The Malta Independent 14 July 2024, Sunday
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Suppression of a fundamental right?

Mark Said Sunday, 14 May 2023, 09:00 Last update: about 2 years ago

Apparently, some individuals and organisations just do not want to know better. They are at it again. The General Workers Union has again insisted on its proposal for mandatory trade union membership. It had already floated the idea in its pre-budget document for the 2019 budget, with the proposal fuelling controversy and objections, not least from employers. In its last election manifesto, the Labour Party had already agreed in principle to forcing workers to join a union. Even the UHM had promoted mandatory trade union membership to apply for low-income workers, as they are the most vulnerable to exploitation. It had also called for measures to combat the phenomenon of free riders, those who benefit from improved conditions thanks to a collective agreement negotiated by a union without actually being members.

The justification for any such move would be to boost the fight against precarious employment and exploitation in sectors where unionisation is very low or nonexistent.

Justification or otherwise, logic dictates to me that we should first start off by defining the fundamental right to freedom of association. This is found in Article 42 of our Constitution, the foundation for the rule of law. Except with his own consent or by way of parental discipline, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right peacefully to assemble freely and associate with other persons, and, in particular, to form or belong to trade or other unions or associations for the protection of his interests.

This fundamental right is also found in Article 11 of the European Convention on Human Rights, which Malta ratified and transposed into local law. This fundamental right encompasses a negative right not to associate in addition to its positive right to form and join an association. While compulsion to join a union does not always breach Article 11, it does so when it strikes at the very substance of the provision. This is precisely what the GWU and UHM would be doing in furtherance of their proposal.

The few legal advocates supporting the cause for compulsory union membership are trying to lay its legitimacy on what is provided, by way of exception or limitation, in that constitutional article. Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of that article to the extent that the law in question makes provision for the purpose of protecting the rights or freedoms of other persons.

Yet, one must not stop there, since that constitutional article contains an added proviso that is conveniently being ignored. The proviso is to the effect that any law enacted by virtue of the exception or limitation mentioned above must be shown to be reasonably justifiable in a democratic society. Now, this is the crux of the matter in question.

Those promoting the idea of compulsory union membership want workers to think they can be forced to join a union as a condition of continued employment. The union-employer agreements that accomplish that in certain foreign countries are called “union security” clauses in collective bargaining pacts.

It is time that employed workers, especially foreign ones hailing from areas outside the EU, be made fully aware of their legal rights. Employment law gives employees and other categories of workers certain basic protection against being penalised because they are, or are not, members of a trade union or for other reasons relating to union membership, such as taking part in union activities at an appropriate time.

Closed-shop practises or arrangements cannot be enforced against employees or prospective employees.

Workers can never be refused employment or any of the services of an employment agency because they are not members of a trade union or will not agree to become or remain members.

On the other hand, workers have the right not to be excluded or expelled from a trade union. Union members whose subscriptions are paid by direct deduction from their pay have particular legal protection applying to those types of arrangements.

And, by the way, freedom of association also extends to employers. They can choose whether to join an employer association or not.

At law, this is the full position concerning the employment and industrial rights of workers, and in order to somehow alter its consequences or try to add to its statutory limitations, it would require not just obtaining a two-thirds majority vote in Parliament to amend article 42 of the Constitution but also overcoming any legal challenge to such an amendment should any affected individual choose to enforce his fundamental rights in front of the European Court of Human Rights. Quite a long shot, I must add!

The move to somehow increase unionisation might be a commendable one, but the GWU’s and UHM’s approach is completely wrong and inherently anti-constitutional.

Compulsory membership can never be compatible with individual rights because trade unions have the ability to exercise power over individuals, similar to the coercive power of the state. Human rights and labour law are competitive areas by definition. The goals served by the two bodies of rules are incompatible, as the case law of the ECHR clearly indicates by denying any actual advantage to trade unions and their members.

If those quarters selling their agenda for mandatory union membership persist in their non-sensical and untenable quest, it would only constitute a big downward slide in upholding the rule of law.

Worse, if they manage, by hook or by crook, to reach their objective of having in force compulsory trade union membership, that would only mean another affront to the basic tenets of the rule of law.


Dr Mark Said is a lawyer

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