Freedom of association

Freedom of association is fundamental to a free and democratic society. For a functioning democracy people must be free to form and join political parties. The right extends beyond the political sphere to all forms of association: social, religious, cultural, sporting etc. A liberal, democratic society like Australia would be unimaginable without this right. A person with particular religious or social views is likely to wish to associate with others who hold similar views. Limiting the right of association is likely to have an adverse impact on a person’s practical ability to express and share those views. Thus freedom of association is intimately bound up in the freedom of assembly, freedom of belief and freedom of speech. The First Amendment in the US Bill of Rights provides: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances”. Although it does not expressly refer to freedom of association, it has been interpreted as protecting that freedom because of its connection with the other freedoms it mentions. Freedom of Association is also closely linked with industrial democracy. It is concerned with the collective organisation of workers for the purpose of furthering their economic and social interests. Implicit in the notion of freedom of association is the recognition of the unequal bargaining power between the employer and employee. According to Lord Wedderburn ‘it is the freedom of the individual which is at stake in the inequality of the employment relationship and to which fundamental rights must always be addressed.’ Thus the way to address the freedom of the individual in the workplace context is to recognise that for those without power collective organisation is necessary. The right to Freedom of Association is found in a number of international instruments. Article 20 and 23(4) of the Universal Declaration of Human Rights, Article 22 of the International Covenant on Civil and Political Rights (ICCPR), Article 8 of the International Covenant on Economic, Social and Cultural Rights (ICESCR), and International Labour Convention 87 on Freedom of Association and the Right to Organise all recognise this right. The fact that the right is found in all the major international human rights instruments signifies its importance for the working man and woman. The justification for this right can be found in the Preamble to the Constitution of the International Labour Organisation adopted in 1919 as part of the Treaty of Versailles. The Preamble recognised that there was mass exploitation and economic hardship amongst the working people of Europe that contributed to social unrest and disharmony. It was believed by nations of the world that universal and lasting peace can only be established on social justice. Liberty Victoria believes international human rights should govern the regulation of working relationships. Australia is a signatory to all these instruments and should bring its law into conformity with the rights it has ratified. It has long been recognised in Europe that human beings enter the workforce with their rights intact. The right to freedom of association and freedom of assembly are a necessary component of industrial justice and democracy. Labour is different to other components in the productive process and should not be treated as a commodity. From the moment that Justice Higgins handed down the Harvester decision in 1907 the notion of fairness and social justice has been an important premise of the Australian industrial relations system. Unfortunately in recent times these notions have been seriously undermined with legislative attempts to curb freedom of association and assembly in the workplace context. Liberty Victoria believes that workplace democracy and the ability to participate in workplace decision-making to ensure equitable conditions is an important adjunct to meaningful participation in the broader civic life of the nation. In addition, Liberty Victoria believes that the freedom to associate is vital to the protection of the right to hold and express opinions, especially unpopular opinions.