Three successive education ministers have been found in breach of the right to freedom of association for persistently denying a teachers union from accessing schools.
In a damming report seen by Lovin Malta, Education Commissioner Vincent De Gaetano, a former Chief Justice and judge at the European Court of Human Rights, warned that the Education Ministry is discriminating against the Union of Professional Educators.
Set up in 2018 by Graham Sansone, the UPE is trying to shake up the hegemony over the teaching sector which the Malta Union of Teachers has enjoyed for over 100 years.
Despite being a recognised union, it has faced persistent problems accessing its members at school. Not only is it not allowed to visit its members at work or hold meetings with them during break, but it can’t even transmit material or communication related to the union at work.
The Education Ministry, under Evarist Bartolo, his successor Owen Bonnici and the incumbent Justyne Caruana, has repeatedly argued that the UPE has been denied these rights on the grounds that the MUT is the recognised majority union.
Fed up with the situation, the UPE last June filed a complaint with the Education Commissioner within the Ombudsman’s Office, accusing the Ministry of discrimination.
The Ministry, under the signature of permanent secretary Frank Fabri, first tried to argue that the complaint was inadmissible because the law only allows “natural persons” and not “moral persons” (ie. unions, companies, groups etc) which can seek an Ombudsman investigation.
Ministry lawyers tried to bolster this bizarre argument by referring to the Collins Dictionary of the term ‘Ombudsman’ as “an independent official who has been appointed to investigate complaints that people make against the government or public organisations”.
However, the Education Commissioner shot down these arguments and said it was troubled by the Ministry’s “restrictive” interpretation of the law, which would imply that trade unions are banned from complaining to Ombudsman officials.
“One cannot expect that moral people seek redress of alleged maladministration through the filing of costly judicial proceedings as would be the case if one were to accept the restrictive interpretation given by the ministry’s legal advisors,” De Gaetano wrote.
After dismissing this legal attempt at stifling the union, the Commissioner went on to examine whether the Ministry is hindering the UPE from exercising its proper functions as a trade union.
According to the Commissioner, the Ministry said it cannot accede to the UPE’s request because it would “risk upsetting the other union”, ie. the MUT, and that allowing the minority union on school premises would go against normal industrial relations practices.
Yet De Gaetano warned that the issue goes way beyond issues of industrial relations but strikes at “the very heart of fundamental democratic principles and the rule of law”.
“For purposes of collective bargaining there is only one registered trade union which should be recognised by the ministry, and it is not the UPE,” he wrote.
“However, the issue is the positive obligation of the state to ensure that in the exercise of the right to freedom of association, a union is not improperly hindered in the exercise of its function to communicate with its members and that its members can benefit from unhindered communication (within boundaries of reasonableness) with union officials.”
“More critically in this case, there should not be any official or unofficial improper discrimination between registered unions representing teachers.”
“Collective bargaining with the majority union is widely recognised as being both objective and reasonable, in so far as it pursues a legitimate aim in a proportionate manner. A differential treatment which falls short of that standard, however, would tend to be both capricious and improper.”
Indeed, he noted that the European Convention on Human Rights, which Malta has ratified, prohibits discrimination of “any right set forth by law”.
“From the investigations carried out, which included a very cordial and informative meeting with [Justyne Caruana] and [Frank Fabri], it transpires that the main bone of contention is the hesitance by the Ministry to extend to the minority union the same facilities that are accorded to the main union which has official recognition for purposes of collective bargaining.”
“While this hesitancy is understandable it should not be allowed to trump what should be fair and equitable. Freedom of association, including the freedom to join a minority union, and the corresponding right and duty of a union (including a minority union) to interact with its members should not be sacrificed on the altar of expediency.”