A legal notice revising the way in which a trade union wins recognition at the workplace is being hailed by both employers and unions as one which could prevent unnecessary disputes and strikes.
However, the issue of fragmentation – when specific categories of workers have their own union – has been overlooked.
There have been numerous cases where recognition disputes escalated, from that between the General Workers’ Union and the UĦM in 1999 over Malta International Airport, to the GWU’s and the Malta Union of Bank Employees’s more recent tussle over Bank of Valletta.
Legal notice 413 prevents a number of problems by providing clearer definitions and also lays down remedies for when a challenge is made.
Josef Bugeja, the secretary general of the GWU, said that “clearly defined parameters” were the way to avoid disputes, “for the trade union itself, between trade unions, and between the trade union and the employer”.
The new legal notice starts off by defining what a member is, often a problem because in the private sector, union membership fees are often deducted each month from a workers’ pay but only passed on to the respective union each quarter.
“In the law, it now states that you can be up to three months in arrears and still be considered a ‘paid-up member’ so this has been solved,” Mr Bugeja explained.
Employers were not obliged to recognise a trade union – even after it proved that it represented an absolute majority of the employees
Josef Vella, director general of the UĦM, however, does not think that the three-month arrear clause will cover all the bases, as in some cases, the employer only passes on the membership fee deducted from its employees’ pay once every year.
“So if the employer does not pass it on, does that mean the employee is not a member? The employee knows that the fee has been deducted as it shows on his payslip. That should be the criterion and not when the union gets the money. We actually have a person at the union who does nothing but chase employers for the fees!” he said.
The next sticking point had been that employers were not obliged to recognise a trade union – even after it proved that it represented an absolute majority of the employees – 50 per cent plus one, or 50+1 in common parlance.
“The law only stated ‘may grant recognition’ but there was nothing in the law at all which obliged the employer to grant it! Yes, the union could take a stand and declare an industrial dispute but that is hardly the best way to start a relationship: through threats,” Mr Bugeja said.
The union making the claim for recognition presents its supporting documentation to the Director of Industrial and Employment Relations, who can then cross-check it against the information held by the employer (since a union would only have details of its own members and not of the other employees).
In the past, there were instances of a union asking for recognition on the off-chance that they had a majority.
However, the legal notice deters frivolous claims by laying down that a fresh claim cannot be presented until a year has passed.
What happens next depends on whether there is already a union representing workers or not – which is where most of the problems arise. For years, a secret ballot was put forward as the best solution and it has finally been put into the law, with only members of the contesting unions having a right to vote.
The ballot paper asks employees to choose one union – irrespective of whether they are members of just one or of both – and it will then be awarded to the union with the relative majority.
There is no quota, however, something which does not worry Mr Bugeja: “You only have a ballot once the challenging union proves that it has 50+1. So once it has satisfied that criterion, it does not matter how many actually turn out for the ballot.”
There are other provisions too. For example, to ensure that the situation does not drag on, the ballot has to be held within 28 working days.
And, to the relief of employers, recognition challenges cannot be made in the three months before a collective agreement is due to expire, or three months after.
“We have had cases where a union claims to employees that it could get a better deal for them than the one with sole recognition, which creates instability as that is the very time that you need mature dialogue,” the director general of the Malta Employers’ Association Joe Farrugia said.
The MEA had made its own proposals over three years ago, and although some of the details differ, it has won on the major points. For example, the MEA was adamant in 2013 that the minimum turnout should be 70 per cent. Now, the two-step approach – proving that a union holds 50+1 and only then having a ballot – means that the turnout is not as important.
Recognition challenges cannot be made in the three months before a collective agreement is due to expire, or three months after
The UĦM, however, is disappointed that the issue of fragmentation – unions representing very specific categories of workers – was not tackled in the legal notice.
“If you have, for example, a union for technicians claiming recognition for that section alone, what would happen? How would it claim recognition? We should not only look at disputes between the large unions but also the small sectoral or professional ones which would clearly never have 50+1,” Mr Vella explained.
“That should also be addressed. You either want to have the parameters set clearly in the law or still have decisions which would be left to the discretion of the director – which defeats the whole purpose of having a law…”
Mr Bugeja was still bitter over the GWU’s experience with the Malta Public Transport collective agreement, when he claims that the UĦM allegedly told employees that it would be able to negotiate a better shift duration – and persuaded enough employees to switch that it won recognition.
“We try to close a collective agreement within just three meetings and being able to negotiate in a stable environment is much more conducive to a satisfactory outcome,” Mr Bugeja said.
Mr Vella has a completely different point of view of what happened at Malta Public Transport, proving just how thorny and heated these recognition disputes become.
“There are around 1,300 employees at Malta Public Transport who had spent five years without a collective agreement and were not happy with the GWU. The UĦM spent two years fighting for recognition, and once we won it, we finalised the collective agreement in just three months – something that the GWU had failed to manage. When we took over, all that we found were five flimsy papers… Now, they have a 50-page booklet in their hands.”
State of the unions
The Registrar of Trade Unions will shortly be issuing its report on the membership of trade unions and employers’ associations, but it is not expected to show major changes in Malta’s high participation rate.
The last report issued by the Registrar of Trade Unions in November 2015 was for the period ending June 2015, showing 29 trade unions and 14 employers’ associations – unchanged from the previous year.
The report showed that the GWU remained the largest union by far, with 49,894 members declared, up 1,620 over the previous year.
The second largest remained the UĦM with 25,515, down 547 from the end of June 2014.
The NSO report for June 2015 shows that there were 175,531 gainfully occupied people, and with 94,014 trade union members – giving a participation rate of 54 per cent.
Levels of union density vary widely across the 28 EU states plus Norway, from around 70 per cent in Finland, Sweden and Denmark. The average level of union membership across the whole of the European Union, weighted by the numbers employed in the different member states, is 23 per cent to eight per cent in France, according to the European Trade Union Institute.
The three smallest states, Cyprus, Luxembourg and Malta, have levels well above the average.
Josef Bugeja, the general secretary of the General Workers’ Union, said a survey was carried out in November 2015 to see what people thought of trade unions in Malta.
He said the report indicates that females only sign up as trade union member as they believe it will protect them from discrimination.
“Collective agreements do not discriminate by age, gender, race or any other category. This is why Malta ranks so well on wage equality. Without collective agreements, there would not be that protection. Our belief remains equal pay for job of equal value.
“Without a trade union, wages and conditions depend on the relationship between a particular employee and their employer – whereas we brought conformity.
“In a capitalist society, the owner is duty-bound to make a profit. But you need to have a balance and that only comes from trade unions which take a collective point of view. We cannot stop globalisation but it should have a social conscience,” he said.
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