ACT No. XXXIIII of 2016 AN ACT to amend the Employment and Industrial Relations Act, BE IT ENACTED by the President, by and with the advice and consent of the House of Representatives, in this present Parliament assembled, and by the authority of the same as follows:-

I assent.

M ARIE- L OUISE

(L.S.)

C OLEIRO P RECA

President

28th June, 2016

ACT No. XXXIIII of 2016

AN ACT to amend the Employment and Industrial Relations Act,

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

consent of the House of Representatives, in this present Parliament

assembled, and by the authority of the same as follows:-

The short title of this Act is the Employment and Industrial

Relations (Amendment) Act, 2016, and this Act shall be read and

construed as one with the Employment and Industrial Relations Act,

hereinafter referred to as "the principal Act".

Sub-article (3) of article 3 of the principal Act shall be

amended as follows

(a)

in paragraph (c) thereof, for the words "to the Board

by the Minister." there shall be substituted the words "to the

Board by the Minister;"; and

(b) immediately after paragraph (c) thereof there shall

be added the following new paragraph

"(d) to carry out the functions assigned to it by

article 73 and any other function that may be assigned to

it by law from time to time.".

Article 73 of the principal Act shall be amended as

follows

(a)

paragraph (b) of sub-article (2) thereof shall be

deleted;

(b) paragraph (c) of sub-article (2) thereof shall be

renumbered as paragraph (b);

(c) in paragraph (b) of sub-article (3) thereof, for the

words "to represent, so far as may be equally, the interests in

dispute" there shall be substituted the words "so that due to their

different experiences they shall bring to the Tribunal

knowledge, so far as may be equally, of the interests in the

dispute";

(d)

for paragraph (c) of sub-article (5) thereof, there

shall be substituted the following

"(c) a member chosen by the Chairperson of the

Tribunal from a list of persons appointed by the Minister

from amongst persons nominated by entities in the

public sector.";

(e) for sub-article (6) thereof there shall be substituted

the following

"(6) (a)

The chairpersons of the Tribunal shall be

appointed by the Prime Minister for a period of five

years.

(b)

The members of the Tribunal shall be

appointed by the Minister for a period of five years;

(c)

A person shall not be qualified to be

appointed as chairperson or as member of the Tribunal,

if such person

(i)

is a Member of the House of

Representatives or of the European Parliament; or

(ii)

is a Member of a Local Council; or

(iii)

is an undischarged bankrupt; or

(iv)

has been sentenced by any court to

effective imprisonment for any term or has been

found guilty by any court of any of the crimes

listed in Titles III, V or VI of Part II of Book First

of the Criminal Code.

(d)

The Prime Minister may, after

consultation with the Employment Relations Board,

remove a member from the list appointed in accordance

with sub-article (2), for reasons of proved misbehaviour,

manifest inefficiency, or inability to perform his or her

functions whether due to an impairment of mind or body.

The decision to remove such a member shall include

reasons and shall be subject to a right of appeal on a

point of law against the Prime Minister to the Court of

Appeal by such member. The appeal shall be filed within

twenty days from the date when the said member is

notified of the decision. The rules of the Code of

Organization and Civil Procedure regulating the hearing

and determination of appeals from judgements of the

First Hall of the Civil Court shall mutatis mutandis apply

to such appeal.

(e)

The Minister may, after consultation with

the Employment Relations Board, remove a member

from the list appointed in accordance with sub-article (3)

(b), for reasons of proved misbehaviour, manifest

inefficiency or inability to perform his or her functions

whether due to an impairment of mind or body. The

decision to remove such a member shall include reasons

and shall be subject to a right of appeal on a point of law

against the Minister to the Court of Appeal by such

member. The appeal shall be filed within twenty days

from the date when the said person is notified of the

decision. The rules of the Code of Organization and

Civil Procedure regulating the hearing and

determination of appeals from judgements of the First

Hall of the Civil Court shall mutatis mutandis apply to

such appeal.

(f)

The chairpersons and the members of the

Tribunal may, when their term of office, whether it be

the first one or otherwise, expires, be re-appointed for

another term of five years

Provided that such re-appointment, prior to

being made, shall be proposed to the Employment

Relations Board and

(i)

the re-appointment of a chairperson

shall not be made if two thirds of the members of

the Employment Relations Board are against such

reappointment;

(ii)

the re-appointment of a member from

the list of persons appointed by trade unions

represented on the Malta Council for Economic and

Social Development shall not be made if it does not

receive the prior approval of at least fifty percent of

all the members of the Employment Relations Board

that have been nominated on such Board as

representatives of the employees;

(iii)

the re-appointment of a member from

the list of persons appointed by employers’

associations and other organisations that represent

the employers shall not be made if it does not receive

the prior approval of at least fifty percent of all the

members of the Employment Relations Board that

have been nominated on such Board as

representatives of the employers.";

(f)

for sub-article (7) thereof, there shall be substituted

the following

"(7) (a)

The Prime Minister may, from time to

time, if he thinks fit and after consultation as provided in

sub-article (2) add to the list provided for it in the said

sub-article.

(b)

The Minister may, from time to time, if

he thinks fit request new nominations from trade unions

and associations and organisations of the employers

mentioned in paragraph (b) of sub-article (3) for the

purpose of increasing the lists mentioned in the said

paragraph.";

(g) immediately after sub-article (9) there shall be

added the following new sub-article

"(10) (a) The chairpersons and the members of the

Tribunal shall receive such remuneration as the Prime

Minister may establish by notice in the Gazette. Such

remuneration may be fixed at an amount per year or at

an amount for every hearing held or at an amount for

every decided case. Once the remuneration has been

established it shall not be reduced but the change in

criteria for calculating the remuneration between the

criteria mentioned in this paragraph provided that it is

made in regards to all the chairpersons and members

shall not be deemed to constitute in itself a reduction in

the remuneration.

(b)

During their term of appointment the

chairpersons and the members of the Tribunal shall not

appear before the Tribunal in the exercise of their

profession or to assist any parties.

(c)

The chairpersons and the members of the

Tribunal shall prior to the hearing of every case declare

to the Secretary of the Tribunal any interest that they

may have in the procedures and the Secretary shall,

when in his opinion such interest may prejudice the

independence of the chairperson or of the member

concerned, appoint another chairperson or member in

accordance with the lists mentioned in sub-articles (2)

and (3) respectively

Provided that nothing in this paragraph shall be

construed as diminishing the right of the parties in a case

before the Tribunal to request the challenge of a

chairperson or of a member.

(d)

Nothing in this Act shall be construed as

exempting any person forming part of the Tribunal from

the duty to act with independence and impartiality

according to law and not to be subject to the direction or

control of any other person or authority in the

performance of his judicial duties on the Tribunal and this

irrespective of the procedure according to which or the list

from which such person shall have been appointed to

form part of the Tribunal.".

In sub-article (2) of article 76 of the principal Act the words

", in any case in which article 73(5)(c) applies, by another person

appointed ad hoc by the Prime Minister" shall be substituted with the

words "article 73(5)(c)".

In sub-article (2) of article 77 of the principal Act, for the

words "person to administer the oath for that purpose." there shall be

substituted the words "person to administer the oath for that purpose:"

and immediately thereafter there shall be added the following new

"Provided such witness, assessor, expert or any other

person, as the case may be, shall be heard in evidence and shall

be examined in a Tribunal hearing and the parties to the case

shall have the right to ask questions.".

Article 80 of the principal Act shall be amended as Amendment of

article 80 of the

follows

principal Act.

(a) Sub-articles (1) and (2) thereof shall be substituted

by the following

"(1) In giving any award, decision or advice the

Tribunal may give consideration to the social and

economic policies and to the principles of social justice

prevailing at the time of its pronouncement if it

considers that these are relevant to the determination of

the case before it.

(2) Where any matter before the Tribunal concerns

or relates to public officers the Tribunal shall abstain

from taking cognizance of any matter which is within

the functions of the said Commission.".

(b) In sub-article (3) thereof for the words "shall

endeavour to establish or maintain" there shall be substituted the

words "shall, where the Tribunal considers that it is appropriate,

take into account the maintenance of".

(1) The amendments made by this Act to the principal Transitory

Act shall apply upon their enactment so however that, without provision.

prejudice to the provisions of sub-article (2) hereunder, any person

who on the date of the coming into force of the said amendment is a

member of a panel of chairpersons or members of the Tribunal shall be

deemed to have been appointed for a period of five years

commencing from the date of his last appointment.

(2) Any person who, although no longer forming part of the

panels referred to in sub-articles (2) and (3) of article 73 of the

principal Act, shall on the date of the coming into force of this Act be

still forming part of the Tribunal for the hearing of particular cases,

shall continue to so form part of the Tribunal in accordance with the

provisions of the principal Act for a maximum period of one year from

the coming into force of this Act.

Passed by the House of Representatives at Sitting No. 406 of the

22nd June, 2016.

A NĠLU F ARRUGIA

Speaker

R AYMOND S CICLUNA

Clerk of the House of Representatives

€0.72