Issue link: https://maltatoday.uberflip.com/i/1528241
10 OPINION maltatoday | WEDNESDAY • 23 OCTOBER 2024 Junior minister Andy Ellul said the government plans to implement some form of mandatory union membership "well before" the end of its term in office IT is necessary to delve deep- er into why union membership should never be made compul- sory at law, more so that the ultimate objectives for the un- ions' insistence on such a pro- posal can be reasonably and legitimately achieved by other means. Our courts, when dealing with labour rights from a hu- man rights perspective, have had to address complex ques- tions for reasons involving entitlements, either as social entitlements or as collective claims. A labour right that il- lustrates the issue, included in both civil and political and socio-economic rights docu- ments, is freedom of associa- tion. There must be an integrated approach to the interpretation of such a right, a method in- creasingly preferred by the Eu- ropean Court of Human Rights when examining work-related complaints. I believe a reasonable solu- tion can be found to the appar- ent tension between individual rights and collective interests of labour that is commonly ar- ticulated in both the case law and leading experts in the field. The right to form and join trade unions, the freedom of organisation, has two social and legal functions. It is a civil liberty, a human right and an aspect of freedom of association. Its existence and adequate guarantees for its exercise are, however, also in- dispensable conditions for the operation of collective labour relations. One problem that often ap- pears to obstruct the effective protection of freedom of as- sociation as a human right is the apparent tension between these two aspects of the right. Not long ago, the main reason behind the call for mandatory union membership used to be to find a solution to the prob- lem of 'free-riding', namely the enjoyment of benefits earned through union struggles by those who did not contribute to the relevant burdens. Today, however, the reason or, rather, the excuse for such a call is to prevent any exploita- tion of non-unionised work- ers, especially those coming from third-world countries. Indeed, one of the four models proposed by junior minister Andy Ellul is that of obliging third-country nationals to be in a trade union. Would such a model give rise to closed-shop agreements? These are agreements between one or more employers and one or more workers' organ- isations, according to which an individual can only be em- ployed or retain her job upon the condition of membership to a specific union. Of course, trade unions favour closed- shop arrangements, for they lead to increased union mem- bership and can negotiate the terms and conditions of em- ployment with the employer more effectively. Yet such agreements provide an excellent illustration of the interplay between the individ- ual and the collective aspects of the right to associate. Is compelled union member- ship as a condition to get a job or remain employed compat- ible with human rights law? Workers should be free from such a compulsion, and this is an important principle in modern liberal societies dic- tating that trade unions should not have the ability to exercise power on the individual, simi- lar to the coercive power of the state. Compelling any worker to re- late with others in a trade un- ion with whom there is deep disagreement to achieve some other purpose, however valua- ble that purpose, is unaccept- able. That notwithstanding, there may be alternative means by which employees who choose not to belong to a union can benefit from union-negotiated settlements without being un- ion members. They could, for example, be expected to con- tribute union dues or an equiv- alent amount without any obli- gation to obey opposed union directives. Again, foremen, supervisors and certain levels of managers could compromise their super- visory or managerial obliga- tions if they are forced to join a union. True, another model proposed by Andy Ellul is that mandatory union membership be only for low-wage earners. But what if another model pro- posed by Ellul, namely that of a system in which every employ- ee is a union member, is ulti- mately the one preferred and voted for? In such an eventuality, those supervisory and manageri- al positions can be allowed to share any terms accorded by union-negotiated settlements and may or may not be re- quired to pay union dues. From another perspective, how would mandatory union membership affect people in informal employment? This could pose a challenge when considering that collective bargaining is usually limited in law to workers considered to be "employees" or to those in formal employment. In this sense, therefore, it is crucial to consider national labour market characteristics before going along with any model of mandatory union membership. The point remains that an individual does not enjoy the Union membership: a right or a duty? Mark Said is a veteran lawyer Mark Said