Voluntary unionism and the freedom to associate

It is hard to argue with anything done in the name of a fundamental human freedom. The federal Government adopts this high ground when it repeatedly invokes freedom of association in support of its push for voluntary student unionism.

In March 2005, federal Education Minister Brendan Nelson made repeated references to freedom of association when he reintroduced legislation to abolish up-front compulsory student union fees. Speaking in support of an earlier version of the bill in 2003, Liberal MP Greg Hunt referred to freedom of association six times in his speech. The Government relied on the same argument to support its prohibition of compulsory union fees in the Workplace Relations Act.

The argument claims to be one that gives effect to the Universal Declaration of Human Rights. But in doing so the Government has misunderstood or oversimplified the authority on which it relies. Does the right to associate in fact support a policy that enables people not to associate? Many assume so. In parliament in 2001, the then Veterans Affairs minister Danna Vale referred to ‘the right to not associate’, and Labor’s Julia Gillard conceded the existence of what she called ‘the negative right, the freedom not to associate’.

Qualified in this way, the human rights guarantee of freedom to associate has been effectively restated as the freedom to choose whether to associate. But the freedom to associate cannot be watered down as readily as that.

Freedom of association is an extension of individual freedom and a guarantee that people will not be prevented from the collective pursuit of common goals. It is a constraint on a government’s attempts to limit people’s engagement with society and is closely connected to freedoms of thought and expression.

A leading Canadian case, Lavigne v Ontario Public Service Employees Union, recognised it as axiomatic that there was a community interest in sustaining democracy, an essential element of which is associational  activity. As the court said, the freedom protects individuals from the vulnerability of isolation and ensures the potential of effective participation in society.

The court decided that compulsory union fees were not in breach of the freedom to associate but was divided as to why. Four of the seven judges supported the idea of a right to not associate but said that in the circumstances the requirement to join the union was justified. The remaining three judges saw the freedom as a guarantee of just what it says: the right to associate, with no bilateral dimension encompassing non-association.

The real harm, the judges said, produced by compelled association is not the fact of association but any enforced support of views, opinions or actions that a person does not share or approve of. One can see here a clear connection between the freedoms of association and expression.

The integral place that freedom of association has in a functioning democracy makes it difficult to say, without refinement or qualification, that people are free to not associate. Some associations cannot be abandoned by those who don’t feel like joining up. There is more at stake, in the larger picture of civil society and democratic institutions, than a mere personal preference to not belong.

In Lavigne, being compelled to join did not prevent the member from expressing their views. The price paid for compulsory membership was only the the fees necessary to sustain the organisation; the mandatory payment did not require conformity with the ideas and values of the association or prevent the members from expressing views contrary to those of the association.

The freedom is not one of simple choice — to associate or not to associate — because there will be occasions when the need to maintain collective organisations transcends personal preference, at least when compulsory membership does not at the same time compel support for all that the organisation stands for.
This is, however, part of a continuing debate along the lines of the division in the Lavigne case.

In 2001 a South African court, in Hanse Cronje’s case against the South African Cricket Board, relied on the Lavigne minority to say that freedom of association necessarily carries with it an unqualified freedom to not associate.

The European Court of Human Rights also has been divided on the issue for more than 20 years. Those on the European court who support a right of non-association nevertheless recognise that it has more to do with being compelled to take action or support values as a part of the association than it does with the payment of mandatory fees.

Invoking the freedom of association in support of abolishing compulsory student union fees is simplistic.  More accurately, for purposes of public debate, it should be explicitly spelled out that what is being  discussed is the right to non-association, a term that Nelson seems reluctant to use.

Besides, if compulsory student union fees are to fall foul of such a right, it is not enough merely to point to the mandatory nature of the fees. The case must address two further issues. The first is whether, on payment of the fee, members are compelled to agree with the ideas, values and activities of the union. The second is the importance in society of maintaining a viable collective voice for students in the higher education sector.

The international human rights principles invoked in support of voluntary unionism require the debate to  address these more complex questions, whatever the answers might be.

First published in The Australian newspaper on 27 April 2005 as ‘More than a simple matter of choice‘.