Mandatory Trade Union Membership in Malta: a Short-Lived Proposal

Authors: Pamela Dingli & Clyde Bonnici

The proposal to introduce mandatory trade union membership was included in the Government’s Electoral Manifesto for the 2022 General Election. Measure 193 reads (as translated into English) as follows:

“Trade unions are the voice of workers and wherever there are workers who are members of a union there is less risk of exploitation. We agree with the principle of mandatory membership in a trade union as proposed by the main unions of our country. We will begin discussions with the social partners on the implementation of this measure.”

Indeed, the authorities pledged to start discussions with social partners for the implementation of this measure. Malta’s main trade unions were in favour of this electoral promise, while employers’ representatives pronounced themselves firmly against the implementation of this idea.

After an almost three-year span of discussions within diverse fora at various levels, last July, the Government announced that pursuing mandatory union membership is not “legally advisable“.

With this proposal being set aside on the basis of legal advice, this article seeks to explore the proposal itself and what possibly could have led the authorities to discard it.

What is a Trade Union?

At law, specifically article 2 of the Employment and Industrial Relations Act (“EIRA”), a “trade union” is defined as an organisation consisting wholly or mainly of workers and of which the principal purpose is by its rules the regulation of relations between workers and employers or employers’ associations.

In terms of EIRA, only a recognized trade union in terms of law is able to enter into negotiations with the employer with the aim of entering into a collective agreement. Trade Union recognition is addressed in the Recognition of Trade Union Regulations (S.L.452.112).

Besides being relevant when it comes to collective agreements, trade unions, whether recognized or otherwise, represent employees in grievances and before authorities. They sometimes act as representatives of employees before the Industrial Tribunal itself. It is indeed acknowledged by all, including social partners, that trade unions do play an important role in social dialogue and in the labour market.

What is a Collective Agreement?

Collective Agreements in Malta are enterprise-based, as opposed to sectoral/universal agreements. They are entered into between the union recognized to represent the employees and the employer at that particular place of work “regarding conditions of employment in accordance with the provisions of any law in force in Malta” (article 2 EIRA). Unless expressly permitted by law to regulate terms and conditions differently, collective agreements can only grant more favourable conditions than the mandatory legal provisions.

Elements justifying mandatory membership

The proposal of having in place a mandatory trade union membership is not devoid of justifications.

First, there is indeed a lack of worker representation/low levels of unionisation in certain sectors such as construction, hospitality and tourism.

Secondly, although this is far from reality, there is a perception that trade unions have lost their relevance. Trade union membership is declining worldwide, for various reasons, such as the fact that in the EU, there are many directives which indirectly limit the scope of collective bargaining, as many entitlements would already have been enshrined in these directives.

One point which must not be overlooked is the fact that although the set of employment laws which are in place in Malta is increasing – whether as a matter of national policy or as mandated by the EU, the enforcement element is not at the level which we wish it to be. As we all acknowledge, the force of the law lies with its enforcement. Thus, the proposal to have in place mandatory trade union membership can be seen as an effort to combat precarious employment and exploitation of workers in certain sectors.

Lastly, one should factor in the growing individualistic culture whereby employees would rather negotiate their own terms than bargain collectively.

Position of Social Partners

The Trade Unions’ position on obligatory trade union membership revolves around the idea that this is a means to combat precarious employment, abuse and exploitation, particularly in sectors lacking protection. The proposal would, in their opinion, improve the situation of low-income employees. Unions also are of the opinion that the measure is necessary since in this day and age, there are still cases where employers hinder employees from becoming trade union members. Moreover, the Maltese Unions have considered the proposal as addressing their concern of ‘free riders’ who benefit from collective bargaining without contributing towards trade unions. Lastly, the unions’ perception is that mandatory membership does not impinge on the rights of employees for free choice, as employees would have the right to choose their preferred union or even set up a house union. A house union is a union formed solely by employees at a particular place of work.

As stated, employers’ representatives have not changed their position on mandatory trade union membership. They were contrary to this measure from the start. In their view, any sort of association, whether it is in a trade union or an employer organisation, should be freely entered into and never imposed. Social partners should seek to attract membership themselves, as opposed to having membership be mandatory. In a nutshell, the proposal is regarded by employers’ representatives as diminishing the importance of the trade union movement.

Legal point of view

Mandatory Trade Union Membership can be considered as unconstitutional.

Article 42 of the Constitution of Malta reads “Except with his own consent … no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, … in particular to form or belong to trade or other unions or associations for the protection of his interests”.  

This provision is interpreted to mean that every person has a right to form or belong to a trade union or to an association, subject to legal exceptions which are reasonably required as laid down in the law itself such as “in the interests of defence, public safety, public order,  public  morality  or  decency,  or  public health … or for  the  purpose  of  protecting  the  rights  or freedoms of other persons .. or that imposes restrictions upon public officers”. Thus, the intention behind article 42 is to grant a right to associate, and not to impose such right of any person. It is likewise true that the right to associate is always complemented by a right to disassociate/withdraw. Indeed, as much as there is a right to apply to join a union, there is a right to resign and disassociate.

Besides considering Malta’s supreme law, on a wider spectrum, mandatory membership may be considered as going against the International Labour Organisation’s Freedom of Association and Protection of the Right to Organize Convention 1948 (No. 87). Article 2 thereof states that “Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation”. Once again, this provision unequivocally emphasizes that joining an organization without authorization is a right, and not an obligation. Imposing any such obligation would in essence be an encroachment of the substance of that same right.

The European Convention on Human Rights, in article 11 thereof states that “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.”  

In a more direct manner, the United Nations Declaration of Human Rights, in article 20 thereof, expressly states that “1. Everyone has the right to freedom of peaceful assembly and association.  2. No one may be compelled to belong to an association.”

Conclusion

Although we can now readily say that the idea of mandatory trade union membership will not be implemented, the discussions which have taken place, whether formally and informally, were not totally in vain.

Indeed, the discussions have once again put on the country’s agenda the work of trade unions and trade union relevance when it comes to the negotiation, implementation and enforcement of employment rights within the context of the current scenario where work is taking different forms. Moreover, there is now more awareness amongst the general public as to every person’s fundamental right to associate and to join forces in employment. The ways and possibilities in which this can be done are endless. Besides the authorities and the labour inspectorates, employees have more options when it comes to support in enforcement. For all of this and more, the discussion has indeed served as a positive step.