The differentiations in the wage packets of workers suggest that collective bargaining, which ultimately leads to a collective agreement, is very effective in the adjustment of wages that can ensure the dual objective of maintaining the relativity of wages while at the same time reducing or eliminating precarious work.

On the strength of this argument an all-unionised workforce is the ideal scenario for a wage policy that would adequately address the issue of precarious employment and in the process bring about a higher degree of equity in wage policy.

This would be complemented by a State apparatus that oversees the macro consequences of collective bargaining in order to restrain the potential spiral trend of negotiated wage increase.

In such a scenario, the union would be bound to act in a socially responsible way by taking into account the external (third party) effect of negotiated wage. In taking such a stance the trade union would try to mitigate the impact on the prices of goods and services provided by the company, which results from the wage increases agreed by employers and union.

Perhaps, it was the rationale of such an utopian vision of an industrial relations system that spurred the Prime Minister to suggest that employees and employers should be legally obliged to be registered members of the organisation or institution which has been legally set up to look after their vested interests. What this implies is that an employee would be legally bound to join a trade union while an employer would be obliged to register as a member of an employers’ association.  

The implementation of compulsory trade union membership would be a boost to the trade unions. It would naturally increase their membership and at the same time widen their constituency by the recruitment of members from areas or sectors which, either because of the nature of their work or the inter-relationship at the place of work, has traditionally been overwhelmingly non-unionised.

A sizeable number of these non-unionised workers, employed in sectors comprising catering and construction industries, have to contend with low wages as their bargaining power tends to be rather weak. One way to alleviate this lack of bargaining power is to give them a voice, through trade union membership, to influence their working conditions and increase their pay.

On the other hand, compulsory trade union membership is also seen by the trade union as a solution to the problem of the free riders who being non-members enjoy the benefits earned through a union’s struggle without contributing to the relevant burdens.

The right to associate is an individual right, like all other human rights. But it is a right that can only be exercised collectively, in association with others

The three main employers’ associations, namely the Malta Employers Association, the Malta Chamber of Commerce, Enterprise and Industry and the Malta Hotel and Restaurants Association, were very vocal in their criticism of such a measure.

The MEA director general, Joseph Farrugia, compared this policy of mandatory membership as a force-feed exercise. Compelling persons to join an association which is deemed to be incompatible with their beliefs is like forcing them to consume food they are refusing to eat. 

However, apt the metaphor may be it does not explain the legal aspect of force-feeding patients at hospital or homes.

Would it be legal and ethical to let such patients starve to death rather than adopting this forced-feed policy?

So far in their reaction the employers have not, as I suspected they would, questioned the legality of the mandatory nature of membership. Human rights treaties generally protect interest group associations such as trade unions.

Associations are usually formed by individuals who, by and large, share the same ideas or beliefs and who come together in order to promote them.

People should be free to choose to join an association or not. Compelling an individual to relate with others with whom he/she disagrees, in order to achieve a collective purpose – however, valuable and highly principled that purpose may appear to be – is considered unacceptable at first glance.

Indeed, compulsion to join an organisation sounds as being an anathema to human rights law.

However, cogent and sound this line of argument appears to be there are still some nuances which raise some questions.

Should the right to dissociate carry more weight when it conflicts with the right to associate? The right to associate is an individual right, like all other human rights. But it is a right that can only be exercised collectively, in association with others. On the basis of this argument, when the two aspects of this right collide, which one should prevail?

These questions and the dilemmas they raise should be seriously addressed in the ongoing debate about this issue.

Unfortunately, there may not be any case law to act as a guide to our legislators.

Case law about the closed shop practices, in vogue in UK and US, which upon an agreement between union and employer stipulated that all employees should be trade union members, may provide some useful guidelines to the contestations about individual rights and how these impinge on the collective interest of employees at their place of work.

Saviour Rizzo is a former director of the Centre for Labour Studies at the University of Malta.

This is a Times of Malta print opinion piece

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