues, as initially alleged by the complainant.
4. 258. The Committee further notes that Mr. Stafrace was never dismissed, suspended or laid-off. Rather, another officer was detailed when Mr. Stafrace failed to report to a place of work (a third party contractor), to which he had been initially assigned. According to the Government, this did not in any way affect his normal employment or attendance. Again, the Committee must conclude on the basis of the available information that the employee concerned was not discriminated against for anti-union motives.
5. 259. The Committee had also requested information about the judicial protest filed by the GWU under section 18(4) of the Industrial Relations Act, 1976, hoping that the outcome of these proceedings would throw additional light on the general context of the case, and would help it in reaching conclusions, even though the three employees mentioned above were not named parties to the lawsuit. It now appears from the information supplied by the Government that the GWU has not followed up on this matter, although a reply to the protest has been filed.
6. 260. In the circumstances, and without further evidence substantiating the complaint, the Committee would draw the Government's attention to the importance of forbidding and penalising in practice all acts of anti-union discrimination, such as dismissals, transfers or other prejudicial measures. This is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have an assurance that they will not be prejudiced on account of the mandate which they hold from their trade unions.

The Committee's recommendations

1. 261. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
   • (a) The Committee draws the Government's attention to the importance of forbidding and penalising in practice all acts of anti-union discrimination in respect of employment such as dismissals, transfers or other prejudicial measures. This is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have an assurance that they will not be prejudiced on account of the mandate which they hold from their trade union.
   • b) The Committee requests the Government to keep it informed of the future developments concerning the union representation structure within the Customs and Excise Department.