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Workplace Representation

In Malta it is the union – provided it is recognised by the employer – that normally represents the employee at workplace level. But EU directives have led to new arrangements for non-unionised employees. But it does not seem that these have been taken up to any extent. In addition, they still give clear primacy to the union, as they disappear if a union is established.

Workplace representation in Malta is primarily through the union. The Employment and Industrial Relations Act (EIRA 2002), the key piece of industrial relations legislation specifically states that, “employee representative … means the recognised union representative” (recognised means that the employer negotiates with the union). Only where there are no unions present does the legislation provide for an alternative. EIRA 2002 states that that in the case of non-unionised employees, [employee representative] shall mean such representative duly elected from amongst the non-unionised employees, by means of a secret ballot called for such purpose by the director [of the government agency responsible for industrial relations].”

 

This addition is in large part to meet the requirements of EU directives covering the provision of a general framework for information and consultation, as well as information and consultation in cases of redundancy and business transfer. In all three cases, arrangements have been made to allow non-unionised employees to be represented. There is no detailed information on the extent to which these arrangements have been used, although it seems that the take up has been very limited.

 

The starting point for most representation through the union is that the union should be recognised, in other words that the employer should be willing to negotiate with the union. This was previously a practical question of the strength of the union and the attitude of the employer, with employers normally willing to recognise a union, if it could show that a majority of the workforce were union members. In addition, the Department of Industrial and Employment Relations (a government body) was sometimes involved when recognition was disputed between unions. However, since December 2016, when the Recognition of Trade Unions Regulations came into force, trade union recognition has been regulated by law.[1]

 

The details of these new rules are set out in the section of collective bargaining. However, in broad terms where a union can show that more than 50% of the employees of an organisation are its members the employer must recognise it. In some cases, there is a further ballot of union members. But this is only when there are two unions involved, either where an existing recognised union is challenged by another, or where two unions can both show they have more than 50% of the employees in membership – possible where employees are members of more than one union. In these cases a ballot of union members decides which union has recognition.

 

In two specific instances, covering collective redundancies and business transfers, the union has a role even if it is not recognised. Here the EIRA 2002 legislation states that the employer has a duty to inform and consult the “employees’ representatives”. If the union is recognised, then it is informed and consulted. If there are union members but no recognition, then the union represents unionised employees. Non-union employees elect their representative in a secret ballot.

 

In the more general area of information and consultation, where structures need to be permanent rather than linked to a specific occurrence – such as redundancy or transfer – legislation, introduced in 2006, has provided for additional structures. (These structures are subject to an employment threshold – see below.)

 

Unionised employees, where the union is recognised, are represented by their union in terms of their information and consultation rights. But, if there are categories of workers who are not represented by the recognised union or unions, they elect their own representatives who, together with the union representatives, enjoy general information and consultation rights. The same rules apply if there are no unions in the company at all.

 

The legislation also guarantees the primacy of the union structures. If a union is later recognised for a group of workers who were previously not covered by a recognised union, the term of office of any non-union representatives elected under the 2006 legislation ends, and they are replaced by union representatives.

 

Despite the potential for non-unionised structures for information and consultation to emerge through this legislation, the reality of employee workplace representation in Malta at present is that it either takes place through the union or it does not take place at all.

 

Figures from Eurofound’s 2013 European Company Survey indicate that employee representation at workplace level is relatively limited. In 2013, only 14% of establishments in Malta with at least 10 employees had some form of employee representation, in all cases through trade union representatives. This is less than half the EU28 average of 32%.[2] The proportion is higher in larger workplaces (250 employees and above), where 66% had union representation. In workplaces with between 10 and 49 employees, the figure was 10%.

 

Numbers and structure

 

The number and structure of local union organisation at the workplace is an issue for the unions involved to determine. Generally, a union appoints a representative, often called a shop steward, for every 50 employees who are registered as members with the union.  In bigger companies, there will often be a core group of four shop stewards to discuss major issues with management.

 

The 2006 legislation, requiring the setting up of information and consultation structures, applies to companies with 50 or more employees.

 

The legislation does not set out the precise numbers of information and consultation representatives, only that as well as the representatives of the recognised union – number unspecified – “no more than one representative” should be elected for each category of employees not represented by a recognised union.

 

Tasks and rights

 

The key tasks of the local union workplace organisation are to discuss and deal with day-to-day issues with management as well as representing union members facing difficulties with the employer. The union representative also takes an active role in collective bargaining and may be one of the signatories or a witness to the signature of a collective agreement.

 

As a result of the transposition of EU directives, union representatives should also be informed and consulted on a range of issues. The 2006 legislation requires them to be informed about the company’s “activities and economic situation” and to be informed and consulted about the “situation, structure and probable development of employment” as well as being informed and consulted about “decisions likely to lead to substantial changes in work organisation or in contractual relations”. This phrasing is taken verbatim from the directive, and it is unclear how far it has led to changes in practice. Union representatives should also be consulted about redundancies and business transfers.

 

The same information and consultation requirements also apply to non-union representatives.

 

Election and term of office

 

In the case of union representatives, the election and term of office depend on the union’s rules.

 

In the case of non-union representatives for information and consultation, they should be elected in a secret ballot organised by the employer, with the Department of Industrial and Employment Relations being informed about the procedure and potentially able to intervene if there are complaints. There are no special nomination requirements for candidates, although any candidate standing must have passed his or her probationary period.

 

The term of office of these non-union representatives is three years, although, as already noted, their term of office is terminated if subsequently a union is recognised for the group of employees they represent.

 

In the case of non-union representatives for consultation on redundancy and transfer, the ballot to choose them is organised by an official of the appropriate ministry. Their term of office is limited by the length of time consultation over the redundancy or transfer lasts.

 

Protection against dismissal

 

Dismissal for union membership is unlawful, as is dismissal for acting as an employees’ representative – in most cases as a workplace trade union representative.

 

The 2006 legislation on information and consultation also provides protection for elected information and consultation representatives. They enjoy the same protection as other employee representatives and in particular they should not “suffer any detriment, including dismissal” for their activities.

 

Time off and other resources

 

Collective agreements may provide for time off and specific resources for trade union organisations. Otherwise there is no general provision.

 

The one exception is the 2006 legislation on information and consultation. It provides that information and consultation representatives have a right to “reasonable time off with pay” during working hours to perform their functions as representatives.

 

Training rights

 

Trade unionists and employee representatives do not have a statutory right to participate in training

Representation at group level

 

The legislation does not provide for group level representation.

[1] See https://dier.gov.mt/en/Industrial%20Relations/Registrar%20of%20Trade%20Unions/Pages/Trade-Union-Recognition.aspx (Accessed 24.04.2020)

[2] Eurofound (2015), Third European Company Survey – Overview report: Workplace practices – Patterns, performance and well-being, Figures for Table 44

L. Fulton (2021) National Industrial Relations, an update (2019-2021). Labour Research Department and ETUI (online publication). Online publication available at http://www.worker-participation.eu/National-Industrial-Relations.