Union membership: a right or a duty?

It is necessary to delve deeper into why union membership should never be made compulsory at law, more so that the ultimate objectives for the unions’ insistence on such a proposal can be reasonably and legitimately achieved by other means.

Our courts, when dealing with labour rights from a human rights perspective, have had to address complex questions for reasons involving entitlements, either as social entitlements or as collective claims. A labour right that illustrates the issue, included in both civil and political and socio-economic rights documents, is freedom of association.

There must be an integrated approach to the interpretation of such a right, a method increasingly preferred by the European Court of Human Rights when examining work-related complaints.

I believe a reasonable solution can be found to the apparent tension between individual rights and collective interests of labour that is commonly articulated in both the case law and leading experts in the field.

The right to form and join trade unions, the freedom of organisation, has two social and legal functions.

It is a civil liberty, a human right and an aspect of freedom of association. Its existence and adequate guarantees for its exercise are, however, also indispensable conditions for the operation of collective labour relations.

One problem that often appears to obstruct the effective protection of freedom of association as a human right is the apparent tension between these two aspects of the right.

Not long ago, the main reason behind the call for mandatory union membership used to be to find a solution to the problem of ‘free-riding’, namely the enjoyment of benefits earned through union struggles by those who did not contribute to the relevant burdens.

Today, however, the reason or, rather, the excuse for such a call is to prevent any exploitation of non-unionised workers, especially those coming from third-world countries. Indeed, one of the four models proposed by junior minister Andy Ellul is that of obliging third-country nationals to be in a trade union.

Would such a model give rise to closed-shop agreements? These are agreements between one or more employers and one or more workers’ organisations, according to which an individual can only be employed or retain her job upon the condition of membership to a specific union. Of course, trade unions favour closed-shop arrangements, for they lead to increased union membership and can negotiate the terms and conditions of employment with the employer more effectively.

Yet such agreements provide an excellent illustration of the interplay between the individual and the collective aspects of the right to associate.

Is compelled union membership as a condition to get a job or remain employed compatible with human rights law? Workers should be free from such a compulsion, and this is an important principle in modern liberal societies dictating that trade unions should not have the ability to exercise power on the individual, similar to the coercive power of the state.

Compelling any worker to relate with others in a trade union with whom there is deep disagreement to achieve some other purpose, however valuable that purpose, is unacceptable.

That notwithstanding, there may be alternative means by which employees who choose not to belong to a union can benefit from union-negotiated settlements without being union members. They could, for example, be expected to contribute union dues or an equivalent amount without any obligation to obey opposed union directives.

Again, foremen, supervisors and certain levels of managers could compromise their supervisory or managerial obligations if they are forced to join a union. True, another model proposed by Andy Ellul is that mandatory union membership be only for low-wage earners. But what if another model proposed by Ellul, namely that of a system in which every employee is a union member, is ultimately the one preferred and voted for?

In such an eventuality, those supervisory and managerial positions can be allowed to share any terms accorded by union-negotiated settlements and may or may not be required to pay union dues.

From another perspective, how would mandatory union membership affect people in informal employment? This could pose a challenge when considering that collective bargaining is usually limited in law to workers considered to be “employees” or to those in formal employment. In this sense, therefore, it is crucial to consider national labour market characteristics before going along with any model of mandatory union membership.

The point remains that an individual does not enjoy the right to freedom of association if, in reality, the freedom of action or choice that remains available to him is either non-existent or so reduced as to be of no practical value.

When reading law, we were taught that when the negative and positive aspects of the right to associate are in conflict, the former should in principle prevail. The right to dissociate, being a right of the individual, should therefore carry more weight when it conflicts with the right to associate.

The government and unions must seriously reconsider their proposal.