From One Generation to the Next – The ‘Pass it on’ Method of Port Workers’ Licences in Malta

Authors: Ann Bugeja & Christine Borg Millo

The current method of how licences are obtained by port workers in Malta is controversial. The issue mainly lies in the fact that once a port worker stops working in their role, their family members may be allowed to take over their position. This reality clearly infringes employment rules of the European Union (EU), and to this end, the European Commission (EC) has had to take matters in its own hands.

In fact, on the 29^th of September, 2022, the EC instituted infringement proceedings against Malta in relation to this topic.[1] The EC expressed its dissatisfaction towards the legislation governing the succession of port labour licenses from one family generation to the next, in that it goes against basic EU principles (such as the free movement of workers, the freedom of establishment and the freedom to provide services).

The TFEU rejects the existence of any discrimination based on nationality between workers of the Member States as regards employment, remuneration and other conditions of work/ employment. Furthermore, all restrictions on the freedom of establishment of nationals of a Member State in the territory of another Member State and restrictions on freedom to provide services within the Union[2] should be prohibited at all costs – this essentially goes against the spirit of the TFEU.[3]

The Applicable Law for Port Workers

The Port Workers Ordinance

Primarily, the employment of port workers is regulated by the archaic 1966 ‘Port Workers Ordinance’, Chapter 171 of the Laws of Malta (the ‘Ordinance’), which was amended last in 2009. It initially delineates the role of a ‘port worker’ who is a person employed in a port, for temporary services mainly involving the handling of cargo when loading on, or unloading from, a vessel, to another place on shore or offshore, like a warehouse or vehicle.[4]

As a general rule, a port worker must be registered with the Authority for Transport in Malta (the “Authority”) in the Port Workers Register[5] to take on this role, and registration is limited to a period of 1 year, unless renewed. This permission is personal and thus cannot be transmitted from one person to another.

The obligations of licenced port workers are listed in the Ordinance. However basic working conditions such as working hours and rest periods, as well as the protection of payment of wages, which are stipulated under the Employment and Industrial Relations Act (the ‘EIRA’) must still be observed. Specifically, payment of wages to port workers by their employers must take place within 3 days from the date when the work was completed.

Likewise, the supply of port workers for particular port work or to particular employers shall take place by and at the discretion of, the Authority. Typically, there is a tri-partite relationship in such circumstances, and since the port workers are under an employment contract with their employers, the Authority may interfere in this employer/employee relationship of port workers, to either supply port workers to a specific job or supply workers to particular employees. In this scenario, the Authority shall also decide on the fees due to be paid to port workers, collect fees and pay the workers the fees due to them. Social security contributions must also be payable by the employer to the Authority as per the Social Security Act. The Authority must keep proper records of the employment of port workers, including keeping record of their working attendance, or otherwise, their returns, and administrative surcharge.[6] The Authority may also ask from any employer for documentation or information regarding any port worker.

The law furthermore establishes a Port Work Appeals Board and a Port Workers Board. The former consists of a Chairman of recognised standing and 2 other members who in the opinion of the Minister, have experience in maritime, financial or administrative matters. The Minister shall also appoint a person to act as a secretary to the Port Workers Board with no voting powers. The functions of the Appeals Board are namely two-fold, that is; appeals of decisions taken by the Authority regarding tariffs for transhipment operations of port workers or their employers and any disputes on such transhipment tariffs. Such appeal from previous decisions may only take place within 15 days from which the decision or directive is officially communicated to the port worker, or employer.

Secondly, the Port Workers Board is made up of 5 members and a Chairman of experience in port matters, who is appointed by the Minister. Two members are nominated by the employers of port workers, two other members are nominated by the port workers themselves and a secretary (appointed by the Minister) who holds no voting powers. They determine, among others, the discipline of port workers, the selection of persons who are qualified to fill a work vacancy, the conditions of employment and the organisation of workers, and also the possible deregistration of port workers.

The registration and role of a port worker ceases to exist in 4 scenarios:

1. If the port worker reaches 63 years old or such lower age as may be prescribed from time to time;
2. If the port worker is no longer a fit and proper person to be a port worker for any cause whatsoever, as decided by the Board;
3. If he became absent from work without due reason; or
4. If he allows someone else to take on his role as port worker in his stead.

The Port Workers Regulations

The role of port workers is also regulated by the Port Workers Regulations, under Subsidiary Legislation 171.02 of 1993 (the ‘Regulations’), and was quite recently amended by Legal Notice 135 of 2017. The latter Legal Notice, which differs from and is in contrast with the Port Workers Ordinance explained hereabove, contained a significant modification regarding how a worker may, easily, yet arguably unfairly, obtain a work licence from inheriting it from his family member.

Port workers who are younger than 18 years of age, or older than 45 cannot be eligible to be registered as a prospective port worker.[7] Any eligible candidate must be duly examined by a medical practitioner, prove that they are a fit and proper person to be a port worker as well as show that they possess the right qualifications, skills and abilities determined by the Authority and the Port Workers Board. Furthermore, they must have never been convicted, or have never been declared guilty, of theft or fraud or a criminal offence which, in the opinion of the Authority, is deemed to be detrimental to the provision of port work.

Once there is a vacancy following retirement of death of a previous worker, new workers, satisfying the previous qualifications at law,[8] can be eligible to take on the role from the Prospective Port Workers Register. As stated Regulations, this is “limited to the son or daughter, or to the elder from among the sons or daughters, of a port worker”; where the latter was registered as a port worker as on the 17^th of September 1990.  If the worker has no son or daughter, their eldest brother or sister may instead fill in the vacancy. There should be no discrimination based on sex in the choice of the process of licenses’ succession, as seen in Victoria Cassar et vs Carmel Schembri noe, 26^th May 2017 Court of Appeal (Superior Courts), in which the Court stated:

“l-attrici Victoria Cassar tista’ tigi registrata bhala haddiem prospettiv jew persuna elegibbli biex tigi konsidrata bhala haddiem tal-Port wara li jigu sodisfatti certi kriterji li jsiru normalment u cioe`, li jsir test mediku u li tigi ezaminata l-kondotta tal-attrici….“Wara li jigu sodisfatti dawn il-kriterji l-attrici tkun tista’ tigi registrata bhala persuna eligibbli biex tigi konsiderata bhala haddiem tal-Port wara li rtira missierha Carmelo Abela mix-xoghol”.

Succession of Licences – The Issue

Under the Regulations, the law first stipulates that a port worker registered in the Port Workers Register cannot be replaced by a son, daughter, brother or sister, following their death, retirement or due to medical issues that render the worker unfit to continue working. However, the law then lists 3 exceptions crucial to this discussion.

It goes on to state the following three crucial points, that are;

1. Firstly, this rule does not apply to those workers who died, or died at work, and in these cases, they will be permitted to be replaced by a son or daughter.
2. Secondly, port workers who, prior to the 10^th day of June 1975, were licenced to work in the general cargo stevedores’ section, lightermen’s section or port labourers’ section, will be replaced by a son, daughter, brother or sister, and;
3. Thirdly, and most importantly, port workers who were licenced on the 23^rd of October 1992, or else during October 2004 and 2017, may be replaced by a son or daughter, subject to the provisions of the Regulations, and unless the vacant role has been already filled by another prospective individual.

The law continues to emphasise the “eligibility” of the prospective family member worker, with regard being had to any documents or certificates that the Authority may require for their registration as port workers. Interestingly, a person is only eligible to work as a port worker if he first obtains “a training qualification…as approved by the Authority, from a training institution recognised by the Authority”.[9] The Regulations however falls short of listing what the proper training qualifications essentially are, and instead gives a relatively wide discretion for the Authority to select what proper training is required for future port workers, including those family members which take over.

The Way Forward

By permitting family members in Malta to pass on their licenses as a Port worker to the respective next-of-kin defeats the whole scope of basic principles of fairness, equality and non-discrimination. Every worker should be granted with a Port Worker Licence for their own personal merits, without the interference of family bias and favouritism. The local selection system currently in place indeed restricts the work freedoms within this sector.

In light of the above considerations, Malta had until the 29^th November 2022 (2 months from receiving the formal notice dated 29^th September 2022) to comply with the opinion presented by the EC, and amend its legislation. Since to date it did not, there is now a possibility that the EC will bring the matter before the Court of Justice of the European Union. The Courts will then take the necessary steps to ensure that Mata complies with the opinion, and, it may even impose a penalty payment.

Concluding Remarks

Any person should always be free to fill the vacancy of a port worker, without feeling fearful that this work opportunity will be turned down, without question, by the local Authorities, simply due to the permissible family ‘pass it on’ legal trend.

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[1] This on the basis of Article 258 of the Treaty of the Functioning of the European Union (TFEU), which may be accessed here.

[2] Article 56 of the TFEU

[3] Article 49 of the TFEU

[4] The handling of cargo includes cereals, seeds and grains, meats, gas cylinders and bitumen or asphalt in drums, but excludes that cargo transported between Malta, Gozo and Comino, coke or coal in bulk, oils and wines, farm animals and fish, bitumen in bulk, motor vehicles and commercial vehicles of a maximum of 10 tons.

[5] As established through Article 10 of the Port Workers Regulations, where the register shall contain a section clearly indicating the names of persons, other than prospective port workers, eligible to become port workers.

[6] The surcharge, or additional charge, is calculated at such percentage of the gross wages of port workers, as prescribed by law.

[7] Refer to Article 11(3) of S.L 171.02

[8] Refer to the case John Elton Mifsud vs Port Workers Board et, First Hal Civil Court, on the 25^th of February 2021, Case Number 104/2019, which proved how the succession of a Port Workers’ licence cannot be passed onto a family member below the age of 18. It was explained that: “madankollu l-istess Vincent Mifsud ma setax jirregistra lill-ibnu l-esponent biex jiret il-pozizzjoni tieghu skont il-ligi u dan ghaliex fiz-zmien li rtira l-esponent kellu hmistax-il sena u kwindi ma kienx tal-eta`. Ta’ min ifakkar illi s-sistema` li kienet tithaddem fil-Port hija simili ghal sistema “closed shop” u dana billi d-dritt tax-xoghol jintiret mill-genitur favur l-akbar mill-ulied (ara Regolament 13 ta` L.S. 171.02).”

[9] Refer to Article 15B of S.L 171.02