Freedom of association protections give employees and contractors the right to choose whether or not to join a union or industrial association.
It also offers protection from discrimination or victimisation due to membership or non-membership of a union or employer association
These rights are enshrined in the Fair Work Act 2009 (FW Act) and the Building and Construction Industry Improvement Act 2005 (BCII Act).
What conduct is prohibited under the BCII Act?
The BCII Act and FW Act prohibit several types of conduct that infringe freedom of association rights. Additionally, it is often illegal to simply threaten to engage in prohibited conduct. Likewise, it is illegal to encourage or incite another person to engage in prohibited conduct.
Prohibited conduct under the BCII Act includes:
- coercing a person to, or not to, employ, engage, designate, or allocate responsibilities to a building employee or contractor. For example, a union official threatens to shut down a site unless a subcontractor hires a certain unionised contractor
- coercing or undue pressuring of a person into making, varying, terminating, or lengthening a workplace agreement
- coercing a person into nominating a superannuation fund applying to building employees
- discriminating against a person because they are covered/not covered by a particular industrial instrument. For example, a head contractor cuts back the work to be done by a subcontractor because they are using independent contractors.
What conduct is prohibited under the FW Act?
Under the FW Act it is unlawful for a person to take or threaten adverse action because a person is or is not:
- a member of a union
- engaging in industrial activity – this includes participating in industrial action; joining or leaving a union and paying strike pay
- exercising a workplace right – this includes activities such as seeking correct entitlements under an award or agreement, or an industrial law; commencing or participating in court proceedings; making an inquiry in relation to employment; or complaining to a workplace body.
Adverse action covers activities such as dismissal, terminating a contract, refusing to employ or engage a person, discrimination and organising or taking industrial action.
What are the maximum penalties?
- Under the BCII Act, up to $22,000 for individuals and up to $110,000 for a body corporate. A court may order compensation to be paid or that the conduct cease
Under the FW Act, up to $6600 for individuals and up to $33,000 for a body corporate. A court may award compensation, issue an injunction to stop the conduct or order that a building industry participant be reinstated.