Collective agreements from a legal perspective

Abstract

Collective agreements remain the most common method of establishing employment terms and conditions beyond the provisions of the Employment & Industrial Relations Act and subsidiary legislation thereto. They provide, in most cases, coverage of an entire workforce of an enterprise. Such collective agreements acquire the force of law and are subjected to the jurisdiction of the industrial tribunal and other Courts of Law thereinafter. The aim of this dissertation is to examine the legal evolution, the practical use, the salient legal issues, and the drafting form of collective agreements concluded between Unions and Employers within the context of Maltese legislation. The dissertation shall depart from the notions of collective bargaining and the subsequent collective agreement and the evolution of collective agreements. This would entail assessing how industrial relations legislation came into effect to allow, complement and substitute collective agreements in time. In particular the dissertation shall assess salient legal issues pertaining to collective agreements. Such main issues shall include the legal context on entry and for existence of an agreement and the impact of a collective agreement at law; enforceability thereto; the act of stipulating for third parties; the correlation and abdication from minimum provisions at law; pacta sunt servanda principles; effective date of entry including retroactivity; and duration, renewal, novation and transfer of business concerns. A further analysis will focus on collective agreements and their legal standing and coverage of the workforce within the context of the distinctions, even at law, between the public service and the rest of the employment sectors in Malta. This entails identifying reasons and outcomes for distinctions in legal approaches with a further in-depth analysis categorizing collective agreements in the general employment sectors in Malta. An assessment of the form of collective agreements shall ensue. This shall entail an examination of standard collective agreement clauses and other new trends of drafting being used to regulate all terms and conditions of the relationship between the employer and the employees. This, along with analysis of the 1967 MEA-GWU model agreement, will enable conceptualization of a present day standard form collective agreement as a model for cross sectoral adoption. Ultimately the dissertation shall analyse the existing position of collective agreements under local law and shall identify possible developments that may improve the position, including legislative reforms and other mechanisms, whilst producing a new model collective agreement and recommending future debate or possible further research.