Closed shop

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A pre-entry closed shop (or simply closed shop) is a form of union security agreement under which the employer agrees to hire union members only, and employees must remain members of the union at all times to remain employed. This is different from a post-entry closed shop (US: union shop), which is an agreement requiring all employees to join the union if they are not already members. [1] In a union shop, the union must accept as a member any person hired by the employer. [2] By comparison, an open shop does not require union membership of potential and current employees.

Contents

International Labour Organization covenants do not address the legality of closed shop provisions, leaving the question up to each individual nation. [3] The legal status of closed shop agreements varies widely from country to country, ranging from bans on the agreement, to extensive regulation of the agreement to not mentioning it at all.

Council of Europe

The European Court of Human Rights held that Article 11 of the European Convention on Human Rights provides for a "negative right of association or, put in other words, a right not to be forced to join an association", in Sørensen and Rasmussen v. Denmark (2006).

United Kingdom

Dunn and Gennard found 111 UK cases of dismissals on the introduction of a closed shop, involving 325 individuals, [4] : 125  and they stated, "While proponents of the closed shop may argue that an estimated minimum 325 dismissals is a relatively small number compared with the total population covered by closed shops, critics would see the figure as substantial arguing that one dismissal is one too many". [4] : 126  In relation to the pre-entry closed shop, they stated, "Its raison d'être is to exclude people from jobs by denying them union membership". [4] : 132 

All forms of closed shops in the UK are illegal following the introduction of the Employment Act 1990. They were further curtailed under section 137(1)(a) of the Trade Union and Labour Relations (Consolidation) Act 1992 (c. 52) [5] passed by the Conservative government at the time. The Labour Party, then in opposition, had supported closed shops until December 1989, when it abandoned the policy in accordance with European legislation. [6] [7] Equity was one of the last trade unions in the United Kingdom to offer a pre-entry closed shop until the 1990 act. [8]

The famous English tort law case of Rookes v Barnard concerned a closed shop agreement. [9]

United States

The Taft–Hartley Act outlawed the closed shop in the United States in 1947. The union shop was ruled illegal by the Supreme Court. [10] States with right-to-work laws go further by not allowing employers to require employees to pay a form of union dues, called an agency fee. An employer may not lawfully agree with a union to hire only union members, but it may agree to require employees to join the union or pay the equivalent of union dues to it within a set period after starting employment. Similarly, a union could require an employer that had agreed to a closed shop contract prior to 1947 to fire an employee who had been expelled from the union for any reason, but it cannot demand an employer to fire an employee under a union shop contract for any reason other than failure to pay dues that are required by all employees.

The US government does not permit union shops in any federal agency, regardless of state laws.

Construction unions and unions in other industries with similar employment patterns have coped with the prohibition of closed shops by using exclusive hiring halls as a means of controlling the supply of labor. Such exclusive hiring halls do not strictly and formally require union membership as a condition of employment, but they do so in practical terms since an employee seeking to be dispatched to work through the union's hiring hall must pay union dues or a roughly-equivalent hiring hall fee. If the hiring hall is run on a non-discriminatory basis and adheres to clearly-stated eligibility and dispatch standards, it is lawful.

The Taft–Hartley Act also prohibits unions from requiring unreasonably-high initiation fees as a condition of membership to prevent unions from using initiation fees as a device to keep non-union employees out of a particular industry. Also, the National Labor Relations Act permits construction employers to enter pre-hire agreements in which they agree to draw their workforces from a pool of employees dispatched by the union. The NLRA prohibits pre-hire agreements outside the construction industry. [11]

For the entertainment industry, unions representing performers have as their most important rule banning any represented performer from working on any non-union production. Penalties are imposed on the union member, not the employer, and can lead to loss of union membership. Most major productions are union productions, and non-members join SAG-AFTRA, the country's main union of actors and performing artists, by performing as extras and earning three union vouchers or by being given a speaking line and entering that way. The other performance unions do not have minimum membership standards, but those who join them are prohibited from working on non-union productions.

Canada

The status of closed shops varies from province to province within Canada. The Supreme Court has ruled that Section Two of the Charter of Rights and Freedoms guaranteed both the freedom to associate and the freedom not to associate, but employees in a work-environment largely dominated by a union were beneficiaries of union policies and so should pay union fees, regardless of membership status. However, religious and conscientious objectors were allowed the option of paying the amount to a registered charity instead.

Australia

All forms of closed shops in the Commonwealth are illegal under federal workplace laws. Discriminating against an employee, or prospective employee, due to their status as a union, or non-union, member is considered an "adverse action" [12] and is hence illegal under S.342 of the Fair Work Act 2009 . [13]

See also

Further reading

Related Research Articles

A trade union or labor union, often simply referred to as a union, is an organisation of workers intent on "maintaining or improving the conditions of their employment", such as attaining better wages and benefits, improving working conditions, improving safety standards, establishing complaint procedures, developing rules governing status of employees and protecting and increasing the bargaining power of workers.

Labour laws are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, employer, and union.

Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. A collective agreement reached by these negotiations functions as a labour contract between an employer and one or more unions, and typically establishes terms regarding wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs. Such agreements can also include 'productivity bargaining' in which workers agree to changes to working practices in return for higher pay or greater job security.

In the context of labor law in the United States, the term "right-to-work laws" refers to state laws that prohibit union security agreements between employers and labor unions which require employees who are not union members to contribute to the costs of union representation. Unlike the right to work definition as a human right in international law, U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee's right to refrain from paying or being a member of a labor union.

In labor law, a union shop, also known as a post-entry closed shop, is a form of a union security clause. Under this, the employer agrees to either only hire labor union members or to require that any new employees who are not already union members become members within a certain amount of time. Use of the union shop varies widely from nation to nation, depending on the level of protection given trade unions in general.

A union security agreement is a contractual agreement, usually part of a union collective bargaining agreement, in which an employer and a trade or labor union agree on the extent to which the union may compel employees to join the union, and/or whether the employer will collect dues, fees, and assessments on behalf of the union.

An open shop is a place of employment at which one is not required to join or financially support a union as a condition of hiring or continued employment.

The duty of fair representation is incumbent upon Canadian and U.S. labor unions that are the exclusive bargaining representative of workers in a particular group. It is the obligation to represent all employees fairly, in good faith, and without discrimination.

In Canadian labour law, the Rand formula is a workplace compromise arising from jurisprudence struck between organized labour and employers that guarantees employers industrial stability by requiring all workers affected by a collective agreement to pay dues to the union by mandatory deduction in exchange for the union agreement to "work now, grieve later."

An agency shop is a form of union security agreement where the employer may hire union or non-union workers, and employees need not join the union in order to remain employed. However, the non-union worker must pay a fee to cover collective bargaining costs. The fee paid by non-union members under the agency shop is known as the "agency fee".

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Union busting is a range of activities undertaken to disrupt or prevent the formation of trade unions or their attempts to grow their membership in a workplace.

Financial Core refers to a legal carve-out that permits workers opposed to participating in a labor union to be employed under the benefits of a union's contracts without compelling them to be a member of that union.

Union dues are a regular payment of money made by members of unions. Dues are the cost of membership; they are used to fund the various activities which the union engages in. Nearly all unions require their members to pay dues.

Trade unions in South Africa has a history dating back to the 1880s. From the beginning unions could be viewed as a reflection of the racial disunity of the country, with the earliest unions being predominantly for white workers. Through the turbulent years of 1948–1991 trade unions played an important part in developing political and economic resistance, and eventually were one of the driving forces in realising the transition to an inclusive democratic government.

Japanese labour law is the system of labour law operating in Japan.

<span class="mw-page-title-main">Employment Relations Act 2000</span> Statute of the Parliament of New Zealand

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Davenport v. Washington Education Association, 551 U.S. 177 (2007), is a ruling by the Supreme Court of the United States in which the Court held that it does not violate the First Amendment for a state to require its public-sector unions to receive affirmative authorization from a non-member before spending that nonmember's agency fees for election-related purposes.

Communications Workers of America v. Beck, 487 U.S. 735 (1988), is a decision by the United States Supreme Court which held that, in a union security agreement, unions are authorized by statute to collect from non-members only those fees and dues necessary to perform its duties as a collective bargaining representative. The rights identified by the Court in Communications Workers of America v. Beck have since come to be known as "Beck rights," and defining what Beck rights are and how a union must fulfill its duties regarding them is an active area of modern United States labor law.

Abood v. Detroit Board of Education, 431 U.S. 209 (1977), was a US labor law case where the United States Supreme Court upheld the maintaining of a union shop in a public workplace. Public school teachers in Detroit had sought to overturn the requirement that they pay fees equivalent to union dues on the grounds that they opposed public sector collective bargaining and objected to the political activities of the union. In a unanimous decision, the Court affirmed that the union shop, legal in the private sector, is also legal in the public sector. They found that non-members may be assessed agency fees to recover the costs of "collective bargaining, contract administration, and grievance adjustment purposes" while insisting that objectors to union membership or policy may not have their dues used for other ideological or political purposes.

South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.

References

  1. ↑ "Closed-Shop Clause/Union Membership Agreement". Archived from the original on 2013-08-15. Retrieved 2013-08-15.
  2. ↑ Pynes, Joan. Human Resources Management for Public and Nonprofit Organizations. 2d ed. Hoboken, N.J.: John Wiley and Sons, 2004. ISBN   0-7879-7078-6
  3. ↑ "Case(s) No(s). 188, Report No. 34 (Denmark): Complaints against the Government of Denmark presented by Swiss Printing Workers' Union and the Swiss Federation of National Christian Trade Unions." Archived 2011-06-04 at the Wayback Machine Document No. 031960034188. Cases of the Committee on Freedom of Association. International Labor Organization. March 4, 1959.
  4. 1 2 3 Dunn, Stephen; Gennard, John (1984). The Closed Shop on British Industry. London and Basingstoke: Macmillan. ISBN   0-333-26203-4.
  5. ↑ "Trade Union and Labour Relations (Consolidation) Act 1992".
  6. ↑ "1989: Labour's union U-turn". BBC News. 18 December 1989.
  7. ↑ "Labour abandons the closed shop – archive, 1989". the Guardian. 18 December 1989.
  8. ↑ Landin, Conrad (24 May 2016). "Equity: Closed shop 'way forward for arts'". Morning Star. Bristol. p. 2. Archived from the original on 30 June 2016. Retrieved 28 May 2016.
  9. ↑ [1964] AC 1129.
  10. ↑ "Pattern Makers v. NLRB, 473 U.S. 95, 126 (1985)". U.S. Supreme Court. June 27, 1985. Retrieved 5 April 2017.
  11. ↑ 29 USCA 158.
  12. ↑ "What is adverse action? | Fair Work Commission".
  13. ↑ "Fair Work Act 2009".
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