Freedom of Association
The freedom of association concerns associations, unions and other bodies. Many of the early cases involved union membership or non-membership.
There is not necessarily a right to join a union of one’s choice. A person must be entitled by law and qualify to be a member under the rules and be accepted, in order to join.
In a famous case it was held that the right to associate includes a right to disassociate. The defendants were picketing the plaintiff company’s premises to force non-union members to join the unions.
The privileges allowed to unions to picket in furtherance of a trade dispute were not available to compel something that was a breach of a person’s Constitutional right not to join a union. The Irish courts have held the right to associate does not include the right to have an employer recognise the union.
It has been a policy of the state for over 80 years to rationalise the number of trade unions in order to avoid multiple representation and demarcation disputes in workplaces. The Trade Union Act 1941 restricted the number of trade unions by provided for licensing.
Part of the Act which provided for a Tribunal to decide which union should organise in respect to which trades was found unconstitutional. It purported to limit the right of the citizen to join one or more prescribed associations.
Legislation has restricted number of representative bodies which may represent An Garda Síochána. The limitation requiring the consent of the Commissioner to establish further associations was upheld as constitutional.
The restriction was only limited to associations designed to negotiate in relation to terms of employment. Other associations could be formed. The Supreme Court viewed the provision as the regulation of the right of association rather, than its restriction.
Limits on Right to Associate
Murtagh Property v. Cleary, a policy or general rule which seeks to prevent an employer from employing men or women on the ground of sex only was held to be prohibited by the Constitution. Picketing aimed at achieving unconstitutional discrimination was restrained. It constituted a breach of the right to work and earn a livelihood in breach of the Constitution.
Picketing may contravene a person’s constitutional right. See the Educational Company of Ireland v. Fitzpatrick, Murtagh and Cleary and Crowley v. Ireland. In the latter case, industrial action by INTO was held to contravene pupils, it involved blocking away primary school, was held to contravene children’s constitutional rights to primary education.
In Aughey v. Ireland, the constitutional guarantee of association was held to be legitimately restricted in the case of An Garda Síochána. This was justified on the basis of state security considerations.
A number of Garda representative bodies have been established, and members may join one of these organisations. Industrial action is prohibited. There is no constitutional right to have a union recognised. The EU Charter of Fundamental provides that workers and representatives must at the appropriate levels be guaranteed information and consultation in good time in cases and under conditions provided by community law and national practice.
Closed Shop & Union Membership
In Educational Company of Ireland v. Fitzpatrick, the Supreme Court held that picketing seeking to compel prohibit employment of nonunion members was an unlawful breach of constitutional rights of dissociation and elect not to join in association.
In Meskell v. CIE, damages were awarded to an employee who was dismissed for failure to be a union member. In Becton Dickinson and Lee, the Supreme Court majority, the employer had entered an agreement with two trade unions to require that employees would become members of the unions concerned.
When employees refused to move to the Union, a strike was called. Walsh J indicated that term in the contract of employment regarding trade union membership was not void under the Constitution, but do not express a view on how far and in what circumstances a person can contract doubt of a constitutional right.
Regulation of Union
In NUR v. Sullivan provisions of the Trade Union Act, 1941 were held to be unconstitutional. They sought to provide for an exclusive negotiating licence for unions within a particular group. The licence was to be granted by a tribunal and was to last for five years. It was held that the prohibition on employees joining other unions was contrary to their Rights of Association.
The Act does not prohibit all association, but it purports to limit the rights of citizens to join one or more prescribed associations. Any such limitation undoubtedly deprives the citizens of a free choice of residence with whom he shall associate with… the Constitution states the rights of citizens to form associations or unions in an empathic and it seems impossible to harmonise this language with a law which prohibits the forming of associations and unions and allows the citizen only to join prescribed associations and union.
The electoral legislation required that a party could not appear on a ballot paper as such unless a registrar of political parties were satisfied that it was a genuine political party and organised to contest a general or local election. Existing parties were automatically registered, but new parties could be refused registration.
The applicant an independent candidate for Dail challenged the validity of the decision and the constitutionality of the legislation permitting it. The Supreme Court upheld the restriction on the basis that control, and regulation was justified in order to protect genuine political action from a proliferation of bogus front organisations.
In a case involving male only membership rules in a golf club, the constitutional right of association was rejected as a basis for entitlement to the privileges of club (liquor) licence. Although the right to association was constitutionally protected the incidental right to a social club licence was not protected.
Similar conclusions were reached in a challenge by the PMPS, to legislation which prohibited holding deposits. It was held this was a regulation of the right of association rather than a prohibition of association. This was the case irrespective of the fact that the effect was to terminate the effective purpose of the association.