Constitutional - Freedom Of Association

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Art 40.6.1.iii

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-The State guarantees liberty for the exercise of the following rights, subject to public order and morality:
-(iii) the right of the citizens to form associations and unions. Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.

Wording of the Article appears to envisage a wide State regulatory role in respect of the right of association

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NUR v Sullivan (1947)

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-HELD: Part III of the Trade Union Act 1941 granted a statutory monopoly to a particular union, this was a deprivation of right to associate.

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Freedom to dissociate

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If one has a freedom to associate, then logically one has a freedom to disassociate.

Further, a union cannot be coerced into accepting a member?

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Educational Company v Fitzpatrick & Ors [1961]

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-FACTS: plaintiff company was being forced to make members join trade union

-HELD: ‘…right to form associations is only intelligible where there is an implicit right to abstain from joining such associations or unions’…….

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Meskell v CIE [1973]

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FACTS: CIE agreed to terminate contracts of employees and then immediately re-employ them, if they agreed to be a member of one of four trade unions
-HELD: Plaintiff could not be forced to join a trade union.

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Tierney v Amalgamated Society of Woodworkers (1959)

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FACTS: plaintiff sought declaration that qualified for membership of defendant union & order directing defendant to accept him
HELD: members, and members alone, should decide on their fellow members

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Murphy v Stewart [1973]

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FACTS: defendant Union would not accept Plaintiff’s transfer from another Union

HELD: Defendants did not in any way infringe Plaintiff’s rights

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ASLEF v UK (2007)

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FACTS: The Associated Society of Locomotive Engineers and Firemen (ASLEF) is an independent trade union representing mainly train drivers employed on the UK railways. In 2002, ASLEF voted unanimously to expel a member, on the grounds that his membership of the British National Party was incompatible with membership of ASLEF, that he was likely to bring the union into disrepute and that he was against the objects of the union.

HELD: Employment Appeals Tribunal in UK: Union was prohibited from excluding or expelling persons wholly or to any extent on the ground that the individual is or was a member of a political party. ASLEF was therefore forced to re-admit the member.

HELD ECtHR: just as a worker should be free to join or not join a union, so is a trade union equally free to choose its members. Article 11 could not be interpreted as imposing obligations on associations to admit anyone who applied to join.

Further, where associations are set up by people who share common values, ideals and goals, it would run counter to the very effectiveness of the freedom at stake if they had no control over their membership. ASLEF had a right to choose its members.

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Demir & Baykara v Turkey (2009)

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FACTS: applicants were a member and the president of the Turkish trade union for civil servants. The union signed a two year collective agreement in 1993, but the employer, a Municipal Council, did not comply with its provisions. Applicants sued on foot of the agreement.

-HELD: Court of Cassation held that there was a right to join a union, but the union itself had "no authority to enter into collective agreements as the law stood".

HELD ECtHR: There is an inherent right to collective bargaining protected by Article 11 ECHR, within the right to freedom of association. Only interference that is strictly necessary in a democratic society can be justified.

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Equality Authority v Portmarnock Golf Club (2009)

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-FACTS: Equality Authority brought proceedings in District Court re intoxicating liquor licence of Portmarnock. Licence suspended as ‘discriminatory club’ under S.8 Equal Status Act 2000 (ie. rule / policy to discriminate in re membership). Portmarnock argued fell under S.9 exception: where principal purpose of club is to cater for needs of the group in membership to the exclusion of the other grouping.
-High Court: not discriminatory
-Supreme Court: no prohibition on establishment of clubs / associations where membership limited to persons of a particular gender.

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Rogers v Irish Transport & General Workers Union (1978)

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HELD: right to join Union extends to taking part in democratic process and decision making process. But, may be restricted by rules of the particular union

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Doyle v Croke (1988)

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Plaintiffs had right by virtue of Art 40.6.1.iii to fair procedures

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Duties on Employers?

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Employers do not have to negotiate with unions or offer them formal recognitions

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Dublin Colleges ASA v City of Dublin VEC (1981)

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FACTS: teachers formed union and sought orders directing the defendant to negotiate with them
-HELD: No obligation on Defendants to recognise the association

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Abbott & Whelan v ITGWU (1982)

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HELD: No duty on employer to negotiate with any particular citizen or body of citizens

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Loftus v AG (1979)

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FACTS: Act allowed candidate’s party affiliations to be displayed on a ballot paper only where the party was registered. Did it rob candidates of freedom to associate with bona fide parties who didn’t meet the criteria?

HELD: No. Provision was in the public interest as ensured bogus parties could not ruin genuine political action

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Norris v Attorney General (1984)

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Law criminalising homosexual activities did not violate plaintiff’s right to associate.

O'Higgins CJ:

"Freedom of expression and freedom of association are not guaranteed as absolute rights. They are protected by the Constitution subject to public order and morality. Accordingly, if the impugned legislation is otherwise valid and consistent with the Constitution, the mere fact that it prohibits the plaintiff from advocating conduct which it prohibits or from encouraging others to engage in such conduct or associating with others for the purpose of so doing, cannot constitute a breach of the Constitution."

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ECHR - Article 11

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Freedom of assembly and association

1. 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.

2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others.

This article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

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Evaldsson -v- Sweden (2007)

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The applicants were employed by the construction company LK Mässinteriör AB from 3 March to 30 July 1999. The company was bound by a collective labour agreement, concluded between the Swedish Building Workers' Union and Swedish Construction Industries.

Under the collective agreement, as it stood at the relevant time, the local union branch had the right to monitor salary payments and to be reimbursed for the costs involved on the basis of a fee of 1.5 per cent of the worker's salary. The employer was obliged to deduct that amount from the worker's salary and to supply the local branch with the information it needed for monitoring work. Only workers belonging to another union were exempt from those deductions.

The applicants having asked to be exempted from the deductions, the company complied and stopped paying the fees to the union or providing the agreed information concerning the applicants. The union insisted on payment and initiated formal local negotiations. However, no solution was reached. The applicants maintained that they were forced to contribute to the financing of a union's general activities against their will and in a manner comparable to a union member, which was tantamount to forced membership of the union. They relied on Article 9 (freedom of thought and conscience), Article 10 (freedom of expression), Article 11 (freedom of association) and Article 1 of Protocol No. 1. They also alleged that they had suffered discrimination compared both to the union members and members of other trade unions in breach of Article 14 (prohibition of discrimination).

Article 1 of Protocol No. 1
The Court noted that approximately 30 Euros were indeed deducted from the applicants' wages to cover the union's monitoring fee but that that deduction could be considered to pursue a legitimate aim "in the public interest" as the inspection work aimed to protect the interests of construction workers generally. Furthermore, the Court accepted that, in 1999, 250 workers who were not members of a union had had their wages adjusted as a result of the union's monitoring activities thus showing that the applicants did receive a certain service in return for the fee paid.

However, the Court observed that those fees should be for inspection activities only and not used to contribute to the union's branch activities and should also be accounted for separately. Taking into consideration financial information provided with regard to the union's activities, the Court noted that, whereas less than one-fourth of the union's officials appeared to have been involved in inspection work, the statement of accounts for the years 1997-2000 attributed more than 90% of pension payments and almost half of the costs for wages, remunerations and other expenses to the same work.

The Court further noted that it could not draw any reliable conclusion from the information available as to whether profits had been made from the union's monitoring activities or the inspection work carried out by the union branches as a whole. Nor could it be ascertained whether a possible surplus generated by the inspection work had been used to cover part of the costs relating to the union's branch activities such as wage negotiations, union agitation and political work.

The Court found that the applicants had not been given sufficient information for them to verify how the fees they paid were actually used, information to which they were all the more entitled given that those fees were paid against their will and to an organisation with a political agenda they did not support.

Moreover, given that the Swedish authorities' organised its labour market by delegating the regulation and legislation of important labour issues to independent organisations through a system of collective agreements, the Court found that the State was under the obligation to protect the applicants' interests by holding those organisations accountable for their activities.

In conclusion, the Court considered that the union's wage monitoring activities lacked transparency and, even having regard to the limited amounts of money involved, it was not proportionate in the applicants' case to make deductions to their wages without giving them a proper opportunity to check how that money was spent. It accordingly held that there had been a breach of Article 1 of Protocol No. 1.

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Refah Partisi -v- Turkey (2003)

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The first applicant, Refah Partisi (the Welfare Party - "Refah") was a political party founded on 19 July 1983. The second applicant is its former Chairman, Necmettin Erbakan, a Member of Parliament at the material time. The third and fourth applicants, Sevket Kazan and Ahmet Tekdal, are politicians and lawyers and were Members of Parliament and Refah Vice-Chairmen at the time. On 21 May 1997 Principal State Counsel at the Court of Cassation brought proceedings in the Turkish Constitutional Court to dissolve Refah, which he accused of having become "a centre of activities against the principle of secularism". In support of his application, he relied on various acts and declarations by leaders and members of Refah which he said indicated that some of the party's objectives, such as the introduction of sharia and a theocratic regime, were incompatible with the requirements of a democratic society. Before the Constitutional Court the applicants' representatives argued that the prosecution had relied on mere extracts from the speeches concerned, distorting their meaning and taking them out of context. They also maintained that Refah, which at the time had been in power for a year as part of a coalition government, had consistently observed the principle of secularism and respected all religious beliefs and consequently was not to be confused with political parties that sought the establishment of a totalitarian regime. They added that Refah's leaders had only become aware of certain of the offending remarks in the case after Principal State Counsel's application for the dissolution of the party was served on them and that they had nonetheless expelled those responsible from the party to prevent Refah being seen as a "centre" of illegal activities for the purposes of the Law on the regulation of political parties. In its judgment of 16 January 1998 the Constitutional Court dissolved Refah on the ground that it had become a "centre of activities against the principle of secularism". It also declared that Refah's assets were to be transferred to the Treasury. The Constitutional Court further held that the public declarations of Refah's leaders, and in particular Necmettin Erbakan, Sevket Kazan and Ahmet Tekdal, had directly engaged Refah's responsibility as regards the constitutionality of its activities. Consequently, it banned them from sitting in Parliament or holding certain political posts for five years.

The applicants complained, under Articles 9, 10, 11, 14, 17 and 18 of the Convention and Articles 1 and 3 of Protocol No. 1.

Article 11
The parties had accepted that Refah's dissolution and the measures which accompanied it amounted to an interference with the applicants' exercise of their right to freedom of association under Article 11 of the Convention. The Court further considered that, in accordance with the requirements of paragraph 2 of Article 11, the interference had been prescribed by law and had pursued a legitimate aim. Under the terms of that paragraph, it remained to determine whether the interference had been "necessary in a democratic society".

Citing its case-law, the Court reaffirmed the close relationship between democracy and the Convention and also the primordial role played in a democratic regime by political parties enjoying the freedoms and rights enshrined in Article 11 and also in Article 10 (freedom of expression) of the Convention.
However, the freedoms guaranteed by Article 11, and by Articles 9 (freedom of religion) and 10 of the Convention, could not deprive the authorities of a State in which an association, through its activities, jeopardised that State's institutions, of the right to protect those institutions. The Court had previously held that some compromise between the requirements of defending democratic society and individual rights was inherent in the Convention system.

The Court considered that a political party might campaign for a change in the law or the legal and constitutional structures of the State on two conditions: firstly, the means used to that end must be legal and democratic in every respect; secondly, the change proposed must itself be compatible with fundamental democratic principles. It necessarily followed that a political party whose leaders incited violence or put forward a political programme which failed to respect one or more of the rules of democracy or which was aimed at the destruction of democracy and the flouting of the rights and freedoms recognised in a democracy could not lay claim to the Convention's protection against penalties imposed on those grounds.

The Court reiterated, nevertheless, that the exceptions set out in Article 11 were, where political parties were concerned, to be construed strictly; only convincing and compelling reasons could justify restrictions on such parties' freedom of association. In determining whether a necessity within the meaning of Article 11 § 2 existed, the Contracting States had only a limited margin of appreciation. Provided that it satisfied the two conditions set out above, a political party animated by the moral values imposed by a religion could not be regarded as intrinsically inimical to the fundamental principles of democracy, as set forth in the Convention.

The Court further considered that the constitution and programme of a political party could not be taken into account as the sole criterion for determining its objectives and intentions. The political experience of the Contracting States had shown that in the past political parties with aims contrary to the fundamental principles of democracy had not revealed such aims in their official publications until after taking power. That was why the Court had always pointed out that a party's political programme might conceal objectives and intentions different from the ones it proclaims. To verify that it did not, the content of the programme had to be compared with the actions of the party's leaders and the positions they defended.

In making an overall assessment of the necessity of the interference and in particular whether it corresponded to a pressing social need, the Court found that the acts and speeches of Refah's members and leaders cited by the Constitutional Court were imputable to the whole of the party, that those acts and speeches revealed Refah's long-term policy of setting up a regime based on sharia within the framework of a plurality of legal systems and that Refah did not exclude recourse to force in order to implement its policy and keep the system it envisaged in place. Considering that these plans were incompatible with the concept of a "democratic society" and that the real opportunities Refah had to put them into practice made the danger to democracy more tangible and more immediate, the penalty imposed on the applicants by the Constitutional Court, even in the context of the restricted margin of appreciation left to it, might reasonably be considered to have met a "pressing social need". The Court further concluded that the interference could not be regarded as disproportionate in relation to the aims pursued.

There were thus convincing and compelling reasons justifying Refah's dissolution and the temporary forfeiture of certain political rights imposed on the other applicants. It followed that Refah's dissolution might be regarded as "necessary in a democratic society" within the meaning of Article 11 § 2 and there had accordingly been no violation of Article 11.

Articles 9, 10, 14, 17, 18, and Articles 1 and 3 of Protocol No. 1
The Court did not consider it necessary to carry out a separate examination of the applicants' other complaints.