AGENCY FOR THE MALTA PHILHARMONIC ORCHESTRA (ESTABLISHMENT) ORDER

(ESTABLISHMENT)

SUBSIDIARY LEGISLATION 595.42

AGENCY FOR THE MALTA PHILHARMONIC

ORCHESTRA (ESTABLISHMENT) ORDER

17th October, 2022

LEGAL NOTICE 254 of 2022.

The title of this order is the Agency for the Malta

Philharmonic Orchestra (Establishment) Order, hereinafter referred to

as "this order".

In this order, unless the context otherwise requires

"Act" means, unless otherwise indicated, the Public

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

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

(ESTABLISHMENT)

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

(ESTABLISHMENT)

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 primary role of overseeing the management of 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;

(ESTABLISHMENT)

(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 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

(ESTABLISHMENT)

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

(ESTABLISHMENT)

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

responsibility of and shall be managed by the Executive Head.

(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;

(ESTABLISHMENT)

(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

(ESTABLISHMENT)

(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

(ESTABLISHMENT)

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

(ESTABLISHMENT)

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

(ESTABLISHMENT)

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.

(ESTABLISHMENT)

(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

(ESTABLISHMENT)

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.