The courts and delegated officers of local jurisdictions may impose restrictions on any of the rights of a convicted criminal as a condition of a legal stipulation. Rights to freedom of association and freedom of assembly are waived under certain circumstances, such as a guilty plea or conviction, restraining orders and probationer's search and seizure procedures. Freedom of association is also legally restricted in certain circumstances such as with the Civil Rights Act, in which private discrimination against certain protected classes was made illegal.[3]
History
The general freedom to associate with groups according to the choice of the individual, and for the groups to take action to promote their interests, has been a necessary feature of every democratic society. Because freedom of association necessarily recognizes pluralistic sources of power and organisation, aside from the government, it has been a primary target for repression by all dictatorial societies. In the United Kingdom, all forms of "combination" were prohibited and criminal, particularly worker organisations, until the Combination Act 1825. After this, it was still not by the Companies Act 1856, the Trade Union Act 1871 and the Criminal Conspiracy and Protection of Property Act 1875 that companies and then trade unions became generally lawful. In Germany, a similar set of repressive laws were put in place against both trade unions and social democrat organisations by the Bismarck government under the Sozialistengesetze (the "Socialist Acts") in 1878. These remained in force until 1890. In 1933, trade unions were once again prohibited by the Fascist dictatorship of Hitler's National Socialist party, and the existing unions were nationalized and combined into a single government controlled German Labor Front. In West Germany after World War II, free trade unions were quickly resurrected and guaranteed by the German Grundgesetz. In the United States, trade unions were classified by various state courts, at various times, as being in restraint of trade. Under the Clayton Act of 1914, trade unions were given a general freedom to organize and to act collectively to secure collective agreements, however further hurdles were put in place until the National Labor Relations Act of 1935 created a comprehensive labor code.
Under Canadian jurisprudence, freedom of association has three dimensions: the "constitutive" right to form associations with other people, a "derivative" right to collectively invoke other constitutional rights, and the "purposive" right to collectively bargain in order to be on equal footing with other groups and entities.[4]
In Italy the freedom of association is established in Article 18 of the Constitution, which states:[5]
Citizens have the right to form associations freely and without authorization for those ends that are not forbidden by criminal law. Secret associations and associations that, even indirectly, pursue political aims by means of organisations having a military character shall be forbidden.
The South African Constitution's Bill of Rights establishes the right to freedom of association in Section 18, which states "Everyone has the right to freedom of association." Furthermore, Section 17 states "Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present petitions", thus establishing the right to freedom of assembly. Workers' right to freedom of association in terms of the right to form trade unions and collective bargaining is recognized separately, in Section 23.[6]
While the United States Constitution's First Amendment identifies the rights to assemble and to petition the government, the text of the First Amendment does not make specific mention of a right to association. Nevertheless, the United States Supreme Court held in NAACP v. Alabama (1958) that freedom of association is an essential part of freedom of speech because, in many cases, people can engage in effective speech only when they join with others.[7] Other Supreme Court cases involving freedom of association issues include:[8]
A fundamental element of personal liberty is the right to choose to enter into and maintain certain intimate human relationships. These intimate human relationships are considered forms of "intimate association." The paradigmatic example of "intimate association" is the family. Depending on the jurisdiction it may also extend to abortion, birth control and private, adult, non-commercial and consensual sexual relationships.
Expressive association
In the United States, expressive associations are groups that engage in activities protected by the First Amendment – speech, assembly, press, petitioning government for a redress of grievances, and the free exercise of religion. In Roberts v. United States Jaycees, the U.S. Supreme Court held that laws banning associations from excluding people for reasons unrelated to the group's expression are constitutional. However, in the subsequent decisions of Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Court ruled that a group may exclude people from membership if their presence would affect the group's ability to advocate a particular point of view. The government cannot, through the use of anti-discrimination laws, force groups to include a message that they do not wish to convey.
This concept continues to apply broadly to private groups, notwithstanding the Supreme Court's ruling in Christian Legal Society v. Martinez (2010), which upheld Hastings College of Law policy that a student group on campus could not enjoy university recognition while excluding people from group activities by requiring them to undergo a religious test. The Court found that the school's conditions on recognizing student groups were viewpoint neutral and reasonable. The policy requires student organizations to allow "any student to participate, become a member, or seek leadership positions, regardless of their status or beliefs" and so, can be used to deny the group recognition as an official student organization because it had required its members to attest in writing that "I believe in: The Bible as the inspired word of God; The Deity of our Lord, Jesus Christ, God's son; The vicarious death of Jesus Christ for our sins; His bodily resurrection and His personal return; The presence and power of the Holy Spirit in the work of regeneration; [and] Jesus Christ, God's son, is Lord of my life." The Court reasoned that Hastings sought to treat all student groups equally; the CLS, on the other hand, sought an exemption to apply a religious test to their membership. Thus, the college's all-comers policy is a reasonable, viewpoint-neutral condition on access to the student organization forum.[9]
Limitation
The implicit First Amendment right of association in the U.S. Constitution has been limited by court rulings. For example, it is illegal in the United States to consider race in the making and enforcement of private contracts other than marriage. This limit on freedom of association results from Section 1981 of Title 42 of the United States Code, as balanced against the First Amendment in the 1976 decision of Runyon v. McCrary.[10]
The organization of labor was commonly resisted during the 19th century, with even relatively liberal countries such as the United Kingdom banning it for various periods (in the UK's case, between 1820 and 1824).[11]
In the international labour movement, the freedom of association is a right identified under international labour standards as the right of workers to organize and collectively bargain. Freedom of association, in this sense, is recognized as a fundamental human right by a number of documents including the Universal Declaration of Human Rights and International Labour OrganizationConvention C87 and Convention C98 – two of the eight fundamental, core international labour standards. 'Freedom of association' can also refer to legal bans on private contracts negotiated between a private employer and their employees requiring workers at a particular workplace to join a union as a term and condition of employment. Supporters of this sort of private freedom of association claim that the right to join a union incorporates a right not to join a union. In the United States, the term 'right-to-work law' is more common for this type of law.
"The Supreme Court today (1-21-1997) sharply limited the ability of labor union organizers to go onto an employer's property to distribute literature or urge workers to join the union. In a 6-to-3 opinion written by Justice Clarence Thomas, the Court said that the National Labor Relations Board had failed to give adequate protection to employers' property rights when it adopted a rule four years ago that gave union organizers greater access to areas like the parking lots of shopping centers or factories." -New York Times[12]
Theory
Democracy and civil society
Jeremy McBride argues that respecting the freedom of association by all public authorities and the exercising of this freedom by all sections of society are essential both to establish a "genuine democracy" and to ensure that, once achieved, it remains "healthy and flourishing". In this regard he sees the formation of political parties as a significant manifestation of the freedom of association.
The freedom of association is however not only exercised in the political sense, but also for a vast array of interests – such as culture, recreation, sport and social and humanitarian assistance. Jeremy McBride argues that the formation of non-governmental organizations (NGOs), which he equates with civil society, is the "fruit of associational activity".[1]
Libertarian
Right-libertarians believe that while freedom of association includes the right for workers to organise as unions and to withdraw their labour it also recognises the right of an employer to replace that labour.[13] They also believe that where unions employ coercive or violent tactics, such behaviours would be in breach of both individual rights and property rights. Some critics of unionism allege that such breaches have frequently been the case with union activity.[14]
A trade union or labor union, often simply referred to as a union, is an organization of workers whose purpose is to maintain or improve the conditions of their employment, such as attaining better wages and benefits, improving working conditions, improving safety standards, establishing complaint procedures, developing rules governing status of employees and protecting and increasing the bargaining power of workers.
Labour laws, labour code or employment laws are those that mediate the relationship between workers, employing entities, trade unions, and the government. Collective labour law relates to the tripartite relationship between employee, employer, and union.
The National Labor Relations Act of 1935, also known as the Wagner Act, is a foundational statute of United States labor law that guarantees the right of private sector employees to organize into trade unions, engage in collective bargaining, and take collective action such as strikes. Central to the act was a ban on company unions. The act was written by Senator Robert F. Wagner, passed by the 74th United States Congress, and signed into law by President Franklin D. Roosevelt.
Strike action, also called labor strike, labour strike in British English, or simply strike, is a work stoppage caused by the mass refusal of employees to work. A strike usually takes place in response to employee grievances. Strikes became common during the Industrial Revolution, when mass labor became important in factories and mines. As striking became a more common practice, governments were often pushed to act. When government intervention occurred, it was rarely neutral or amicable. Early strikes were often deemed unlawful conspiracies or anti-competitive cartel action and many were subject to massive legal repression by state police, federal military power, and federal courts. Many Western nations legalized striking under certain conditions in the late 19th and early 20th centuries.
Adair v. United States, 208 U.S. 161 (1908), was a US labor law case of the United States Supreme Court which declared that bans on "yellow-dog" contracts were unconstitutional. The decision reaffirmed the doctrine of freedom of contract which was first recognized by the Court in Allgeyer v. Louisiana (1897). For this reason, Adair is often seen as defining what has come to be known as the Lochner era, a period in American legal history in which the Supreme Court tended to invalidate legislation aimed at regulating business.
Collective bargaining is a process of negotiation between employers and a group of employees aimed at agreements to regulate working salaries, working conditions, benefits, and other aspects of workers' compensation and rights for workers. The interests of the employees are commonly presented by representatives of a trade union to which the employees belong. A collective agreement reached by these negotiations functions as a labour contract between an employer and one or more unions, and typically establishes terms regarding wage scales, working hours, training, health and safety, overtime, grievance mechanisms, and rights to participate in workplace or company affairs. Such agreements can also include 'productivity bargaining' in which workers agree to changes to working practices in return for higher pay or greater job security.
The Labor Management Reporting and Disclosure Act of 1959, is a US labor law that regulates labor unions' internal affairs and their officials' relationships with employers.
In the context of labor law in the United States, the term right-to-work laws refers to state laws that prohibit union security agreements between employers and labor unions. Such agreements can be incorporated into union contracts to require employees who are not union members to contribute to the costs of union representation. Unlike the right to work definition as a human right in international law, U.S. right-to-work laws do not aim to provide a general guarantee of employment to people seeking work but rather guarantee an employee's right to refrain from being a member of a labor union.
United States labor law sets the rights and duties for employees, labor unions, and employers in the US. Labor law's basic aim is to remedy the "inequality of bargaining power" between employees and employers, especially employers "organized in the corporate or other forms of ownership association". Over the 20th century, federal law created minimum social and economic rights, and encouraged state laws to go beyond the minimum to favor employees. The Fair Labor Standards Act of 1938 requires a federal minimum wage, currently $7.25 but higher in 29 states and D.C., and discourages working weeks over 40 hours through time-and-a-half overtime pay. There are no federal laws, and few state laws, requiring paid holidays or paid family leave. The Family and Medical Leave Act of 1993 creates a limited right to 12 weeks of unpaid leave in larger employers. There is no automatic right to an occupational pension beyond federally guaranteed Social Security, but the Employee Retirement Income Security Act of 1974 requires standards of prudent management and good governance if employers agree to provide pensions, health plans or other benefits. The Occupational Safety and Health Act of 1970 requires employees have a safe system of work.
Labor rights or workers' rights are both legal rights and human rights relating to labor relations between workers and employers. These rights are codified in national and international labor and employment law. In general, these rights influence working conditions in the relations of employment. One of the most prominent is the right to freedom of association, otherwise known as the right to organize. Workers organized in trade unions exercise the right to collective bargaining to improve working conditions.
An open shop is a place of employment at which one is not required to join or financially support a union as a condition of hiring or continued employment.
A strikebreaker is a person who works despite an ongoing strike. Strikebreakers may be current employees, or new hires, who are hired after or during the strike to keep the organization running. In continuing to work, or taking jobs at a workplace under current strike, strikebreakers are said to "cross picket lines".
Union busting is a range of activities undertaken to disrupt or weaken the power of trade unions or their attempts to grow their membership in a workplace.
Dunmore v Ontario (AG), 2001 SCC 94 is a leading Supreme Court of Canada decision on the constitutional right to freedom of association under section 2(d) of the Canadian Charter of Rights and Freedoms ("Charter"). The Court held that the lack of a positive framework that protected farm workers from employer reprisals for exercising their associational rights under the Charter constituted a "substantial interference" of their right to freedom of association. The Ontario government responded with the Agricultural Employees Protection Act, which extended only to agricultural workers and prohibited employer reprisals against employees exercising their rights under section 2(d) of the Charter.
Labor relations or labor studies is a field of study that can have different meanings depending on the context in which it is used. In an international context, it is a subfield of labor history that studies the human relations with regard to work in its broadest sense and how this connects to questions of social inequality. It explicitly encompasses unregulated, historical, and non-Western forms of labor. Here, labor relations define "for or with whom one works and under what rules. These rules determine the type of work, type and amount of remuneration, working hours, degrees of physical and psychological strain, as well as the degree of freedom and autonomy associated with the work." More specifically in a North American and strictly modern context, labor relations is the study and practice of managing unionized employment situations. In academia, labor relations is frequently a sub-area within industrial relations, though scholars from many disciplines including economics, sociology, history, law, and political science also study labor unions and labor movements. In practice, labor relations is frequently a subarea within human resource management. Courses in labor relations typically cover labor history, labor law, union organizing, bargaining, contract administration, and important contemporary topics.
A collective agreement, collective labour agreement (CLA) or collective bargaining agreement (CBA) is a written contract negotiated through collective bargaining for employees by one or more trade unions with the management of a company that regulates the terms and conditions of employees at work. This includes regulating the wages, benefits, and duties of the employees and the duties and responsibilities of the employer or employers and often includes rules for a dispute resolution process.
NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938), is a United States labor law case of the Supreme Court of the United States which held that workers who strike remain employees for the purposes of the National Labor Relations Act (NLRA). The Court granted the relief sought by the National Labor Relations Board, which sought to have the workers reinstated by the employer. However, the decision is much better known today for its obiter dicta in which the Court said that an employer may hire strikebreakers and is not bound to discharge any of them if or when the strike ends.
Wilson v United Kingdom [2002] ECHR 552 is a United Kingdom labour law and European labour law case concerning discrimination by employers against their workers who join and take action through trade unions. After a long series of appeals through the UK court system, the European Court of Human Rights held that ECHR article 11 protects the fundamental right of people to join a trade union, engage in union related activities and take action as a last resort to protect their interests.
South African labour law regulates the relationship between employers, employees and trade unions in the Republic of South Africa.
International labour law is the body of rules spanning public and private international law which concern the rights and duties of employees, employers, trade unions and governments in regulating Work and the workplace. The International Labour Organization and the World Trade Organization have been the main international bodies involved in reforming labour markets. The International Monetary Fund and the World Bank have indirectly driven changes in labour policy by demanding structural adjustment conditions for receiving loans or grants. Issues regarding Conflict of laws arise, determined by national courts, when people work in more than one country, and supra-national bodies, particularly in the law of the European Union, have a growing body of rules regarding labour rights.
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