Police inspectors protest over missed promotions

Three senior police inspectors who were denied promotion to the rank of superintendent after a downgrading of their marks by the Public Service Commission, have taken their grievances to court.

Malcom Bondin, Priscilla Caruana Lee and Jesmond Micallef filed a judicial letter after their ‘pass’ was changed to ‘fail’ in a revision exercise conducted by the Public Service Commission. The review was carried out at the request of a third party, about which the three successful candidates were unaware.

The issue stemmed from a call for the filling of vacancies in the rank of superintendent, issued in August 2019. The three senior inspectors applied,  and their names subsequently featuring among the list of successful candidates published by the PSC in March.

But their results were downgraded following a revision by the commission,  without any notification being sent to the three candidates concerned.

A backdated explanation by the PSC was not “legally acceptable,” said the inspectors in their letter filed against the Commission, the permanent secretary at the Ministry for Home Affairs and National Security as well as the Police Commissioner.

The three argued that having succeeded in the contest, they had a legitimate expectation that their result would not be altered.

Although the commission was empowered to vary results, that did not give it a ‘carte blanche’ to take arbitrary decisions which proved detrimental to contestants, argued lawyer Ian Spiteri Bailey in the letter filed on Monday.

In this case, there had been no wrong calculation which could serve as explanation, but the results had been varied because the goalposts were shifted and this was not acceptable. The PSC ought to have, at least, informed the three candidates and offered them the faculty of airing their views.

Not only did they get to know late, but they were also denied the right to file a petition to contest the Commission’s decision.

Spiteri Bailey said the commission was not “above the law,” and the principles of natural justice had been breached.

He called for the withdrawal of the revised results and for the authorities not to proceed with implementing those results, warning that unless the matter was resolved within a week, the inspectors would take further legal action to review the commission’s decision and also to claim damages.


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MATCA, the Malta Air Traffic Controllers Association has won the right, if ever it was in doubt, to call it members to obey legally valid directives in view of an industrial dispute in place. This was affirmed by the First Hall of the Civil Court presided over by the Chief Justice in a decree given today  10th July, following a warrant of prohibitory injunction attempted by MATS, their employer.

Jibda biex jinghad illi s-servizz soggett ghal dan il-mandat hu wiehed essenzjali u ghalhekk ma jistax jitwaqqaf. Daqstant iehor hu principju rilevanti illi trade union ghandha kull dritt li tohrog direttivi specjalment fejn gia hemm avviz ta’ tilwima industrijali u ma titnezzax mill-funzjoni ewlenija taghha li thares il-jeddijiet tal-membri taghha fl-interess taghhom sakemm mhux ghal ragunijiet gravi jew serji.

The Court also affirmed that whatever agreement was reached between the union and employer during the pandemic, was temporary in nature and should not be, unless there is agreement, prolonged to the period when the pandemic is no more.

Lastly, and equally very importantly, the court said “sitwazzjonijiet simili ta’ nuqqas ta’ qbil ma jigux solvuti b’mandat ta’ inibizzjoni izda bil-proceduri ta’ natura industrijali li huma accessibbli ghal partijiet”.

MATCA was assisted by Dr Ian Spiteri Bailey

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TAX DEFERRAL SCHEME for Companies & Self-Employed

COVID-19 Fiscal Assistance – Postponement of Payment of Certain Taxes

Publication Date: Mar 20, 2020

​Tax Deferral Scheme:


  1. Objective: to improve business liquidity by easing pressures on their cash flow arising from the economic impact of the coronavirus pandemic and encourage the retention of employees
  2. Eligible Taxes: Provisional tax, Employee taxes, maternity fund payments and social security contributions, social security contributions of self-employed persons and Value Added Tax
  3. Period covered: Eligible taxes which fall due in March and April 2020
  4. Settlement period: Eligible taxes (excluding Vat) to be settled in four equal monthly instalments in the four month period between May and August 2020. VAT dues to be settled in two equal instalments with the two quarterly returns immediately following the quarter whose dues would have been deferred
  5. Benefit: No interest or penalties to be charged in respect of eligible taxes that would have been deferred in terms of this scheme.
  6. Beneficiaries: Companies and self-employed persons that suffer a significant downturn in their turnover as a result of the economic constraints arising from the coronavirus pandemic and, as a result face substantial cash flow  difficulties as identified in the online application form. Companies and self-employed persons not adversely hit are advised and encouraged not to avail themselves of this scheme. Ideally, eligible taxes should continue to be paid every month and on time because that would make for good business management.
  7. Specifically excluded: Companies and self-employed persons which have failed to comply with their tax obligations (submission of documents / returns and payments) falling due by the 31st December 2019.
  8. Forfeiture of benefit: The benefit granted under this scheme shall be forfeited if the beneficiary is found to be in breach of any of its terms and conditions making use of this scheme under false pretences. In case of forfeiture, beneficiaries will have to settle their dues as demanded by the Commissioner for Revenue and such payments shall be subject to interest or penalties as stipulated by law.
  9. Submissions: the benefit granted under this scheme shall not remove the obligation of beneficiaries to submit documents and returns by the due date as required by law.
  10. How to apply: One is required to complete and submit an online application form available on the Malta Enterprise website. Such application is to be made not later than the 15th April 2020.
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Call for the Facilitation of Teleworking Activities

Click to access Call%20for%20the%20Facilitation%20of%20Teleworking%20Activities%2015-03-2020_0.pdf

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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, Newsbook.com.mt 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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