It’s not just about sick leave | Arthur Muscat

When the Malta Employers’ Association put forward its own proposals for a reform of the Employment and Industrial Relations Act, the reaction was… predictable.

One particular suggestion leapt to the eye: the MEA proposed that employees should no longer be eligible for sick leave benefits for conditions of unfitness that were ‘self-inflicted’: mentioning sunstrokes, hangovers and sports injuries as examples.

The confederation of trade unions was unimpressed, retorting that the idea was “frivolous”, and arguing and that the MEA’s aproach “may verge on the illegal or on what is borderline.” Most other reactions described the same approach as ‘draconian’, ‘pre-Enlightenment’, and so on.

Arthur Muscat, president of the MEA, naturally sees things differently. The first difference he spots when we meet for this interview was the fact that unlike the MEA, its critics only seemed interested in talking about one facet of the proposals – sick leave – when the document actually talks about a thorough reform of Malta’s employment legislation.

“What prompted the formulation of these proposals on the part of the MEA has nothing specifically to do with the sick leave issue,” he begins. “The Employment and Industrial Relations Act is a piece of legislation that is quite old. It has served us well for the last 30, 40 years. But lately, not so well. And we, as MEA, feel that the time has come to review this piece of legislation. More so since, through our participation in the Employment Relations Board, we are aware that on its part, the Department of Employment and Industrial Relations, too, was formulating proposals to amend the law… Taking our cue from what was happening there, we decided to set up an internal committee to finalise our own proposals.”

I assume the result represents the collected feedback from all the association’s members…

“It was an internal exercise, but obviously, yes, we get a hell of a lot of feedback from our members, who come along with all the problems they encounter. And we, in turn, look at the law and see how it stands with regard to these problems….”

Was anyone else consulted in the process? Did the MEA seek any opinion from the other social partners, for instance?

“No. A lot of internal consultation has occurred, but we did not consult the unions, or other employer bodies, or NGOs… after all, the Malta Employers’ Association is the primary union of employers, and in the sphere of industrial relations we have a lot of expertise…”

Perhaps, but seeing as how the resulting chorus of criticism was near-unanimous… couldn’t this have been avoided if certain proposals were bounced off other experts? After all, at a glance, some of the examples cited of ‘self-inflicted’ conditions do look a little exaggerated. Like getting sunburnt, for instance…

There is a twinkle in his eye as he answers.

“Well, let me put it this way: in terms of proposals, we as MEA do not depend on the votes of the public. We are a union of employers, and we state things as we feel they should be stated. A reaction in terms of criticism was expected, yes, but it doesn’t bother us in the least. We are satisfied that the public – not necessarily the government, or unions, but the public – is taking an interest in these issues...”

As it happens, a recent MaltaToday poll suggests a slight overall majority backs these proposals…

“In fact we were surprised that, in respect of the specific issue of sick leave, a majority of the public does think in line with the MEA. But basically, all we’re talking about is prevention of abuse here. And abuse, in itself, is something that should be avoided. But obviously, our proposals did not just cover the sick leave issue... we also talked about a reform of the industrial tribunal, the issue of union recognition: a very hot item, which very urgently needs to be reviewed… we have gone into aspects of the right of the employer to deduct wages when money is owed to him by the employee… obviously, within limits. But it is a facility we feel, at the moment, is weighted against the employer…”

Still, we have to start somewhere, so it may as well be the area where there was most resistance…

“I think the sick leave issue has to be tackled because of the public reaction, sure. We need to explain clearly what we’re saying. As far as this issue is concerned, in manifest cases where there is abuse, we feel that the employer should have the right to withhold payment. We are not contesting the medical certificate… in other words, a medical doctor certifies that somebody is unfit for work. We don’t dispute that. What we dispute is: what has caused that unfitness? Because if it was caused deliberately, or through carelessness... “

Wait a second: ‘deliberately’ implies intention… as though people go out of their way to get injured or sick…

“Oh, I can give examples of deliberate situations where particular employees seek medical certificates to engage in something else...”

But that’s not exactly what your proposals were talking about. No one in his right mind would argue against a proposal to curb sick leave fraud… which is what those examples would be. Still less with getting a doctor to issue a fake certificate. But the MEA has extended that argument also to people who are genuinely unfit for work because of (among other things) accidents. Like sports injuries, for instance. Would he seriously compare the case of someone who hurt himself playing rugby, to someone doing a sickie and forging a medical certificate?

“Yes, to a large extent. I’ll give a practical example. If it results to the employer that you engage in (for example) high-diving in a dangerous way, regularly… and the employer warns you: hey, that is a dangerous activity, it can lead to injury and cause work problems. You persist, and...”

But this also touches on the issue of interference in personal lifestyle choices. Does an employer have a right to ‘warn’ employees about the choices they make outside the sphere of work?

“No, not at all. In a way, you can say we have no business whatsoever. The only business we have is that we are expected to pay. That’s where our business comes in. I don’t want to intrude in the private life of… whoever. All I’m saying is: you engage in whatever you want in your private life, but don’t expect me to finance that, let’s call it ‘erroneous’ behaviour…”

But how can sports be considered ‘erroneous’? He replies by pointing towards other areas where unfitness for work may be self-inflicted. “For example, frequent Monday morning blues. What happens? If you absent yourself the bulk of the weight of your absence falls on your colleagues. And a lot of employees complain. A lot of the information is conveyed to the employer by fellow annoyed employees. Because when they see an erroneous behaviour repeating itself, they do intervene, and they do speak up…

He breaks off for another practical example. “An employee – obviously no names mentioned, but this is real – is scheduled to start work on a 10 o’clock nightshift. As can happen, the employee phones in and says he in unfit to work. And obviously, eventually certified by a doctor. Through indications, it results that this individual went on Facebook on the same day, and describes how he had an extremely tough engagement at the gym, and that he really exaggerated in his strenuous efforts, and now he is feeling so tired he’s just not doing anything. He puts it on Facebook. And it follows that he goes off sick. What does the management do? There is evidence, Facebook, it’s there…”

He got that certified by a doctor?

“OK,” Muscat resumes slowly, as if to say: fine, let’s talk about medical certification. “Do you recall, a few years back, how 40 pilots reported sick, all duly certified by doctors, on the same day?”

Yes, but there were particular circumstances to that case. As I recall it was the restructuring of Air Malta, and there was a lot of unrest…

“Precisely, and one way of behaving was to go on paid sick leave instead of going on strike. You disrupt the company anyway. 40 pilots. On the same day. All medically certified… what I’m saying here, is that yes, on the part of the medical profession, there are some members who are relatively lax in issuing sick leave certificates. Not obviously, the big majority of members. Doctors have a difficult task, because, through their profession, a doctor puts the benefit of the doubt in favour of the patient. That’s how it should be…”

But don’t employers have the right to send their own doctor for a second opinion?

“Yes, of course. There is a mechanism to contest the medical validity of a certificate; a third medical practitioner normally comes in and decides, as exists in so many collective agreements… but we are talking about something else. The events that led to the state of unfitness for work. That is what the MEA is contesting. Now, if it happens to also be certified… that’s a secondary issue…”

The sickness issue is the priority, he adds, because it is the most prone to abuse. “There are a lot of indicators. If I were to tell you that utilisation of sick leave in the public sector is double that of the private sector…”

It wouldn’t really surprise me, though I never had it on official figures before…

“That’s our point. Everybody knows about it, but nothing ever gets done. What does this reveal? Either that public sector employees don’t enjoy good health as much as the private sector, or else the management in the public sector is not serious about administering sick leave.”

This laxity comes at a cost, he adds. “If you add up sick leave in a particular year… 2013, if I’m not mistaken… it cost the country 37 million euros. And that does not include the first three days that are paid by the employer. Just the disbursement of national insurance benefits. My question at this stage is: what if even 10 or 15 of those 37 million are abusive… what is wrong with highlighting these issues? Because they are serious issues… with that 10 million, we could have inaugurated the free childcare centres eight years ago, not now…”

Still, by extending the net so broadly – anything from sports injuries to hangovers – the MEA may have given the impression it was merely trying to wriggle out of its legal obligations wherever possible.

Muscat rebuts this by pointing out that the employee has responsibilities of his or her own. “There might be people in official departments who believe that ‘unfitness for work means paid sick leave’. And they stop there, because that is what the law states. But the reality is that there are collective agreements, and yes, there are situations where payment of sick leave benefits should be withheld. We want the law to reflect those situations…”

Muscat is however keen to get to the other parts of the MEA’s policy plan. Such as the composition of the industrial tribunal. “The way it is currently set up should change. At the moment, trade disputes are tackled by a tribunal composed of a chairperson and two members; unfair dismissals are heard by a chairperson on his own. We are saying an industrial tribunal should always be constituted by a chairperson and two members. Also, the chairperson should always be a lawyer with at least seven years’ experience. We have noticed that lay chairpersons seem not to be handling well lawyers who come to plead the cases. Very often these come up with legal issues, and a lay chairperson, in our opinion, may find himself out of depth.”

As for the other two members: no legal qualifications are required. “Those bring in the practical, real world experience…”

Another, perhaps more significant objection by the MEA concerns the supreme power of parliament over the tribunal. “The current law states that parliament can nullify a decision by an industrial tribunal. We’re saying: this provision has to go, because it doesn’t make sense.”

It doesn’t sound very legal to me, either. Parliament is occupied by government, which is the country’s largest employer. The conflict of interest is glaring. Surely, however, that can be contested on Constitutional grounds? No one can be a judge in his own court, and all that…

“Let’s just say it never happened. But the mere fact that it is there is not correct. It has to go…”

With it, he adds, must go the legal mechanism for the appointment of chairpersons. “As things stand, a minister can actually remove a chairperson at his own discretion. Except in cases which are ongoing: those are protected. But the law allows a minister to ‘change the composition of the chairpersons’ (there are 12 in all), so he can appoint you one week, and remove you the next. This right to mess about with the panel should go. What we want is that chairpersons are appointed for a fixed period of time: say, three or five years. But during that period, no minister or prime minister can remove a chairperson… unless of course, there is manifest incompetence, improper behaviour, or whatever.”

Was there particular reaction to this? Any indication that the government may consider the proposal?

“No. We only got reactions on sick leave…”

There was however some reaction to the MEA’s proposal to cap compensation paid out by employers in the case of unfair dismissal. The suggested cap of 18 months’ salary seems to be slightly on the low side…

“We suggested 18 months’ salary as a maximum ceiling, yes, but we could have said five years, three years… the important thing is that it is capped, not left at the full discretion of the tribunal; and that an explanation is given for how the compensation figure was reached. And this is nothing new, it already exists in the UK…”

For all this, union representation remains the biggest bone of contention. “It is not fair that employers should suffer when unions fight among themselves for recognition. We became aware that the government is elaborating a proposal regarding union representation. We have our own clear views on this. We declared up front that union recognition issues are currently not tackled at all, either by regulations or by any competent authorities. We propose a minimum intervention in the law: union recognition should be based – it’s common sense – on real union membership.”

At present, a union can claim to represent 50% plus one of the workforce, and demand recognition which gives that union the right to negotiate a collective agreement.

“How do you decide which union to recognise where there are two contending unions, and both claim to have 50% plus one?”

Some unions favour a system of ‘ballots’, whereby employees are simply asked which union they prefer to represent them. MEA contends that the system is prone to abuse. “We don’t believe in ballots. We believe in real union membership. We want the law to include a definition of what a union member is. We think it should be an up-to-date, paid-up member. So if a union makes a claim, the director of labour asks – in confidence, because it’s confidential information – for the receipts of the members. We can even give a grace period, because people don’t pay on time. Let’s say a one-year grace period….”

But surely unions would object because it might expose their members to risk? Union membership is after all a politically sensitive issue in some workplaces…

“The MEA believes that union membership is and should be remain confidential. There are some unions which are in favour of this approach, too. If there are clear rules, nobody is going to bluff. We propose to give the director of labour the power to demand the information, and an obligation on unions and employers to give the information. If there is a recognition dispute, the director of labour will then have an obligation to intervene. Not at his own discretion, as it stands today.”