ACT No. XVI of 2007 AN ACT to amend the Port Workers Ordinance (Cap. 171) BE IT ENACTED by the President, by and with the advice of the House of Representatives, in this present Parliament assembled, and by the Authority of the same as follows>-

I assent.

E DWARD F ENECH A DAMI

(L.S.)

President

27th July, 2007

ACT No. XVI of 2007

AN ACT to amend the Port Workers Ordinance (Cap. 171)

BE IT ENACTED by the President, by and with the advice of the

House of Representatives, in this present Parliament assembled, and by

the Authority of the same as follows>-

(1) The short title of this Act is the Port Workers Ordinance Short title and

coming into force.

(Amendment) Act, 2007, and it shall be read and construed as one with

the Port Workers Ordinance, hereinafter referred to as “the principal

law”.

(2) This Act shall be deemed to have come into force on 1st

June, 2007.

Article 2 of the principal law shall be amended as follows>

Amendment of

article 2 of the

principal law.

(a) the definition “Board” shall be substituted by the

following definition>

“ “Board” means the Port Workers Board established

under article 10<”<

(b) the definition “Council” shall be deleted<

(c) immediately after the definition “Director” there shall

be inserted the following new definition>

“ “employer of port workers” means a person so

authorized or licensed by the Authority in accordance with

the provisions of the Malta Maritime Authority Act to provide

services including the loading, unloading, transshipment,

storage and the movement of general cargoes and other

materials in a port and includes a terminal operator<”<

(d) the definition “port worker” shall be substituted by the

following definition>

“ “port worker” means a person employed in a port in

the provision of services of a temporary nature involving the

handling of cargo in the process of loading or unloading cargo

on or from a ship, from or to any place on shore, a person so

employed or authorized by the Authority or so employed by

an employer of port workers to handle cargo in a warehouse

and a person employed in the handling of cargo, as the

Minister may from time to time prescribe, from a transit shed

or stack or open quay to vehicle or in the consolidation,

groupage or dismantling of goods in or from a unit load in a

port, and “port work” for the purposes of this Act shall be

construed accordingly.”< and

(e) immediately after the definition “prescribed” there shall

be inserted the following new definition>

“ “Service Level Agreement” means an agreement

concluded between port workers and employers of port

workers in connection with the provision of services by port

workers<”.

Sub-article (3) of article 3 of the principal law shall be deleted

and sub-articles (4) and (5) thereof shall be renumbered (3) and (4)

respectively.

In article 4 of the principal law, immediately after sub-article

(5), there shall be inserted the following new sub-article>

“(6) In order to ensure safety, increase in efficiency and

develop flexibility, it shall be the duty of port workers to undergo

periodic training programmes as is considered necessary.”.

Article 7 of the principal law shall be substituted by the Substitution

article 7 of the

following>

principal law.

(1) There shall be established a Port Work Appeals

“Establishment

Board, hereinafter referred to as “the Appeals Board”, which

shall exercise and perform functions assigned to it by this

Ordinance.

(2) The Appeals Board shall be appointed by the

Minister and shall consist of a Chairman of recognized

standing and two members being persons who in the opinion

of the Minister have experience in maritime, financial or

administrative matters. The Minister shall also appoint a

person to act as a secretary to the Board with no voting powers.

(3) The Chairman and members of the Appeals

Board shall be appointed for a period of three years and shall

be eligible for reappointment.

(4) The Chairman and members of the Appeals

Board shall have no direct financial or other interests in matters

concerning the management of ports and may be challenged

or abstain for any of the reasons for which a judge may be

challenged or abstain in accordance with the Code of

Organization and Civil Procedure. In such cases the Minister

shall appoint a person, having the qualifications of the

Chairman or members challenged or abstaining, to sit in

substitution.

(5) A judge, or magistrate or a member of the

House of Representatives or of the European Parliament or

of a Local Council shall be disqualified from being appointed

or acting as Chairman or member of the Appeals Board as

long as he holds that office.

(6) The Chairman and members of the Appeals

Board shall for a period of one year following the termination

for whatever reason of his appointment not engage in any

activity which because of conflict of interest would have been

incompatible with the exercise of his functions. Any person

who acts in breach of this sub-article shall be guilty of an

offence against this Ordinance and shall, on conviction, be

liable to a fine (multa) of not less than one thousand liri and

not more than five thousand liri.

(7) The procedures, offences, and other similar matters

concerning the Appeals Board shall be regulated by the

provisions of the First Schedule to this Act which may be

amended by regulations made by the Minister from time to

time>

Provided that any offence provided for in regulations

made under this sub-article shall not be liable to a fine (multa)

of more than one thousand liri or to imprisonment for a period

of not more than six months or to both such fine and

imprisonment.”.

6. Article 8 of the principal law shall be substituted by the

following>

(1) The functions of the Appeals Board shall be

“Functions of

the following>

(a) to hear appeals by employers of port workers

or port workers for a review of any decision or directive

taken by the Authority with regards to the tariffs for

transshipment operations< and

(b) to decide upon any dispute as may be referred

to it by the Minister regarding transshipment tariffs.

(2) Any decision or directive issued by the

Authority relating to transshipment tariffs payable to port

workers shall only come into effect fifteen days after being

officially communicated to the port workers and the employers

of port workers concerned in order to allow for possible

appeals under sub-article (1) of this article>

Provided that>

(a) if no appeal as aforesaid is filed during the

said period of fifteen days the decision of the Authority

shall come into effect immediately after the lapse of the

abovementioned period of fifteen days< and

(b) if an appeal as aforesaid is filed the decision

or directive of the Authority shall not come into force

until the appeal is finally determined by the Appeals

Board.

(3) A decision taken by the Appeals Board relative

to an appeal made under sub-article (1) shall be final and

binding.

(4) In arriving at a decision on an appeal under

sub-article (1), the Appeals Board shall seek to balance the

application of the following principles, namely that –

(a) tariffs charged are based on sound economic

and commercial facts, including consideration of the

interests of consumers and industry in general and other

parties involved in port activity, including, where

applicable, the rate of inflation since the charges were

last revised, and any other relevant unexpected economic

circumstances<

(b) tariffs shall be reasonably related to costs,

including depreciation and a return on capital employed<

(c) port operators, or other persons involved in

port activity, are to be encouraged to invest in port

facilities to meet demand<

(d) tariffs should be comparable to those levied

at other ports competing with Malta<

(e) the achievement of service standards

especially those applicable internationally.”.

7. Paragraph (a) of sub-article (2) of article 9 of the principal Amendment of

article 9 of the

law shall be substituted as follows>

principal law.

“(a) except where otherwise provided in a Service Level

Agreement, supply, in accordance with such system as is

established in an order which is in force under article 11, and subject

to such conditions as may be prescribed, port workers to any port

work authorized by the Director in such numbers, order and priority

as may be determined by the Director<”.

8. Article 10 of the principal law shall be substituted by the Substitution of

article 10 of the

principal law.

(1) There shall be established a Port Workers

Board,

hereinafter referred to as “the Board”, which shall

exercise and perform the functions assigned to it by this

Ordinance.

(2)

The Board shall consist of the following

members>

(a) a Chairman of experience in, amongst other

matters, port matters appointed by the Minister<

(b) two members nominated by the employers of

port workers<

(c)

two members nominated by the port workers<

(d) a secretary with no voting powers to be

appointed by the Minister.

(3) The Chairman and members of the Board shall

be appointed by the Minister for a period of three years and

shall be eligible for reappointment>

Provided that where the employers of port workers or

the port workers fail to nominate the members at paragraphs

(b) and (c) of sub-article (2) hereof, the Minister may proceed

to appoint the members he deems fit, but who have the

qualifications and, or experience to act in the capacity of their

representation on the Board.

(4) Where it appears to the Minister that more

than one Board is required to deal with the volume of work

involved, he shall take such action as he considers necessary

in accordance with this Ordinance to appoint more than one

Board depending on the prevailing case load before the main

Board, and, for these purposes, he may direct that such Board

or Boards be appointed for a specific term as he deems fit of

three year or less.”.

9. Article 11 of the principal law shall be substituted by the

following>

(1) The functions of the Board shall be –

“Functions of

(a) the discipline of port workers other than

disciplinary measures contemplated in the relative

Service Level Agreements<

(b) the review from time to time as provided by

regulations issued under the Ordinance of the

complement of port workers required by employers of

port workers to satisfy the demands of industry<

(c) the selection of persons eligible to fill a

vacancy for a port worker in accordance with regulations

issued under the Ordinance<

(d) to determine –

(i) the conditions of employment of port

workers including tariffs related thereto<

(ii) the system under which port workers

shall be supplied to employers of port workers for

any port work<

(iii) the organization of port workers>

Provided that the Board shall not exercise the

functions specified in paragraph (d) above where it

is specifically agreed to in writing between

employers of port workers and port workers in the

determination of the matters specified in the said

paragraph shall be done in any other manner<

(e) to advise the Authority on such matters

relating to labour in the port as may be referred to the

Board from time to time<

(f) to make recommendations to the Director

concerning the deregistration from the Port Workers

Register of persons working at a port in accordance with

paragraphs (b), (c) and (d) of sub-article (1) of article 14

hereof< and

(g) to perform such other functions as may be

prescribed.

(2) Without prejudice to the provisions of any

other law, in cases falling under paragraph (a) of sub-article

(1) hereof, in the event that a person is convicted of theft

committed during or in connection with port work or

contravenes or fails to comply with the provisions of this

Ordinance, or grossly misbehaves or misconducts himself in

the course of or in connection with his port work, then, without

prejudice to the provisions of article 18, or to the provisions

of any other law, the Board may -

(a) suspend him from work for a period not

exceeding three months< or

(b) give him a fortnight’s notice of cancellation

of his registration< or

(c)

cancel his registration forthwith.

(3) The conclusions of the Board relative to

matters under sub-article (1) (d) and (e) hereof shall be by

agreement between the representatives of employers of port

workers and of the port workers on the Board.

(4) If the two sides are unable to agree on matters

under sub-article (1) (d) and (e) hereof, they may agree to

refer the question for a decision by an umpire appointed by

the Minister responsible for labour upon their joint

recommendation.

(5) The Board shall take all decisions by majority

vote in accordance with the provisions of the Second Schedule.

(6) Without prejudice to any right of appeal to

the Port Work Appeals Board where such right exists, any

conclusion of the Board relating to any tariff or to the

conditions of employment of port workers or to the supply of

port workers and any other matter which in the opinion of the

Chairman of the Board involves principles of importance, shall

be submitted to the Minister for approval and when approved

by him shall be published by order in the Gazette and shall be

binding on all employers of port workers and on port workers

from the date of publication as may be appointed by the

Minister<

Provided that the Minister may delegate in writing the

powers conferred upon him by this sub-article to a public

officer or to an officer in the Authority>

Provided further that the Minister may recall for his own

determination on any matter that may be pending before the

Board.

(7) Nothing in this article shall preclude recourse

to conciliation or arbitration proceedings under the provisions

of the Act, and, or any other relevant law, where the employers

of port workers side and the workers’ side have failed to reach

agreement under sub-articles (3) and (4) hereof.

(8) A memorandum of the terms of a settlement

of a trade dispute made in accordance with the provisions of

the Act, and, or such other relevant law, shall, for the purposes

of this Ordinance, be deemed to be an order made and

published under sub-article (6), and, notwithstanding the

provisions of the Act, and, or such other relevant law, such

memorandum, award or decision may be superseded by an

order made by the Minister publishing an approval by him of

a determination or decision arrived at in accordance with the

provisions of sub-articles (3), (4) or (5) hereof.”.

10. Article 12 of the principal law shall be substituted by the Substitution of

article 12 of the

following>

principal law.

(1) Notwithstanding the provisions of article 11,

the Board shall also decide on specific disputes which may

arise between the employers of port workers and port workers

in connection with port work in accordance with –

(a) conditions of employment established in an

order which is in force under the provisions of paragraphs

(d) and (e) of article 11< or

(b) such standards as may seem reasonable to the

Board, where no such conditions of employment are

applicable to a particular dispute>

Provided that where a Service Level Agreement has

established procedures under which a particular dispute

between an employer of port workers and port workers

can be resolved, the Board may decide not to take

cognizance of any such dispute referred to it if it

considers that all procedures under the said Service Level

Agreement have not been exhausted.

(2) Any decision given by the Board shall be final

and binding in respect of the particular dispute but it shall not

have the force of approved conditions of employment for the

purposes of any future dispute of a similar nature.

(3) Every decision of the Board under this article

shall be distributed to the parties involved in the dispute.

(4) Unless the Minister directs otherwise, the

procedures relative to matters under this article shall be

regulated by the provisions of Part Two of the Second

Schedule, which provisions may be amended by regulations

made by the Minister from time to time.”.

11. Article 13 of the principal law shall be substituted by the

following>-

Subject to the provisions of article 12 (4), the

“Procedures of

procedures

and other similar matters concerning the Board

shall otherwise be regulated by the provisions of the Second

Schedule, which provisions may be amended by regulations

made by the Minister from time to time.”.

Article 14 of the principal law shall be amended as follows>-

12. (a) in sub-article (1), for the words “registration of a port

worker” there shall be substituted the words “registration of a

person in the Port Workers Register”<

(b) sub-article (2) thereof shall be deleted<

(c) sub-article (3) thereof shall be re-numbered as sub-article

(2)< and

(d)

sub-articles (4) and (5) thereof shall be deleted.

13. In sub-article (1) of article 15 of the principal law for the

words “sub-article (3)” there shall be substituted the words “sub-article

Article 17 of the principal law shall be amended as follows>

(a) in paragraph (a) thereof, the words “or to the contractor

in respect of the services of foremen employed by him” shall be

deleted< and

(b) in paragraph (f) thereof, for the words “Port Disputes

Board” there shall be substituted the words “Port Workers Board”.

For the First Schedule to the principal law there shall be

substituted the following>

“FIRST SCHEDULE

Article 7 (7)

PROCEDURES OF THE PORT WORK APPEALS BOARD

1. (1) Subject to the provisions of paragraph 3 hereof, an appeal

in accordance with the provisions of article 8 of this Ordinance shall be

made by the applicant and shall be filed with the secretary of the Port

Work Appeals Board in a written form by registered post or delivered

by hand to the secretary.

(2) An appeal under paragraph (1) hereof shall contain the

following main information –

(a) the details concerning the appeal with relevant

supporting documentation annexed as necessary<

(b) a brief statement of facts, and

(c)

the grounds of the appeal.

(3) The application for an appeal shall be filed with the

secretary of the Board in triplicate, a copy of which shall by not later

than three days be served separately through the secretary on the

Authority and on any other affected party.

(4) The Chairman of the Board may, at any time, allow an

amendment to be made in the application only for the purpose of making

it clearer>

Provided that the Chairman shall not take cognizance of such

amendments on grounds other than those submitted in the first

application.

(5) Whenever a copy of an application of appeal is served

on the Authority or any other affected party in accordance with paragraph

(3) hereof, the Authority, or any other affected party, shall file with the

secretary of the Board within the time limit indicated by the Chairman

in his communication (which in no case shall exceed fifteen days) a

reply in duplicate stating the reasons for contesting the appeal, one copy

of which shall by not later than three days be served by the secretary on

the applicant.

(6) The Chairman of the Board shall as soon as practicable

appoint a day for the hearing of the appeal, which saving as the Chairman

may otherwise direct for reasons of commercial confidentiality, be heard

in public.

(7) Nothing shall prevent the Board, either before the

hearing or at any time during the hearing of an appeal, from summarily

dismissing or disallowing an appeal without hearing it or without hearing

any further, as the case may be, on the grounds that the appeal is frivolous

or vexatious or one that should not have been brought or made before

it.

(8) Notice, warrants, orders issued by the Board shall –

(a) be signed by the Chairman and countersigned by the

secretary<

(b) be delivered by registered mail or by any other form

that the Chairman may determine.

(9) In conducting its proceedings, the Board shall ensure –

(a) that the affairs of the Board and its proceedings are

carried out in an impartial and transparent manner<

(b) that the proceedings are concluded within a reasonable

time<

(c) that the final decision is signed by the Chairman, and

the original is kept in the registry of the Board with the complete

record of the proceedings of the case<

(d) that the final decision is concurrently submitted by the

Chairman of the Board to the Minister and the Chairman of the

Authority.

(10) If considered necessary, the Chairman of the Board

may summon witnesses, appoint experts to assist the Board, and, where

applicable, hear evidence on oath.

(11) The Board may at its own discretion order any party,

or parties, to an appeal before it to bear the reasonable costs related to

the Board’s performance of its functions under these regulations,

including, where applicable, the costs of retaining appropriate

consultants and, or experts necessary to carry out their duties and

functions in a proper manner. The Board may, when delivering its

decision, also determine which, or in what proportion, are the parties to

pay such costs.

(12) The Board shall endeavour to determine an appeal

within forty days from the date of the first submission of the appeal by

an applicant>

Provided that the Minister may for valid reasons establish

further extensions for the Board to conclude its deliberations after

application by the Chairman of the Board.

(13) With regard to the conduct of proceedings before it,

the Board shall have all the powers that are vested by the Code of

Organization and Civil Procedure in the Civil Court, First Hall.

(14) Any person –

(a) who fails to provide the Board with the relevant

information requested within the time specified in a written notice,

and, or

(b) who knowingly provides false information to the Board,

shall be guilty of an offence under this Ordinance.

(15) A person who –

(a) commits an offence under paragraph (14) (a) of this

Schedule shall be liable, on conviction, to a fine (multa) not

exceeding two hundred and fifty liri, and, in the case of a second

offence or subsequent offence, to a fine (multa) not exceeding five

hundred liri<

(b) commits an offence under paragraph (14) (b) of this

Schedule shall be liable, on conviction, to a fine (multa) not

exceeding one thousand liri or to imprisonment for a term not

exceeding six months or to both such fine and imprisonment.”.

For the Second Schedule to the principal law there shall be Substitution of the

Second Schedule to

substituted the following>

the principal law.

“SECOND SCHEDULE

Articles 12 and 13

PROCEDURES OF THE PORT WORKERS BOARD

PART ONE

With regard to matters falling under paragraphs (a) and (f) of

article 11 (1)

1. (1) The Board shall hold its sittings in public and have the

power to –

(a)

summon witnesses<

(b) take expert advice<

(c) administer oaths, which shall be administered by the

Chairman of the Board< and

(d) require any person who appears to it to have special

knowledge of the matter under consideration to furnish orally or

in writing such particulars in relation thereto as the Board may

require.

(2) In the exercise of its powers, the Board shall have the

powers which are conferred by Law on the First Hall of the Civil Court>

Provided that -

(a) the Board shall not in any case be enabled to order the

detention of any person< and

(b) the duties of a court usher and of a court marshal

respectively shall be performed by members of the Executive Police

detailed for the purpose by the Commissioner of Police.

(3) Any fine inflicted by the Board shall be recoverable by

the Authority as a civil debt due to it.

(4) Every summons shall be signed by the Chairman of the

Board and may be served either personally or by registered post, and in

the latter case, in proving service, it shall be sufficient to prove that the

summons was properly addressed and posted.

(5) The meetings of the Board shall be called by the

Chairman as often as is necessary.

(6) The minutes of the meetings shall be kept by the

secretary and approved at a meeting of the Board. All approved minutes

are to be signed by the Chairman.

(7) Half the number of members for the time being

constituting the Board shall form a quorum. Decisions shall be adopted

by a simple majority of the votes of the members present and voting.

The Chairman shall have an initial vote and in the event of an equality

of votes, a casting vote.

(8) The Board shall give the person appearing before it the

opportunity of presenting his case.

(9) During the proceedings the person appearing before the

Board shall be allowed to be represented by a person of his own choice.

(10) Subject to the provisions of sub-article (2) of article

14 and the provisions of sub-article (2) of article 15, the decisions of

the Board shall otherwise be final.

(11) The Board may otherwise regulate its other procedures.

PART TWO

With regards to matters falling under paragraphs (b), (c), (d) and (e)

of article 11 (1) and matters under article 12

1. (1) Subject to the provisions of paragraph (4) hereof, the

meetings of the Board shall be called by the Chairman as often as may

be necessary on his own initiative or at the request of any of the members

of the Board, but the Board shall meet at least once a month to discuss

any matter of interest related to port work as part of its functions under

paragraphs (b), (c), (d) and (e) of article 11.

(2) Half the number of members for the time being

constituting the Board shall form a quorum.

(3) Subject to the provisions of sub-articles (3), (4) and (5)

of article 11 and sub-article (2) of article 12 of the Ordinance, all other

decisions of the Board shall be by a simple majority of the votes of the

members present and voting. For this purpose the Chairman shall have

an initial vote and in the event of an equality of votes, a casting vote.

(4) In matters falling under article 12 concerning work

disputes at a port, the Board shall be convened following delivery to

the secretary of the Board of a notice in writing stating that a specific

dispute has arisen between an employer, or employers, of port workers

and port workers. The notice shall state the nature of the dispute and

shall be signed by the person, or persons, referring the matter to the

Board.

(5) When delivering the notice referred to in paragraph (4)

hereof, the person delivering the notice shall be required to deposit with

the secretary a sum of fifty liri representing the fee relative to the meeting

of the Board. The Board, may, when delivering its decision, determine

which, or in what proportion, are the parties to pay the said costs.

(6) In matters falling under article 12, the Board shall be

empowered to –

(a)

summon witnesses,

(b) administer oaths, and

(c) require any person who appears to it to have special

knowledge of the matter under consideration to furnish orally or

in writing such particulars in relation thereto as the Board may

require.

(7) Oaths shall be administered by the person chairing the

(8) In the exercise of the powers in accordance with the

provisions of paragraph (6) (a) and (b) hereof, the Board shall have the

powers that are conferred by law on the First Hall of the Civil Court>

Provided that –

(a) the Board shall not in any case be enabled to order the

detention of any person, and

(b) the duties of a court usher and of a court marshal

respectively shall be performed by members of the Executive Police

detailed for the purpose by the Commissioner of Police.

(9) Any fine inflicted by the Board shall be recoverable by

the Authority as a civil debt due to it.

(10) Every summons under article 12 shall be signed by

the Chairman and may be served personally or by registered post, and,

in the latter case, in proving service, it shall be sufficient to prove that

the summons was properly addressed and posted.

(11) Any claim arising out of a dispute between an employer

of port workers and port workers under article 12 shall –

(a) be rejected by the Board if the person or persons making

such a claim, when duly summoned to appear before the Board,

fails or fail to appear before it without any valid reason within one

hour of the time fixed for the hearing of the claim<

(b) be deemed to have been admitted by default if the Board

is satisfied that the person or persons against whom the claim is

brought had failed to appear before it without any valid reason

within one hour of the time fixed for the hearing of the claim.

(12) The minutes of the meetings shall be kept by the

secretary after being confirmed at a meeting of the Board and signed by

the Chairman.

(13)

The Board shall otherwise regulate its other

procedures.”.

The Third Schedule to the principal law shall be deleted.

(1) The retrospectivity of the provisions enacted by this

Act shall not affect the validity of anything done during the period in

respect of which this Act is brought into force retrospactively under the

principal law as in force prior to the coming into force of this Act.

(2) The Port Workers Board as established prior to the

coming into force of the amendments to the principal law enacted by

virtue of this Act may continue to carry out the functions, as assigned

to it under the principal law as in force prior to the coming into force of

this Act until such time when the Port Workers Board is established in

terms of article 10 of the principal law as amended by this Act and

nothing done by the said Board shall be deemed to be invalid due to the

fact that it was done after the coming into force of this Act.

Passed by the House of Representatives at Sitting No. 553 of 18th July, 2007.

A NTON T ABONE

Speaker

R ICHARD J. C AUCHI

Clerk to the House of Representatives