According to law, a minimum of seven members is required for the registrar of trade unions to accept to register and bring a union into existence. The registrar will ascertain the veracity of the membership of these seven persons, the registration will be accepted and this will allow this union to start functioning.

Such a union will work towards increasing its membership and will start to relate with employers. The role of the union is to offer guidance and support to its members in their relations with their employer. The union will guide and defend employees in work disputes and will constantly apply itself to support sustainable improvements in work conditions. Unions and employers have a mutual interest to have a workforce that is contented and efficient.

Over the years, the law and custom and practice have established procedures to allow unions and employers to effectively relate with each other. The more members a union has, the better it can fulfil its role. A union’s best operative tool is a recognition, within a company, to exclusively represent all employees.

This ‘recognition’ right is obtained once a union proves to the registrar that 50 per cent plus one of such company employees are effectively its members. Recognition grants exclusive representation rights to the union and allows it to proceed and negotiate a collective agreement – the primary instrument to achieve improved work conditions for all, members and non-members.

Through a collective agreement a company binds itself to exclusively communicate with the majority recognised union on anything collectively concerning the workforce. Furthermore, the majority recognised union acquires the exclusive right, in a dispute, to issue legitimate directives to the workforce.

However much the ITS had a justification and a right to take action, the maximum sanction of dismissal was too harsh- Arthur Muscat

In obeying the directives, exclusively given by this recognised union, an employee, being a member or a non-member, enjoys full immunity and is protected from any punitive repercussions. These rights are guaranteed to protect the authority of the recognised union in its operations.

To avoid that disputes become intractable through a fragmented involvement of minority unions, these rights do not apply to minority non-recognised unions. This is why an employer, who deals with a majority recognised union, is precluded from communicating, on collective matters, with a non-recognised minority union. For the same reasons, an employer is shielded from illegitimate directives coming from such a minority union. This set-up contributes towards a reasonable balance of power and ensures a relationship that functions and is stable.

It is clear and established that a minority non-recognised union cannot discuss work collective matters with an employer, nor can it register a dispute and issue directives and order its members to take industrial action. There is no protection and immunity to employees obeying such illegitimate instructions.

It is quite irresponsible for a minority non-recognised union to behave this way and expose members to drastic repercussions. Currently, there are a number of employees who have seen their employment terminated for obeying illegitimate directives, which were issued by the UPE, Union of Professional Educators, a minority non-recognised union.

However much the employer, the Institute of Tourism Studies, had a justification, and a right to take action, I personally feel the maximum sanction of dismissal was perhaps too harsh. It is hoped that, with meaningful dialogue between employers’ associations and mature and responsible unions, a solution for these employees might be found.

Unions lose out when legally established and long-proven industrial relations procedures are infringed. In respect of the current minority UPE abuse, if infringements are condoned, the power of professional and competent majority unions to negotiate with authority gets diluted. Employers too will end up facing a confusing environment with no exclusive and legitimately mandated interlocutors with whom to discuss and solve work problems.   

Arthur Muscat is a human resources and industrial relations specialist.