In Proposal 193 of the Labour Party manifesto there is a promise to introduce mandatory trade union membership and a pledge to start discussions with the social partners for the implementation of this measure.
How this will be enforced is not spelt out: there have been instances in the past, in Malta and abroad, of the so-called ‘closed shop’ where only unionised employees can be employed or receive particular benefits.
The constitution of Malta guarantees freedom of association and, in particular, the right to join a trade union “for the protection of one’s interest”. However, does this right include also the freedom not to associate? Both the Maltese Constitutional Court and the European Court of Human Rights have emphatically stated that everyone has the right not to associate, even though this right is not expressly stated in the constitution or the convention.
In the early 1990s, I was counsel to a number of dockyard employees who had refused to join the General Workers’ Union. They were, consequently, not allowed to work overtime, an important source of income for dockyard workers at that time. The Constitutional Court in 1995 ruled that freedom of association included the freedom not to associate in a trade union.
Limiting the granting of overtime to members of a dominant trade union in a state corporation was in violation of the constitution, apart from amounting to an unjustifiable discriminatory treatment. What is even more interesting is that the court rejected the argument of the state corporation that such action was justified, owing to pressure from a union and its members which could lead to substantial disruption.
The court made it clear that no infringement of fundamental human rights can be tolerated for such reason. “What distinguishes a state ruled by law from any other form of state is precisely the supremacy of the law over all other considerations of a commercial, economic or political nature,” the court said.
Imposing compulsory membership of a trade union smacks of totalitarianism, or corporativism in a bygone era, namely, a state organised into corporations representing employers and employees in various trades or professions.
In its judgments against forced association in a trade union, the Maltese Constitutional Court was influenced by the Young, James and Webster case decided by the European Court of Human Rights in 1981. In that case, three British labourers asked the European Court of Human Rights to consider the issues of freedom of association and the right to an effective remedy.
Trade union membership should be encouraged not imposed, incentivised not forced- Tonio Borg
Young, James, and Webster objected to union membership on personal and political grounds. British law on unfair dismissal, however, allowed an employee to refuse union membership only on the basis of religious beliefs. Therefore, the three were dismissed from their jobs with British Railways for refusing to join a union. Because British law sanctioned their dismissals, they sought relief from the European Court of Human Rights.
The Strasbourg Court ruled in that seminal case against the closed shop and that such compulsion was not a statutory permissible derogation since it was not necessary or justifiable in a democratic society.
This was also confirmed in another case, namely, Sigurjoinsson in 1993, where an Icelandic taxi driver risked losing his taxi licence if he did not join a trade union. Besides, in the Sorensen case in 2006, the court observed that “there is little support in the contracting states for the maintenance of closed-shop agreements and that the European instruments… clearly indicate that their use in the labour market is not an indispensable tool for the effective enjoyment of trade union freedoms”.
Trade unions are important institutions in a democracy. They have been instrumental in the achievement of the rights of several categories of employees, which is why the right to associate in a trade union is, unlike association in other organisations, specifically guaranteed.
However, going to the other extreme and imposing membership of a trade union smacks of totalitarianism. For such compulsory membership to be effective, sanctions, even if of a non-criminal nature, would have to be imposed, such as denial of benefits at the place of work, or, God forbid, dismissal or non-employment.
In fact, the proposal in favour of compulsory membership, purportedly to avoid precarious employment, was made by the General Workers’ Union way back in 2018. At that time, the proposal had been shot down by the Malta Employers’ Association, the Malta Chamber of Commerce, Enterprise and Industry, and the Malta Hotels and Restaurants Association, which stressed that the decision to join a union or organisation should be left entirely up to the individual employee or company. Now the proposal has been revived and found its way into the electoral manifesto of the party in government.
Coercion in anything should only be a measure of last resort and when it is absolutely necessary. Such a proposal is not based on any studies or any indication of absolute necessity. Through an education campaign and spread of intelligent information, trade union membership should be encouraged not imposed, incentivised not forced.