Agency for the Malta Philharmonic Orchestra

L.N. 254 of 2022

PUBLIC ADMINISTRATION ACT

(CAP. 595)

Agency for the Malta Philharmonic Orchestra

(Establishment) Order, 2022

IN EXERCISE of the powers conferred by article 26 of the

Public Administration Act, the Prime Minister has made the following

(1) The title of this order is the Agency for the Malta Citation and

Philharmonic Orchestra (Establishment) Order, 2022, hereinafter commencement.

referred to as "this order".

(2) This order shall enter into force on the 17th of October,

2022, hereinafter referred to as "the appointed date".

In this order, unless the context otherwise requires

Interpretation.

"Act" means, unless otherwise indicated, the Public Cap. 595.

Administration Act;

"Agency" means the Agency for the Malta Philharmonic

Orchestra established by article 3;

"Board" means the Board of Management as established by

article 4;

"Chairperson" means the Chairperson of the Board

appointed in terms of article 4(2)(a);

"Council" means the Arts Council Malta, the body

corporate established in terms of article 3 of the Arts Council Cap. 542.

Malta Act;

"Executive Head" means the Executive Head as provided

for in article 6;

"Executive Team" means the Executive Team as provided

for in article 6(3);

"financial year" means the period of twelve (12) months,

starting January 1st and ending December 31st

Provided that the financial year which commenced on

the appointed date shall terminate on the 31st December 2023;

"Gazette" shall have the same meaning as assigned to it in

article 3 of the Interpretation Act;

"Government" means, unless otherwise indicated, the

Government of Malta;

"Malta" means the island of Malta, the island of Gozo and

the other islands of the Maltese Archipelago, including its

territorial waters;

"Minister" means the Minister responsible for culture;

"National Orchestra Limited" means the National Orchestra

Limited, the private and limited liability company, with

registration number C-21996, incorporated in Malta under the

Companies Act on the 17th of October 1997;

"National Philharmonic Orchestra" means the National

Philharmonic Orchestra, formed in the year 1968 as the Manoel

Theatre Orchestra, and established in the year 1997 as the

National Orchestra, known from the year 2008 onwards as the

Malta Philharmonic Orchestra;

"Permanent Secretary" means the person, appointed in

terms of article 92 of the Constitution who is assigned and acts in

the role of Permanent Secretary as described in the Act within

the Ministry responsible for culture;

"Public Cultural Organisations" shall have the same

meaning as assigned to it in article 2 of the Arts Council Malta

Act;

"sector" means the cultural sector and refers to activities

carried out by individuals, organisations and enterprises that

operate in any of the activities listed in the Arts Council Malta

Act.

(1) There shall be a body, to be known as the Agency for

the Malta Philharmonic Orchestra, and which may also be known as

the Malta Philharmonic Orchestra, for the primary functions of

adopting and implementing the artistic strategy of the National

Philharmonic Orchestra, and to implement the objectives and perform

all those functions established in this order and to create, maintain,

organise, administer and supervise the organisation and

implementation of a portfolio of national and international cultural and

artistic events, festivals and cultural infrastructural projects related to

the functioning of the National Philharmonic Orchestra.

(2) The Agency shall be a body corporate having a distinct

legal personality and shall be capable, subject to the provisions of this

order, of entering into contracts, of employing personnel, of acquiring,

holding and disposing of any property for the purpose of its functions,

of suing and of being sued, of doing all such things and entering into

all such transactions as are incidental or conducive to the exercise or

performance of its functions under this order, and any other function or

operation of government as may be assigned under law.

(3) The legal representation of the Agency shall be vested in

the Chairperson

Provided that the Chairperson may, from time to time and

under such terms and conditions and with such powers as he

determines in writing and presents in a meeting of the Board, and

which are approved by the Board, appoint any one (1) or more of the

members of the Board, or any one (1) or more of the officers or

employees of the Agency, to appear in the name and on behalf of the

Agency in any judicial proceedings or on any act, contract, instrument

or other document whatsoever.

(4) The Minister shall assign to the Agency a company for the

commercialisation of

(a)

the operation of the Agency;

(b)

the property managed by the Agency; and

(c) the functioning of the National Philharmonic

Orchestra.

(1) The Agency shall have a Board of Management, with The Board of

the primary role of overseeing the management of the Agency the Agency.

administratively and artistically.

(2)

The Board shall be composed of the following members

(a) the Chairperson, who shall be appointed by the

Minister after consultation with the Permanent Secretary;

(b) the Deputy Chairperson, who shall be appointed by

the Minister after consultation with the Board of Directors of the

company chosen in terms of article 3(4);

(c) not less than three (3) and not more than seven (7)

ordinary members, appointed by the Minister,

who shall possess professional qualifications, technical

expertise, knowledge or experience in the sector of orchestral

music, or show that they have skills in matters related to the

orchestral music sector, or have skills and competences which

may aid the Board in the fulfilment of its role; and

(d) the Secretary, who shall be appointed from amongst

the officers or the employees of the Agency by the Minister after

consultation with the Chairperson.

(3) A person shall not be eligible to serve as member of the

Board or shall be disqualified from continuing to serve as member of

the Board

(a) where such person is convicted of any of the crimes

mentioned in Titles V, VI and IX of Part II of Book First of the

Criminal Code;

(b) where such person is subject to a disqualification

under article 320 of the Companies Act;

(c) where such person is convicted of theft or fraud, or of

knowingly receiving property obtained by theft or fraud or of

bribery or of money laundering, or has otherwise been sentenced

to a term of imprisonment for a term not less than three (3)

months;

(d) where

such

person

is

legally

interdicted

or

incapacitated;

(e) where such person is a Judge or Magistrate of the

Courts of Justice;

(f) where such person is a member of the Cabinet in

terms of article 79 of the Constitution or a Parliamentary

Secretary appointed in terms of article 88 of the Constitution; or

(g) where such person has a financial or other interest in

any enterprise or activity which is likely to affect the discharge

of his functions as Board member.

(4)

All members of the Board, regardless of their role, shall

(a) in the execution of their duties, act with prudence,

diligence, attention and observe the utmost good faith;

(b) abide by the Code of Ethics for Board members in the

Public Sector issued by the Office of the Prime Minister; and

(c) sign an understanding outlining his duties as Board

member, including the duty of confidentiality and regulating

conflicts of interest.

(5) The members of the Board shall hold office for a period of

three (3) years

Provided that the term of office of a member of the Board

may also end upon the death or resignation of that member or the

disqualification of that person from continuing to serve as a member.

(1) The quorum necessary for the operation of the Board The meetings of

the Board.

shall be half the members in office plus one (1)

Provided that a person, with the approval of the

Chairperson, may be invited by any member of the Board or by the

Minister to attend a meeting of the Board as an observer, with the right

and time to speak as may be provided by the member chairing the

meeting

Provided further that the Executive Head and the Executive

Team shall have the right to request to attend a meeting of the Board as

an observer to make presentations on any matter relating to the

conduct of the Agency's affairs or the performance of the Agency's

functions.

(2) The Board shall endeavour to meet at a minimum of once

every calendar month, on such date and at such time set by the

Chairperson after consultation with the other members of the Board

Provided that the Chairperson shall make the necessary

effort and arrangements to enable all the members to attend the

meeting on the set date and time.

(3) In the absence of the Chairperson, the meetings shall be

chaired by the Deputy Chairperson.

(4) The Secretary shall also be responsible for taking minutes

of all the meetings of the Board, and for keeping a record within such

minutes of all the questions raised, the correspondences and

documents submitted, and any declarations of the directions taken in

the books kept for that purpose.

(5)

When the circumstances so require

(a) that a vote is to be taken, each member of the Board

shall have an original vote, except for the Secretary who shall be

a non-voting member of the Board;

(b) that a tie-breaking vote is to be taken, the member

chairing the meeting shall be vested with a casting vote;

(c) that a member or observer is to be removed from one

(1) or more meetings, the member chairing the meeting shall

have the power to order the removal of the member or observer;

(d) that the term of office of a member is to be suspended

temporarily, the member may suspend himself or be suspended

by the Minister

Provided that

(i) in the case of self-suspension, the member shall

write to the Board and the Minister informing them of the

self-suspension; and

(ii) in the case of a member being suspended by the

Minister, the Minister shall write to the member being

suspended and to the Board explaining the reasons for the

suspension

Provided further that the members shall not be

allowed to take a vote ordering the suspension of the term of

office of a member;

(e) that a member is to be removed from office, the

member may be removed by the Minister

Provided that the Minister shall write to the member

being removed from office and to the Board, explaining the

reasons for the removal

Provided further that the members shall not be

allowed to take a vote ordering the removal of a member from

office.

(6) The Board shall afford to the Minister facilities for

obtaining any information with regard to the property and activities of

the Agency, and shall furnish the Minister with returns, accounts and

other information with respect to its functions, and afford facilities for

the verification of any information furnished, in such manner and at

such times as the Minister may so require.

(7) Without prejudice to the provisions of this order, the Board

may regulate its own procedure generally and, in particular, regarding

the holding of meetings of the Board, the notice to be given of such

meetings, the proceedings in relation to them, the keeping of minutes,

the custody, production and inspection of those minutes and the

opening, keeping, closing and audit of accounts.

(8) The remuneration paid to members of the Board shall be in

accordance with the applicable directives and guidelines issued by the

Government from time to time.

(1) The affairs and work of the Agency shall be the The conduct of

affairs of the

responsibility of and shall be managed by the Executive Head.

Agency.

(2) The Executive Head shall be responsible in particular, but

not limited to

(a)

the day-to-day running of the Agency;

(b) the overall organisational supervision, general control

and coordination of the work of the Agency;

(c) the implementation of the performance agreement

and the development of strategies necessary for the

implementation of the Agency’s objectives;

(d) the collection, provision of information and carrying

out of preparatory work for the purpose of reports on the

operation of the Agency;

(e)

the management of the Executive Team.

(3) In the execution of his role, the Executive Head shall be

assisted by the Executive Team, which shall be composed of the

following members

(a) the Administrative Head, who shall be responsible

for, but not limited to, the human resources, the financial

supervision, the business plan and the budget of the Agency;

(b) the Head of Development, who shall be responsible

for, but not limited to, the management of the Agency's

communication and marketing, and internationalisation;

(c) the Head of Operations, who shall be responsible for,

but not limited to, logistics, and the development of a

relationship, collaboration and coordination with the Council and

other Public Cultural Organisations;

(d) the Artistic Head, who shall be responsible for, but

not limited to, the artistic development, training, educational

initiatives, and coordination with the members of the National

Philharmonic Orchestra.

(4) In exercising its power to appoint or to reappoint persons to

the positions mentioned in this article, the Minister may appoint an

Evaluation Committee for Appointments, with the role of managing

the selection process, and evaluating the candidates who have

submitted their names for the vacant post

Provided that the Evaluation Committee for Appointments

shall be composed of persons with skills and competences related to

the management of the Agency, and who shall not be under any

disqualification set out in the provisions of article 4(3) and (4).

(5) The provisions of articles 4(3) and (4) and of paragraphs

(d) and (e) of article 5(5) shall apply mutatis mutandis for persons

serving in the positions mentioned in this article.

(6) Persons serving in positions mentioned in this article shall

hold office for a period of four (4) years

Provided that the term of office may also end upon the

death or resignation of that person or the disqualification of that person

from continuing to serve in the position.

(1)

It shall be the function and object of the Agency to

(a) promote classical, modern and Maltese music, and

promote music as a means of personal and community

development;

(b) promote, through the functioning of the National

Philharmonic Orchestra, public knowledge and appreciation for

music, and the talents linked to this art;

(c) develop and maintain the national and international

profile of the National Philharmonic Orchestra;

(d) support and promote the National Philharmonic

Orchestra, and provide the appropriate platform for the support,

growth and development of the existing portfolio of the National

Philharmonic Orchestra of festivals, recitals, music shows and

existing concerts, and build the same portfolio by introducing

new and innovative ideas and increasing audience involvement

and participation;

(e) promote, encourage and provide event execution and

musical performance of the highest level, comparable to the

levels of major international events;

(f) develop the portfolio of concerts, events and festivals

into a continuous creative platform for Maltese and international

artists and creative operators through the commission of new

work, also in partnership with public entities, local, national and

international organizations and event organizers;

(g) organize activities and events throughout Malta, and

develop distinct plans for each activity and event to involve

audiences and various sectors of society;

(h) provide what is necessary to facilitate attendance at

activities and events, and increase participation and audience

involvement, and make use of technology, communication and

collaboration for the full support of these same activities and

events;

(i) bring the music performed by the National

Philharmonic Orchestra closer to the people by encouraging,

building and increasing participation in activities and events, and

this also through focused and effective communication;

(j) procure instruments and other tools necessary for the

functioning of the National Philharmonic Orchestra;

(k) coordinate the travel and performances of the

National Philharmonic Orchestra abroad, and encourage the role

of the National Philharmonic Orchestra in the cultural promotion

of Malta;

(l) work closely with the relevant persons, public entities

and organizations in order to develop and maintain the image and

brand of Malta internationally in the sector of the functioning of

the National Philharmonic Orchestra, and to promote and

develop the same sector as a sector in local cultural tourism;

(m) encourage a national arts and culture calendar,

offering a consolidated program and spur greater synergies,

impact and alignment in public and private cultural

organisations;

(n) establish a strong network of affiliations with local

and international cultural organizations, which may also include

partnerships in local, regional and international concerts, events

and festivals;

(o) provide the instruments for the full support of events

and festivals in Malta and beyond, through technology,

communication, marketing and common aid;

(p)

organise educational initiatives and training;

(q) determine further brand recognition for the Agency’s

product; and

(r) do those things that can be considered ancillary to the

functions provided for in this article.

(2)

For the purpose of carrying out its functions, the Agency

(a) may collaborate with Ministries, Departments,

authorities, corporations and agencies of Government, local

councils, regional councils, non-governmental organisations,

Public Cultural Organisations and other persons;

(b) may enter into agreements, contracts and obligations

with natural as well as legal persons, public entities and local,

national and international organisations;

(c) shall closely collaborate with the company chosen in

terms of article 3(4) for the commercialisation of the operation of

the Agency and the functioning of the National Philharmonic

Orchestra.

(1)

From the appointed date

(a) the employees of National Orchestra Limited shall

become employees of the Agency under the same terms and

conditions as existant on the appointed date;

(b) the employment contracts and collective agreements

concluded by National Orchestra Limited, and which are still

active and valid on the appointed date, shall remain in force as if

these contracts had been concluded by the Agency; and

(c) contracts of service concluded by National Orchestra

Limited with musicians of the National Philharmonic Orchestra,

and which are still active and valid on the appointed date, shall

remain in force as if these contracts had been concluded by the

Agency.

(2) All employees of the Agency shall be considered as

employees of the Agency from the appointed date in terms of article 38

of the Employment and Industrial Relations Act.

(3)

Without prejudice to the provisions of the Constitution, any

other law applicable thereto, and without prejudice to the other

provisions of this order and any applicable directives, the appointment

of employees of the Agency who are necessary for the proper and

effective performance of its functions, shall be made by the Agency

itself, with that remuneration and under those terms and conditions

which may be determined by the Agency.

(4) (a) In accordance with the provisions of the Act and with

the approval of the Prime Minister, the Agency may request from time

to time and after consultation with the Minister, that any public

employee shall be detailed for duty with the Agency in such capacity

and with effect from such date as may be specifically requested,

agreed or approved.

(b) For the time when a public officer is detailed for duty

with the Agency, while he is under the administrative direction

and control of the Agency, he shall remain and retain all the

rights and obligations of a public officer, and for the purposes of

any law relating to pensions for service with the Government,

service with the Agency shall be regarded as service with the

Government

Provided that in assessing the pensionable

emoluments of such officer for the purposes of any law relating

to government service pensions, no account shall be taken of any

allowances, bonuses or gratuities paid to such officer by the

Agency in excess of what he is entitled to as a public officer

Provided further that, during the time he is so detailed

to perform duties with the Agency, his terms and conditions of

service shall not be less favourable than those which are attached

to his appointment with the Government during the period

aforesaid, and such terms and conditions shall not be deemed to

be less favourable because they are not in all respects identical or

superior to those enjoyed by the officer concerned at the date of

such detailing, if in the opinion of the Prime Minister such terms

and conditions, taken as a whole, offer substantially equivalent

or greater benefits.

(c) The Agency shall use the salary and grading structure

adopted by the Council

Provided that no position shall be classified in a grade

higher than Grade three (3) of the service with the Government

or any other grade that the Minister responsible for finance may

from time to time by notice in the Gazette establish.

(1) The Agency shall be regulated through the provisions

of the Public Finance Management Act, as provided for in article 31 of

the Act.

(2) Subject to the provisions of this order, the Agency shall

carry out its work in such a way that the expenditure required for the

proper performance of its functions shall, as far as is practicable, be

met from its income and from the commercialization of its operation.

(3) The Agency shall also receive from the Government, from

the Consolidated Fund, those amounts that may from time to time be

authorized for allocation to cover part of its expenditure that cannot be

met from its income and from the commercialization of its operation,

as well as costs for specific works to be continued or to be otherwise

executed by the Agency.

(4) Subject to any decision which the Minister may from time

to time make after consultation with the Minister responsible for

finance, any excess of income over expenditure shall be applied by the

Agency to the formation of reserve funds which shall be used for the

objectives of the Agency

Provided that the Minister and the Minister responsible for

finance may, in writing, order the Agency

(a)

to transfer to the Government that excess on income;

or

(b) to apply such excess revenue in such manner or for

such purpose as may be specified.

(5) Any funds of the Agency which are not immediately

required to meet the expenditure, may be invested in such manner as

may from time to time be approved by the Minister.

(6) The Agency, in the performance of its functions, may

impose fees, rates and other charges as may be published or agreed

upon with third parties.

(7) (a) The Executive Head shall be responsible for

administrating the Agency within the financial parameters of the

Agency.

(b) The Head of Administration shall ensure that the

Agency operates in strict compliance with the financial

regulations provided for in this order and any other applicable

Government financial regulations.

(8) (a) The Agency shall prepare an annual report where it

shall render an account of its operation, activities, and financial

situation in respect of each financial year.

(b)

In its annual report, the Agency shall provide

(i) an overview of the Agency’s operation during

that financial year, including reference to the

implementation of the enshrined functions and the

Agency’s corporate governance; and

(ii) a financial statement and the report of the

auditor or auditors, appointed by half of the members of the

Board plus one (1), containing a statement

(aa) on the financial position;

(bb) on the financial performance;

(cc) on the changes in net assets or equity;

(dd) on the cash flow;

(ee) of the comparison between the estimates

prepared for the financial year under examination and

the actual expenditure of the financial year under

examination, and between the actual expenditure of

the financial year under examination and the actual

expenditure of the previous year;

(ff) containing the opinion of the auditor or

auditors on the procurement management, financial

position and performance of the Agency;

(gg) containing notes, comprising a summary

of significant accounting policies and other

explanatory notes

Provided that the contract of service with the

appointed auditor or auditors shall be concluded within one

(1) month from the end of the financial year and the auditor

or auditors shall be bound to conclude their work and

provide the Agency with the report within five (5) months

from the date of the contract of service.

(c) The Agency shall, within five (5) working days of

receipt of the audit report from the auditor or auditors, transmit

and present the annual report to the Minister and the Permanent

Secretary.

(d) The Minister shall, within five (5) working days of

the receipt of the annual report of the Agency, lay the annual

report on the Table of the House, or if at any time during that

period the House is not in session, within one (1) week from the

beginning of the next following session.

In the Fourth Schedule to the Act, immediately after the

item

"Agency for Infrastructure Malta

To perform any functions however

so described relating to the design,

construction, repair, maintenance

and operation of infrastructural

projects including the setup and

implementation of strategies and

policies related thereto"

thereof there shall be added the following new item

"Agency for the

Malta

To adopt and implement the

Philharmonic Orchestra

artistic strategy of the National

Philharmonic Orchestra.".

€1.26