No “I” in Students’ Union: The Constitutional Right to Opt-Out

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Eoin Forde JF Law, JEB

Introduction

The issue of mandatory Student Union membership is one that has reared its head on Irish college campuses many times over recent years. The genesis of modern campaigns can be seen in 2015, with some students of UCDSU wishing to ‘opt-out’ due to the union’s position on the Eighth Amendment.[1] More recently, campaigns across multiple other colleges have picked up steam; DCU, NUIG, and Trinity have all seen students organising opposition to mandatory membership.[2] Some students claim it would aid in ensuring the unions are always working for their members, while others simply want the option to be able to leave if they feel like it. Students’ Union Opt Out Project (SUOOP) in TCD, along with many other campaigns, have cited a fundamental right in justifying their campaign: the right to freedom of association.[3]

This raises some questions. Does the right to freedom of association extend to its corollary, freedom of disassociation? Would this freedom of disassociation extend to a student wishing to disassociate from a student union? Finally, if so does the current TCDSU constitution and joint policy program with the college violate this right?

The Irish Constitution is quite clear in its protection of freedom of association, and outlines the rights of its citizens in Article 40.6:

“The State guarantees liberty for the exercise of the following rights, subject to public order and morality…

(iii) the right of the citizens to form associations and unions.”[4]

 

Precedent for Freedom of Disassociation

The freedom to disassociate was recognised in Educational Company of Ireland Ltd v Fitzpatrick (no.2).[5] In Educational Company of Ireland, Budd J outlined a citizen’s freedom to disassociate in relation to mandatory union membership:

‘[U]nder the Constitution a citizen is free to join or not to join an association or union as he pleases. Further, that he cannot be deprived of the right to join or not to join such association or union as he pleases… and that is tantamount to saying that he may not be compelled to join any association or union against his will.’[6]

This ruling was subsequently applied in Meskell v CIE [1973] IR 121.[7] In Meskell, rail workers were offered revised contracts with the added mandatory condition of membership of a representative workers’ union. The plaintiff, a worker who refused to sign this updated contract, argued that it was “a violation of the individual’s freedom of choice”.[8] Walsh J, in applying the ruling of Educational Company of Ireland, stated:

‘[I]f the Oireachtas cannot validly seek to compel a person to forego a constitutional right, can such a power be effectively exercised by some lesser body or an individual employer? To exercise what may be loosely called a common law right… as a method of compelling a person to abandon a constitutional right, or as a penalty for his not doing so, must necessarily be regarded as an abuse of the common law right because it is an infringement, and an abuse, of the Constitution which is superior to the common law and which must prevail if there is a conflict between the two.’[9]

It is within this ruling where the precedent for challenging the mandatory nature of SU membership lies. The right to disassociate must be respected in contractual agreements, such as contracts of employment.[10] The right to disassociate has since been explicitly referred to in Nolan Transport (Oaklands) Ltd v Halligan.[11] In the leading Supreme Court ruling, Murphy J referenced the constitutionally protected right of disassociation in the context of a union dispute, further cementing its existence and prominence as a protected right.[12]

From this, the question may be put forward to the administration of Trinity and TCDSU – what legal basis is there for enforcing mandatory membership of the TCDSU?

 

College and TCDSU Organisational Structure

Understanding the complexity of the relationship between Trinity and TCDSU requires perusing through many charters, statutes, and policy documents. At its heart is the Consolidated Statutes of Trinity College Dublin and of the University of Dublin, 2010. It is from these statutes that power is delegated from the board to the Student Life Committee and then to the Capitation Committee, chaired by the Senior Dean. From here, funds are appropriated to the various capitated bodies – the CSC, DUCAC, TCDSU, TCDGSU and Trinity Publications.[13]

A “capitated body” is a body in College that receives its funding through student capitation; student contribution fees are collected by College and then distributed to the appropriate bodies. Kieran McNulty, former TDCSU president, summarised the capitation model, stating ‘College does not provide us with any money. It comes from students’.[14]

It is from this process which TCDSU derives the first section of its constitution:

“Membership of the union shall be:

  1. All capitated students.”[15]

While the establishment of the TCDSU comes directly from Trinity’s own charters, in practice the TCDSU is an autonomous body. TCDSU does not have to justify any expenses to College, and College cannot stop the TCDSU from commenting or campaigning on any topic.[16] As a union which is intended to advocate for students of the college, it follows that it must be able to hold positions which may be critical of and disagreed with by the college. A cursory glance at the University Times website offers articles detailing TCDSU’s opposition to numerous college policies; its contract with Aramark Catering, the use of single-use plastics around campus, and the increase of student fees.[17]

As a result, a situation has arisen in which enrolling in College compels membership of a union which is virtually independent of College. In such a system, the only way to remove oneself from this union is to become ‘decapitated’, as it were. The only possible way for this to occur is to withdraw from college itself and unregister as a student.

TCDSU’s Membership Model: Closed SU Shop?

From the outset, it appears the main issue comes with the fact that it is currently impossible to leave the TCDSU without also leaving College itself. There is no legislation or statute that discusses the option of students leaving the union.

Furthermore, TCDSU and College have stated in policy that this membership is a binding and deeply entrenched partnership. The Student Partnership Policy states, ‘All students are automatically members of TCDSU and are members of the University’, and ‘The Students’ Union is the only representative body for all students in Trinity College’.[18] Combining these aspects, TCDSU and College have agreed upon a system which compels membership, offers no option to leave, and forces monetary contribution from its students for the privilege. Such a system has been ruled unconstitutional in the previously mentioned cases. Meskell ruled in no uncertain terms that mandatory membership of a particular union in order to be part of another enterprise is unconstitutional.[19]

International Rejection of Mandatory Membership

Mandatory membership of specific student unions has been legislated against in common law jurisdictions similar to Ireland. Australia has the Higher Education Support Amendment (Abolition of Compulsory Up-front Student Union Fees) Bill 2005 which protects against colleges compelling payment for any non-academic good or service. New Zealand has a similar act, the aptly named Education (Freedom of Association) Amendment Act 2011. Section 4 of this Act states its purpose as: ‘to uphold students’ rights to freedom of association, by removing any requirement for students to join students’ associations.’[20]

Part II, s22 of the UK’s Education Act 1994 details the requirements to be observed in SU activity, and states:

‘a student should have the right—

(i)not to be a member of the union, or

(ii)in the case of a representative body which is not an association, to signify that he does not wish to be represented by it, and students who exercise that right should not be unfairly disadvantaged, with regard to the provision of services or otherwise, by reason of their having done so.’

The contrast between the position adopted by Ireland in this matter and that of its common law neighbours is stark. Furthermore, it is particularly problematic due to freedom of disassociation being a constitutionally protected right, implied in our written constitution and explicitly recognised by our Supreme Court. It appears that this is an issue which requires examination by College, or possibly the Courts.

Conclusion

A point yet to be addressed by this article is why this is an issue.

As it stands, there are very few students who would argue that their student experience is definitively worse-off due to mandatory membership of TCDSU. TCDSU has done much to support students, with the provision of student spaces, counselling, and other services. The point being made is not regarding the effectiveness of the TCDSU, nor the debate regarding the principle of mandatory membership. The argument is solely regarding the constitutional right to freedom of disassociation, which is violated by mandatory membership.

There is Supreme Court precedent explicitly protecting the freedom of disassociation in similar cases and there is persuasive precedent from similar common law jurisdictions legislating for a voluntary system. At the very least, there is an onus on the State to address this matter, through Department of Education guidelines to Higher Education institutions or perhaps legislation.

This issue could also be resolved by TCDSU and other student unions voluntarily allowing students to ‘opt-out’. If the services offered by student unions in their current form are as beneficial as they purport, there should be very few students willingly opting out of such an arrangement. This would offer students the freedom to disassociate some have reportedly demanded. The resulting situation of student unions having to justify the benefits of membership to its members may also increase the quality of service that it offers, benefitting the student body as a whole.

It also avoids the possibility of a financially draining legal battle, which on the basis of the established precedent would be unlikely to go the way of the student unions. TCDSU and other student unions across the country are finding their positions under threat from student dissatisfaction, divisive policy decisions and encroachment on their authority from the colleges they work with.[21] Perhaps fighting this issue from a position of attempting to justify constitutional infringement is not in their best interests.

[1] Irish Times: ‘Is your students’ union a waste of space and money?’ https://www.irishtimes.com/news/education/is-your-students-union-a-waste-of-space-and-money-1.2397299 (Retrieved 10/12/2017).

[2] University Times: ‘In Three Universities Students Seek the Right to Leave Their Union’ http://www.universitytimes.ie/2017/11/dcusu-becomes-third-union-to-see-leave-campaign-launched/ (Retrieved 10/12/2017).

[3] Trinity News: ‘Head to head: Should students be allowed to opt out of TCDSU?’ http://trinitynews.ie/head-to-head-should-students-be-allowed-to-opt-out-of-tcdsu/ (Retrieved 10/12/2017).

[4] Art 40.6.1®.

[5] [1961] IR 345.

[6] Ibid, at 365.

[7] M. Forde and D. Leonard, Constitutional Law of Ireland (3rd edn, Bloomsbury Professional 2013).

[8] [1973] IR 121, at 131.

[9] Ibid, at 135.

[10] R. Clark, Contract Law in Ireland (7th edn, Round Hall 2013).

[11] [1999] 1 IR 128.

[12] Ibid, at 151, ‘‘The issue was whether the protection afforded by that Act could be availed of where the industrial action to be taken infringed the right of the non-union workmen’s constitutional right of free disassociation”.

[13] Trinity College Dublin Calendar, 2017-18, at 268.

[14] University Times, ‘Amid Increasing Encroachments on Their Freedoms, Students’ Unions Seek to Legislate for Independence’ http://www.universitytimes.ie/2017/04/amid-increasing-encroachments-on-their-freedoms-students-unions-seek-to-legislate-for-their-independence/ (Retrieved 18/12/17).

[15] TCDSU Constitution.

[16] University Times, ‘Amid Increasing Encroachments on Their Freedoms, Students’ Unions Seek to Legislate for Independence’ http://www.universitytimes.ie/2017/04/amid-increasing-encroachments-on-their-freedoms-students-unions-seek-to-legislate-for-their-independence/ (Retrieved 18/12/17).

 

[17] University Times, ‘TCDSU to Lobby College Against Renewing Aramark Deal’ http://www.universitytimes.ie/2017/11/tcdsu-to-lobby-college-against-renewing-aramark-deal/ (Retrieved 18/12/17); University Times, ‘TCDSU Council Votes to Support Motion on Plastic Solutions Campaign’ http://www.universitytimes.ie/2017/10/tcdsu-council-votes-to-support-motion-on-plastic-solutions-campaign/ (Retrieved 18/12/17); University Times, ‘After Vote, TCDSU to Lobby Against Fee Increase for Pharmacy Students’ http://www.universitytimes.ie/2017/03/after-vote-tcdsu-to-lobby-against-fee-increase-for-pharmacy-students/ (Retrieved 18/12/17).

[18] TCD Student Partnership Policy, 6; Ibid, at 19.

[19] [1973] IR 121.

[20] Education (Freedom of Association Act) Amendment Act 2011, s4.

[21] University Times, ‘Amid Increasing Encroachments on Their Freedoms, Students’ Unions Seek to Legislate for Independence’ http://www.universitytimes.ie/2017/04/amid-increasing-encroachments-on-their-freedoms-students-unions-seek-to-legislate-for-their-independence/ – (Retrieved 18/12/17).

 

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