Topic 5 - Freedom of Association

Question 1

Negative freedom of association

Answer 1

the right of a worker not to join a trade union – to dissociate.

Question 2

Positive freedom of association

Answer 2

the freedom of people to form associations

Question 3

Wedderburn Negative freedom of association

Answer 3

the absence of any laws or rules preventing the formation of trade unions

Question 4

Wedderburn Positive freedom of association

Answer 4

positive state support of workers who wish to join a union. We have this to a limited extent in Ireland.

Question 5

Doyle v Croke [1998]; Nature of FoA

Answer 5

FOA should not be construed restrictively - embraces fair procedures

Question 6

The Irish Times v Ireland [1998]; Nature of FoA

Answer 6

Obiter - would be absurd to suggest that the right of citizens to form associations would not also allow them to participate in such organisations

Question 7

Equality Authority v Portmarnock Golf Club [2010]; Nature of FoA

Answer 7

FoA protects not only the act of association but the pursuit of the lawful purposes for which the association has been formed.

Question 8

Wilson v UK [2012] - ECHR; Nature of FoA

Answer 8

Legislation which allowed an employer to treat trade unionists less favorably than non-trade unionists - struck down under Article 11 (state action rather than employer)

Question 9

Demir v Turkey [2009] - ECHR; Nature of FoA

Answer 9

State frustrated ability of trade union to engage in collective bargaining - struck down under Article 11 (state action rather than employer)

Question 10

Educational Co. of Ireland Ltd v Fitzpatrick (1961); Right to dissociate

Answer 10

Union tried to force employer to make employees join trade union; employer refused and union members went on strike.
SC: the guarantee of freedom of association is only intelligible where you have a right to disassociate

Question 11

Meskell v. C.I.E. (1973); Right to dissociate

Answer 11

Employer fired employees and offered to rehire if they became a member of one of four trade unions.
Courts found that the means used here was unlawful; cannot force someone to give up their right.

Question 12

Becton-Dickinson & Co. Ltd. v. Lee [1973]; Right to dissociate

Answer 12

Obiter:
Where prospective employees are offered employment on condition that they join and remain members of a specified union could be regarded as a valid waiver by the prospective employee of the right to dissociate.

Question 13

Sorensen v. Denmark [2008]; Right to dissociate

Answer 13

Applicant here was required to join specified trade union upon application for a job.
ECHR: Found that Article 11 encompassed a negative right of association. Cannot be considered to have waived his right here.
-note contrast with Becton here.

Question 14

Tierney v A.S.W. [1959]; Right to join

Answer 14

Case concerning carpenter who did not meet classifications required by trade union, reduced his chance of employment.
SC: Rejected that there was a violation of his con right to work here. No explicit reference to FoA

Question 15

Murphy v. Stewart [1973]; Right to join

Answer 15

Case concerning a worker who wanted to transfer between trade unions but hadn’t gotten the consent of the first trade union.
SC: Con refers to the right to form unions rather than the right to join them. union might be compelled to accept membership where it was necessary to vindicate their right to work

Question 16

O’Connell v. BATU [2014]; Right to Join

Answer 16

Applicant needed to be a member to get a job: found that this did breach his right.
Also relevant to closed shop scenarios; otherwise closed-shop arrangement is set aside

Question 17

Rodgers v. ITGWU [1978]; Right to participate in decision making process

Answer 17

It is a necessary corollary to the right to join and become a member of a trade union that the right must extend to taking part in decision-making processes - Trade union may arrange to formulate rules regarding this (decision making in hands of delegates)

• Assumes a right to join*
• Right to participate may be severely restricted by unilateral action of the union in drafting the rule book*

Question 18

Doyle v Croke [1988]; Right to participate in decision making process

Answer 18

People who had not taken part in a strike were excluded in the ultimate negotiation. Costello defends Rodgers on the basis of fair procedures.

Question 19

Abbot & Whelan v ITGWU & SHB [l980]; Right to negotiate

Answer 19

Refusal of employer to negotiate where employees had switched unions.
HC: found that there was no duty on employer to recognise or negotiate with a particular trade union.

Question 20

Ryanair Ltd. v. Labour Court [2007]; Right to negotiate

Answer 20

Ryanair refused to recognise trade union.
SC: Law could not be enacted to make an employer deal with trade unions.
Implication here that trade unions could not take industrial action to force an employer to recognise them: would breach the right of the employer

Question 21

Demir v. Turkey [2009]; Right to negotiate

Answer 21

Recognised that the state cannot interfere with collective agreements which have already been reached between employer and trade union.

Question 22

Brendan Dunne Ltd. v. Fitzpatrick [1958]; Right to take industrial action

Answer 22

Stated that the Constitution protected the right of the employer and employee respectively ‘to deal with and dispose of their property and labour as they will without interference unless such interference be made legitimate by law’

Question 23

Bates v. Model Bakery Ltd. [1992]; Right to take industrial action

Answer 23

The SC endorsed the ‘suspension theory’ of strike action: where employees give their employer appropriate notice and then strike, it serves to suspend the contract.

Question 24

Talbot (Ireland) Ltd. v. Merrigan [1981]; Right to take industrial action

Answer 24

Talbot were a motor car company importing fully built-up motors, trade union called for an embargo on their products.
Held that third parties could rely on the Con to protect their interests and restrain the industrial action.

Question 25

Crowley v. Ireland [1980]; Right to take industrial action

Answer 25

Dispute between teacher’s union and primary schools; resulted in the union telling other schools not enroll students from schools where teachers were striking.
Found that this amounted to an abuse of their FoA; had violated children’s right to primary education.

Question 26

Distinction between right to strike and right to take industrial action.

Answer 26

Industrial action includes the right to strike, but also includes other forms of industrial action.
Arguable from case law that right to strike is constitutionally protected whereas other forms of industrial action do not benefit from the same constitutional protection.

Question 27

Enerji Yapi-Yol Sen v. Turkey [2009]; Right to take industrial action

Answer 27

Takes the view that the right to strike is protected under article 11.

Question 28

Hayes v. Ireland [1987]; Right to take industrial action

Answer 28

Carroll J (obiter): If teachers in the crowley case had employed a nation-wide strike instead they would have been exercising a con right in a bona fide manner for a legitimate purpose.

Question 29

Loftus v. Attorney General [1979]; Political Process

Answer 29

Deals with whether preferential treatment of registered political parties infringes FoA.
SC: Found legitimate purpose - to be organised to contest elections.

Question 30

Equality Authority v. Portmarnock Golf Club [2010]: Equal Status Act 2000

Answer 30

Golf Club which denied full membership to women, argued that this was contrary to the act.
Found that FoA is a pre-existing natural right. Supported the proposition that people can associate freely for any lawful purpose upon which they agree.

Question 31

S18 Offences Against the State Act; Restrictions on FoA under state security

Answer 31

Defines unlawful organisations as those who participate in;

1. A criminal offence.
2. Attainment of any particular objective by violent, criminal or other unlawful means.
3. Non-payment of taxes.

Question 32

S 19 Offences Against the State Act; Restrictions on FoA under state security

Answer 32

Declaration of the government that an organisation is illegal is evidence of illegality.

Question 33

Sloan v Special Criminal Court [1993]; Restrictions on FoA under state security

Answer 33

Costello finds this is not problematic, justicability of a case is whether or not person is a member. Problematic, seems that they should also have the arguement open to them that it is not an illegal organisation

Question 34

O’Leary v Attorney General [1993]; Restrictions on FoA under state security

Answer 34

Argument that the effect of an article was to shift the the burden of proof away form the prosecution and onto the defense.
Found that shifting the evidential burden of proof is allowed.

Question 35

Aughey v Ireland [1989]; Restrictions on FoA under public interest

Answer 35

Considerations of the public interest could not justify a complete ban on a particular association; could only permit regulation, not prohibition.

Question 36

McKenzie v. Minister for Defence [2010] HC; Restrictions on FoA under public interest

Answer 36

Members of the representative body for defense forces argued that they should be allowed to make representations about cutbacks.
HC: took the view that the government were allowed to act swiftly and unilaterally in the national interest in times of crisis.
Note economic factors here

Question 37

NUR v. Sullivan [1947]; Restrictions on FoA under public interest

Answer 37

Case regarding legislation placing a tribunal in charge of which trade unions would be granted sole negotiating rights.
SC: Successful, found that this limited the right of the citizen to join a trade union of their choice and constituted a denial of the right.

Question 38

NUJ v Sisk [1991] SC

Answer 38

This involved a proposed merger of an Irish based union into a British based union.
SC: Where the Oireachtas is going to regulate FoA in public interest, it must do so explicitly