The Freedom of Association in View of the Air Malta ALPA DisputeMEDIA ROOM
Article 32 of the Constitution of Malta lists the Freedom of Assembly and Association as part of the fundamental rights and freedoms of an individual. These freedoms are set to serve as a vehicle for the exercise of many other civil, cultural, economic, political and social rights allowing people to express their opinions, form and join trade unions and hold their leaders or employers accountable. In effect, individuals are entitled to join a formal or informal group and in turn take a collective action.
Air Malta v ALPA
A recent trade dispute between Air Malta and ALPA (Airline Pilots Association), revolving mainly on the Air Malta pilots’ working conditions and the number of pilots required by the national airline, raised the concern on the limitations and the extents of such rights. This arose due to the fact that, while rights are granted to protect the freedoms of an individual, these rights are not absolute, to no exception the freedom of association.
The present dispute, between the trade union representing the cockpit crew and Malta’s national airline, evolved along the course of time to the point where the airline in question requested an injunction to prevent ALPA from carrying out any further industrial action. Judge Silvio Meli, hearing this request, suspended the proceedings between both parties in an attempt to push towards an out-of-court agreement.
While revolving around the right to association, the injunction sought by Air Malta, should not be interpreted as seeking to attack the right to take industrial action per se.
Arguments raised in court were limited, due to the abrupt termination of proceedings, however, the Airline’s request, conceivably revolves around the potential prejudice industrial action would cause on the operations of Air Malta, given its financial situation and the state of negotiations which are currently underway to seek a long-term commercial viability for the airline. From Air Malta’s perspective, the issue on the suitability of the course of industrial action sought by ALPA is debatable, given the current position of the company in question. From a trade union’s perspective, the suitability of measures to address employee-related issues is also relevant, given the critical point in the company’s life, that of a view of future restructuring. This implies that while Air Malta is in the midst of negotiations to sell-off a shareholding, ALPA is negotiating a collective agreement with Air Malta. It is in this context that an element of balancing of priorities, rights and implications is set to kick in. This scenario raises the argument as to what extent the right to take action can be restricted.
Restrictions to the Right
States may place certain restrictions on the right, as long as such measures are prescribed by law, necessary and in the interest of national security, public safety, public order, the protection of public health or morals. Examples of limitation to this right are listed in the Article 64(6) of the Employment and Industrial Relations Act, which includes air traffic controllers, medical health services, energy generation and public transport among other areas of national importance. Such restrictions on rights are generally evaluated on the tests of necessity and proportionality. The issue characterising these debates, in view of the above mentioned financial position, is that of proportionality of the measures in question as a balancing exercise undertaken in the rights under protection.
Rejection of Air Malta’s request
Upon failure to reach an out-of-court agreement, court proceedings were resumed which resulted in the rejection of Air Malta’s injunction. In his ruling on the 4th of August, Mr Justice Silvio Meli held that the airline failed to prove that the injunction was required to protect any of its rights. This requirement implies that for a right to be restricted, arguments substantiating the protection of rights of the other party are to be made.
In the case of a failure to reach agreement, one would ask where this could lead. Possibly more court involvement in the future? This would, to some extent, be an academic stimulating exercise, however, in a corporate world, perhaps not as favourable.
This issue is capable of stimulating even further the drive towards a revolutionised Industrial Tribunal, with more powers, a wider and more defined jurisdiction and capable of hearing disputes relating, to amongst others, collective action disputes.