Recommendation not implemented: Final Opinion on discriminatory practices against union members in Education

Recommendation not implemented: Final Opinion on discriminatory practices against union members in Education

Published November 20, 2024

In accordance with Article 22(4) of the Ombudsman Act, the Ombudsman and the Commissioner for Education have forwarded to the House of Representatives the Final Opinion on a case concerning discriminatory practices against members of the Union of Professional Educators (UPE) employed as Learning Support Educators in state schools.

The complaint

The Union of Professional Educators (UPE), in its own name and on behalf of its members, filed a complaint against the Ministry responsible for education on 23^rd February 2024. The union alleged that its members faced discriminatory treatment when following UPE-issued directives. Specifically, some heads of school requested written proof of UPE membership before allowing members to follow the directives. This occurred notably in primary schools in San Ġwann, Ħad-Dingli, Ħal Għaxaq, and Żejtun A.

The union further claimed that no such requirement was imposed on members of the Malta Union of Teachers (MUT) or any other union. Additionally, an incident at one school allegedly involved harassment of UPE members during a staff meeting, which the union argued was discriminatory and in breach of the right to freedom of trade union association.

Facts and findings

The investigation confirmed that UPE members were being asked to produce a written "personalised union directive" when following UPE-issued directives. This practice was not applied to members of other unions, creating an unjust and discriminatory requirement for UPE members.

While the Commissioner took note of an incident involving heated exchanges between a head of school and a UPE member, he found that it did not meet the threshold of harassment or maladministration under the Ombudsman Act. Consequently, this aspect of the complaint was dismissed.

The investigation also reviewed the legal framework regarding union directives and membership. The Commissioner found that:

• The Employment and Industrial Relations Act does not include the term "collective directives," which the Education Authorities cited as justification for their stance.
• Requiring proof of UPE membership infringes on privacy rights and is possibly inconsistent with GDPR requirements.
• The practice is unreasonable, unjust, and undermines, through the “chilling effect”, the right to free and unhindered union membership as protected by Article 11 of the European Convention on Human Rights.

·    The Commissioner concluded that the Education Authorities' directive to require personalised proof of UPE membership was in breach of Article 22(1)(2) of the Ombudsman Act.

Conclusions and recommendation

The Commissioner upheld the complaint to the extent that requiring a "personalised union directive" for UPE members to follow their union’s directives is discriminatory and contrary to the law.

The Commissioner recommended that the Education Authorities immediately cease requiring a “personalised union directive” from UPE members (as outlined in directive/circular DG DES 14/2024).

Outcome

Through its Permanent Secretary, the Ministry responsible for education has indicated that it does not intend to abide by the recommendation to cease and desist from insisting on a “personalised union directive” for members of the UPE.

Consequently, after the report was sent to the Prime Minister and no action was taken, the Ombudsman and the Commissioner for Education forwarded the Final Opinion, together with the correspondence between the Office and the Permanent Secretary after the opinion was submitted, to the Speaker for further consideration by the House of Representatives.