Furniture and looks do not make a structure less illegal

Just because a boathouse in Armier has been renovated to look like a stylish studio apartment and subsequently put up for sale with what looks like a pittance compared to the price for actual studio apartments, does not mean that it would be a good idea. As lawyer Dr Ian Spiteri Bailey pointed out, “It’s not the furniture and how they look what makes a structure/building legal or illegal.”
The structures, which are still seemingly occupied, have been a bone of contention for authorities for well over a decade. In 2003, the Government had granted boathouse owners a 65-year-long right to enjoy public land as long as they take care of it, also known as emphyteusis. This was however overturned by the Courts in a final 2013 Civil Court judgement with Judge Anthony Ellul saying that, “Transfer of land on shores for the building of caravans can only be by title of rent for less than 10 years.”
It was then pointed out by Armier Developments Ltd – “The boathouse owners association in Armier and vicinities” according to their Facebook page – who filed an appeal and then eventually abandoned it in February 2017, that they had an agreement with the Government. The Judge then explained that the legal mistakes of one entity do not justify and legitimise illegal constructions.
Boathouses for sale
Following a Facebook post advertising one such boathouse one sale for €110,000 doing the rounds on the social media platform, contacted the lawyer to find out exactly where the law lies on buying structures that have previously been deemed illegal by the Courts.
When asked about the advertisements for the boathouses, Dr Bailey pointed out that “It’s not the furniture and how they look what makes a structure/building legal or illegal. It’s the necessary permits from the competent authorities.” He added that they could be “the most luxurious studio flats, because if there are no permits, then they are illegal structures.”
That being said, it is also possible that there are permits for boathouses which are then converted into studio apartments. In this case, “as long as no permits have been obtained to change the use of the structures from boathouses to studio flats,” said Dr Spiteri Bailey, “then they will remain illegal.”
Cost vs Value
A quick search brought up a handful of vacancies even on reputable real estate websites which valued the boathouses between €80,000 and upwards of €250,000. Although the price tags could be the result of what the market dictates, in terms of land scarcity or the actual value of the land itself, it might still just be a waste of money.
Dr Spiteri Bailey explained that there were decisions by the Court of Appeals which have valued illegal buildings and structures at nothing. “So a person might purchase an illegal boathouse/studio flat,” said the lawyer, “only to discover, in the future, that he has given away that sum of money.” Dr Spiteri Bailey also concluded by pointing out that, in his opinion, this is “sheer madness!”

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Revolving doors rules might not affect MPs in executive roles

As the government moves to update its Public Administration Act, it is seeking to prevent high-ranking employees inside regulatory authorities from taking jobs with companies with which they would have had dealings in the former five years. A penalty of three years’ pay could be imposed for breaching this condition.
While such restrictions are not yet regulated by Maltese law, certain employees’ contracts are already featuring “restraint of trade” clauses, industrial relations expert and lawyer Ian Spiteri Bailey told MaltaToday.
“Restraint of trade clauses, which have a similar effect to revolving doors rules, are not regulated by our laws, so that does not make them illegal in themselves. However, due to other considerations such as the right to work and the freedom to improve one’s working conditions, we are opining that such clauses were un-enforceable,” Spiteri Bailey says.
In 2015, a Court of Appeal ruled on whether a former company employee could seek a job with the Maltese financial regulator within two years of the termination of her job. The first court had decided that the restraint of trade clause was against public policy and had no validity at law. But the appeals court overturned the decision, arguing that this was not a restraint of trade clause, but a reasonable condition that had been set for a limited time-period and accepted voluntarily by the employee.
The court argued that such clauses prevented former employees from joining competitors soon after leaving work, especially when they could be able to pass on sensitive information. This did not make it a total restriction of the employee’s freedom to work, but was limited in terms of principal clients.
“The courts have adopted, on a case by case basis, the test of reasonableness, for the time-limits as well as compensation,” Spiteri Bailey told MaltaToday. “The test of the clause being “fair and reasonable’ is a predominant issue in today’s approach by our courts. Whether they adopt a similar approach to revolving door clauses, is, I suppose, anyone’s guess.”
Under the proposal Bill, employers could consider a penalty, rather than a preventive clause for employees hopping into the private sector. “The three-year salary penalty is, to my view, not low at all. It would probably make an interesting test case to see whether a Court, faced with this test, say of a fixed-term employment for three years and the undertaking signed, will deem the refund back of all wages received by way of penalty to be reasonable…”
But while high-ranking civil servants can be expected to abide by rules which are meant to also prevent ambitious leaps into the private sector, it is also a fact that even Maltese MPs and ministers fall foul of the unwritten ‘revolving door’ principle: when the curtain falls on their political life, MPs often dive headlong into company directorships and consultancies frequently related to their own portfolios.
For Spiteri Bailey such a question makes for interesting debate given the way Labour backbenchers are today appointed on boards and very often are also chairing those boards and heading government agencies. “A ‘public employee’ is defined in the Bill as including public officers and employees of government agencies and government entities. To my knowledge… MPs cannot be deemed to be public officers. So, I believe the revolving doors clause will be inapplicable to the MPs who take up positions within government agencies and bodies but who do not fall within the definition of ‘public employee’.
“This said, your question should certainly raise much more discussion and questions and answers, and maybe further clarifications as to an MP’s role within such agency or entity.”
This revolving door process has worked well for many politicians and high-ranking government officials in Malta and abroad. One recent example was former EU commission president Jose Manuel Barroso, who joined US bank Goldman Sachs in early July to advise the bank to mitigate the effects of Brexit: prompting an anonymous group of EU employees to launch a petition in which they described the move as “irresponsible”, “damaging” and “morally reprehensible.”
Barroso’s move was particularly controversial because Goldman Sachs was the same financial institution that confirmed Greece’s readiness to join the Eurozone, despite massive evidence of accountancy fraud.
After stepping down as Commissioner for Fisheries and Maritime Affairs, Joe Borg attracted similar controversy by taking up a position with Fipra: a public relations consultancy firm that lobbies the Commission on maritime issues.
Even closer to home, former minister Tonio Fenech and former FIAU chief Manfred Galdes took up lucrative jobs in the private sector. Fenech, in particular, drifted straight into the world of private investment funds, joining former Bank of Valletta executives, within months of losing his hat as finance minister in 2013.

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Court orders PSC to stop Gozo promotion exercise

Employee should be given information about job interviews
The Public Service Commission has been dealt a blow by the Courts which ordered it to suspend a promotion and give a government employee access to information on job interviews after he claimed the exercise was vitiated.
The commission is a constitutional organ responsible for staffing and discipline within the public service.
Following a law suit against the PSC and the Gozo Ministry by Joseph Bajada, an engineer who felt aggrieved by a recent promotion exercise, Mr Justice Wenzu Mintoff ordered the PSC to freeze the exercise and to give Mr Bajada access to all the information required in order to defend his position.
The issue goes back to last summer when the Gozo Ministry issued a call for the post of assistant director for public cleansing in Gozo.
Despite the fact that he had been deputising for the post issued for promotion since 2006, Mr Bajada, an engineer by profession, placed second in the interview and was awarded two marks less than the applicant who placed first.
Feeling aggrieved, Mr Bajada filed a complaint petition to the PSC, as required by law, challenging the promotion exercise.
His petition was accepted and Mr Bajada was asked to produce his comments and defence in writing, but the PSC refused to give him a copy of the file relating to the way the promotion exercise had been conducted and how the interviewing board arrived at its conclusions.
Despite insisting on his right to access all the information, even through his lawyer Ian Spiteri Bailey, the PSC kept insisting that it would only grant Mr Bajada information about his interview and not those of the other candidates.
The issue was referred to the Civil Court, asking for a prohibitory injunction to stop the PSC from awarding the promotion until he was given access to the documents so he could submit his defence.
The Court upheld his plea and, in a strongly worded judgment, noted that while it would not enter into the merits of who should be promoted, as this was the competence of the PSC, the constitutional body “was bound to observe the principles of natural justice in every process it handles”.
The court made it clear that Mr Bajada should be given access to all the information, including the results of the other candidates, in order to be in a position to make his representations in the best possible way.
The Court threw out an argument brought by the PSC that the promotion exercise should still continue as the government would not be able to meet public cleansing targets if it was not concluded.
The court observed that Mr Bajada has been effectively heading the department since 2006 and nothing was going to happen if the situation was to be prolonged by a few more weeks until his petition was heard and the exercise fully concluded.

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FOUR months from date of EFFECTIVE DISMISSAL

In the case C. Cauchi Cole vs Software Projects 16 Limited, the Industrial Tribunal (5.12.2018) ruled that the 4 month period within which a dismissed employee is to proceed for unjust dismissal before the Industrial Tribunal is to run from the date of the EFFECTIVE TERMINATION of employment.

In this particular case, the employee was dismissed via a skpye call and negotiations for a severance payment commenced. Following the unsuccessful negotiations, the company registered the employees termination.

The employee filed procedures within the 4 months from such registration, but the Tribunal concluded that the effective date of termination was the date of the skype call, in which call, the employee was clearly informed of her termination, so much so that she entered into negotiations about some form of compensation for dismissal.

To that effect, the Tribunal upheld the company’s plea that the case was filed fuori termine.

the company was assisted by Dr Ian Spiteri Bailey.

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Public Service Commission procedure under Court Scrutiny

In a decree issued by the First Hall of the Civil Court on the 5th December 2018, as presided over by Judge Dr Lawrence Mintoff, the Court upheld a Warrant of Prohibitory Injunction filed by Ing Joseph Bajada against the Public Service Commission and the Permanent Secretary within the Gozo Ministry.

The Warrant was filed since the plaintiff had requested access to the PSC file following a petition he filed when results for a post he applied for had been issued. Ing Bajada placed second in a bid to become Assistant Director within the Public Cleansing Section of the Ministry for Gozo. He has been deputizing in this post since 2006, but the selection board gave him 2 marks less than another candidate.

The Court concluded that PSC’s refusal to grant access to the complete file of the selection process was, prima facie a breach of the plaintiff’s rights. The PSC was obliged to carry out its procedures in terms and according to the rules of natural justice, and it was prima facie apparent that the PSC was breaching these rights of the plaintiff when it refused to grant such access.

The Court said that should the PSC process not stop, then the plaintiff will suffer irremediable prejudice, and hence the Warrant was upheld for the plaintiff to file ulterior court procedures in a bid for a Court to investigate further and give the necessary orders.

Ing Bajada was assisted by Ian Spiteri Bailey.
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UHM resort to Court Action over Gozo Channel Dispute

The UHM Voice of the Workers on Tuesday filed for a warrant of prohibitory injunction in court so that the salaries of workers employed by the contractor Executive Security Services Limited on Gozo Channel vessels are safeguarded.
The union said it had to take this decision because the company Gozo Channel had removed from rosters those UHM workers who were following legitimate directives ordered by the union. The objective of a warrant of prohibitory injunction is to restrain a person from doing anything whatsoever which might be prejudicial to the person suing out the warrant.
The UHM said that this case had been ongoing for several months now, so much so that an investigation by the Director for Industrial and Employment Relations (DIER) had to be opened.
The union said that it could not understand why workers had to pass through so much just to be held in the same regard as their colleagues who do the same work. Workers following the unions directives are suffering from intimidation and have even been accused of carrying out “vindictive” measures against Gozitan workers.
It said however that this was not the case, as the workers following the directives are all Gozitans themselves.
It said that the union is going to keep fighting so that justice for these workers who are being discriminated in such a manner is done.

UHM Legal Advisor Dr Ian Spiteri Bailey signed the application.

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Fiduciary Obligations of a Union under scrutiny

The civil court found that the Unjoni Haddiema Maltin – Voice of the Workers (UHM) had acted in a responsible and diligent manner when signing the sectoral agreement for the health sector, and that the union had carried out its duties as per its own statute, a press release issued by the same union said.
The civil court, presided by Judge Joseph Zammit McKeon, was hearing a case instituted against the UHM by 10 professionals within the health sector – Joseph Castillo, Noel Ciantar, Martin Francalanza, Francis Laus, Rita Micallef, John Mifsud, Margaret Muscat, John Salamone Reynaud, Cynthia Scerri and Andrew Scicluna – which was opened in 2013 and where €500,000 in damages was demanded, the Union noted in its statement.

The UHM said that these professionals wanted to be the only professionals to gain a raise in their salaries through a promotion, at the expense of 44 other workers who were eligible for the said promotion. The union said that these 10 professionals expected that even though the government had implemented a reform on the whole sector, which meant that 54 were eligible for promotion, only 10 would be eligible for that promotion.The UHM also said that even after the agreement had been signed, these aforementioned professionals continued to put political pressure up to the point that on the eve of the 2013 election, the UHM received an addendum in favour of the workers.
On their part, the union said that the sectoral agreement was subject to a democratic vote to its members which work within this sector, and that the union had been ready to discuss the terms within the agreement.
The statement goes on saying that the civil court hearing the case on 30 October found that the UHM had acted in a responsible and diligent manner, that it had followed its duties as ascertained in its statute, that it had shown no preference or prejudice to any members, that there was no proof that the union had acted in bad faith, and that after the agreement was signed the union had remained available for discussions subject to the interests of the rest of its members.
The UHM said that throughout the process of the case, it received legal assistance from Ian Spiteri Bailey.

The Malta Independent on Sunday (11/11/2018)

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EUR4000 f’danni wara libel

Josef Caruana, ex-Editur tal-Orrizzont, ser ikollu jhallas is-somma ta’ EUR4000 f’danni lil Christopher u Eleanor konjugi Ciantar wara li l-Qorti tal-Appell ikkonfermat sentenza tal-Qorti tal-Magistrati.

L-Ewwel Qorti kienet sabet illi hafna stejjer li dehru fuq l-Orrizzont matul perjodu ta’ ftit gimghat kienu intizi biss biex ihammgu l-isem u r-reputazzjoni ta’ zewg persuni, Christopher Ciantar, li kien ghal xi zmien, taht amministrazzjoni ohra, kien Segretarju Permanenti fil-Ministeru tal-Ambjent u Eleanor Ciantar, li ghadha ufficjali pubbliku sal-llum u hija mart l-istess Christopher Ciantar.

Il-Qorti tal-Appell, fil-5 ta’ Ottubru 2018, ikkonfermat illi l-istejjer pubblikati fl-Orrizzont ma kellhomx mis-sewwa u kienu intizi biss biex ihammgu r-reputazzjoni tal-imsemmija koppja Ciantar.

Il-Qorti tal-Appell qalet fost ohrajn,

Meta l-qorti tqies il-kwantita ta’ fatti allegati u li baqghu ma gewx ippruvati, ma tistax tikkonkludi li kien gust li jinghad li l-attur kien abbuza mill-kariga tieghu ta’ Segretarju Permanenti sabiex jiffavorixxi lil martu, u li l-attrici kienet abbuzat u gawdiet minn beneficcji li ma kinitx tgawdi li kieku zewgha ma kienx jokkupa dik il-kariga.

Mid-deposizzjoni tal-appellant (Josef Caruana) il-qorti mhijiex f’posizzjoni li tikkonkludi li kien agixxa b’mod professjonali u in bona fede.

Il-koppja Ciantar kienet assistita mill-Avukat Ian Spiteri Bailey ta’ SB Advocates.


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The Times of Malta Editorial

Friday, August 24, 2018, 07:21
Contentious regulations
New vacation leave regulations brought into force through legal notices a few days before the feast of Santa Marija, when most enterprises would be on their annual shut down, raised issues that need to be addressed to ensure any rigidity in employment rules does not discourage the creation of new jobs. This may seem unlikely when Malta is experiencing almost full employment but when the economic cycle changes, reversing rigid regulations may prove difficult.
The first contentious element in the introduction of the new vacation leave regulations relates to the degree of consultation the government had with the social partners. The Malta Employers Association’s director general, Joe Farrugia, was surprised with the changes. The General Workers’ Union insisted the measures were debated as part of a broader set of proposals in the Employment Relations Board.
However, four employer associations accuse the government of introducing the changes “by stealth”. They threatened to boycott meetings of the Employment Relations Board and the government reacted by suspending the new regulations as “a sign of goodwill” and to allow further discussion.
Trade unions reacted somewhat differently to the changes. The GWU praised the government move and expressed satisfaction for “continuously being consulted by the government authorities and national organisations”. The UĦM Voice of the Workers noted that the “regulations seemed to be skewed towards workers”, insisting no proper consultation took place.
One of the most controversial aspects of the new regulations is that annual leave entitlement will accrue even when the employee is on maternity, sickness or injury leave and when on unpaid leave. Understandably, employers feel this is a step too far in improving employees’ rights as it would increase costs and make some businesses less competitive.
Industrial relations lawyer Ian Spiteri Bailey, expressed concern about a new rule, which lays down that once granted, leave cannot be revoked under no circumstances whatsoever. While workers rightly expect to be granted leave in exceptional circumstances, employers who face special business circumstances should have the same right too. What is an employer supposed to do if half of the labour force is affected by a flu epidemic when the rest are planning to take their agreed vacation leave?
The shutdown leave regulation is a more reasonable proposition. Employers can now utilise up to 12 working days from the annual leave entitlement for the shutdown period. In this way, employees can utilise their leave entitlement as suits their circumstances. Employers understandably object to the government’s pledge to compensate public holidays falling on a weekend with an additional day of leave. Malta already has one of the most numerous lists of public holidays in Europe. Extending that list is unlikely to do local businesses any good.
No party sitting at the table in an Employment Relations Board meeting should be faced again with a fait accompli when it comes to introducing employment conditions regulations. Some aspects of the new regulations are arguably desirable and in line with industrial relations developments in Europe. But putting employers at a distinct disadvantage against their international competitors is an economic risk to be avoided.
A fresh round of talks between social partners will, hopefully, lead to a solution that will benefit employees while not harming competitiveness.
This is a Times of Malta print editorial

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Common Sense prevails …. but!

New vacation leave rules suspended after employers announce boycott
Government suspends legal notices following employer fury

Updated at 6.30pm – Legal notices suspended
Changes to vacation leave regulations have been suspended just days after coming into effect, following uproar by employers’ associations.

In a statement, the Equality Ministry said it would be suspending legal notices related to changes to work conditions and going back to the negotiating table “as a sign of goodwill”.

The climbdown came hours after all four employer lobby groups announced a boycott of Employment Relations Board meetings.

The revised system allowed annual leave allotment to continue to accrue even when employees were on maternity, sickness or injury leave and even when on unpaid leave.
Moreover, the new regulations stated that, once granted, leave could not be revoked under any circumstances whatsoever. Also, employers could only utilise up to 12 working days from the annual leave entitlement for the shutdown period.

NB : This is all well and good. But there are serious concerns as to what the legal certainty is. A Legal Notice remains in force as law no matter what a Ministry may say. It takes another Legal Notice to suspend, or better still, repeal the previous ones, to give legal effect to the Ministry’s position. (ISB)

Employers reacted furiously to the changed laws, saying they would result in higher payrolls, and on Tuesday evening the government said the Industrial Relations Department would be suspending legal notices “related to work condition”, which it insisted has been discussed with social partners prior to coming into force.
Employment and industrial relations lawyer Ian Spiteri Bailey raised the matter in an opinion piece appearing on Times of Malta.
Apart from vacation leave, he also focused on new payslip regulations enacted concurrently. The changes came into force through legal notices 371 and 374 of 2018 published on August 10.
Dr Spiteri Bailey questioned the level of consultation with the social partners on the changes, expressing concern on several aspects.
The regulations could place employers in a straightjacket, especially the provision that leave could not be revoked, he told this newspaper.
“While workers have the right for emergency leave, there is no such provision to cater for exceptional cases whereby employers could risk seeing their company grind to a halt due to a sudden shortage in their workforce. This might give rise to a situation whereby there is no level playing field,” he warned.
A situation whereby there is no level playing field
Dr Spiteri Bailey also raised questions on the new rules about payslips.
“Will employers be given a transitional period to include the added information that is now required by law to appear in the payslip? What will happen if some data is missing? Will the employer be liable to a fine for every single worker on his books,” he wondered.
The Malta Employers Association’s director general, Joe Farrugia, expressed himself surprised with the changes.
He recalled that employers had already objected to the government’s pledge to compensate public holidays falling on a weekend with an additional day of leave but they had other concerns too.
“It is not fair that workers keep accruing vacation leave when they are not reporting for work, say during maternity leave, when sick or even when they are on unpaid leave,” he said.
He said the matter would be raised at the next meeting of the Employment Relations Board, adding he did not recollect debating the new regulations within this entity.
On the other side of the spectrum, the General Workers’ Union lauded the government’s move and insisted the measures were debated as part of a broader set of proposals within the ERB.
The amendments addressed loopholes, grey areas and issues we had been flagging for years, a spokesman said.
The union was continuously being consulted by the government authorities and national organisations on various subjects, he said.
“A case in point are the proposals we put forward to eradicate precarious employment, the issue of public holidays falling on a weekend and the European Directive on the posting of workers,” the spokesman continued.
Questions on timing and consultations leading to the changes were raised by UĦM Voice of the Workers CEO Josef Vella.
Noting that the regulations seemed to be skewed towards workers, he said that no such debate had been held recently within the ERB, at least since the start of this year.
“I would have expected a draft of these legal notices to be circulated in advance rather than have these changes enacted like a bolt from the blue,” he said.
The Ministry for European Affairs and Equality, which published the regulations, insisted that, apart from the Employment Relations Board, the changes had also been on the agenda of a national public conference.
Reacting to the employers’ criticism that the leave regulations would increase costs, a ministry spokesman noted that the measures were necessary to ensure that national laws were in line with decisions made by the European Court of Justice.
Amendments addressed loopholes and grey areas
Asked if there would be a transitional period for companies that do not adhere to all payslip regulation requirements, the spokesman said the Department of Industrial and Employment relations always warned non-complying employers in advance before taking action.
However, he was rather evasive when asked to clarify whether companies in breach would be slapped with a global amount or a cumulative sum for every employee on its books. The spokesman merely referred this newspaper to the legal notice saying those found guilty would have to pay a fine.
As for the possibility of the employers being empowered to revoke leave in exceptional circumstances, the spokesman said the right to urgent family leave, amounting to 15 hours a year, was stipulated by subsidiary legislation (452.88).
The four employers associations – the Malta Chamber of Commerce, Enterprise and Industry, the MEA, the GRTU and the Malta Hotels and Restaurants Association – said they would boycott meetings of the Employment Relations Board until the situation was rectified.
“These legal notices were introduced without the knowledge of or any form of consultation with employer bodies on the eve of Sta Marija, a period commonly associated with shutdowns,” they said in a joint statement, describing the legal notices as having been introduced “by stealth”.
“What is the point of having a body like the ERB in the first place if normal procedure is not followed and the authorities are introducing legal notices without prior consultation?”

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