Freedom of association protections enshrine a right for employees and contractors to choose to join or not to join a union or industrial association.
Freedom of association is protected by the Workplace Relations Act 1996 (WR Act), which applies to all employers and employees. In response to unique issues for freedom of association in the building and construction industry, the Building and Construction Industry Improvement Act 2005 (BCII Act) has special provisions to reinforce the principle in this industry.
In summary, freedom of association gives employers, employees and independent contractors:
- freedom to choose whether or not to join a union or employer association
- protection from discrimination or victimisation due to membership or non-membership of a union or employer association
- entitlements to compensation when freedom of association rights are infringed
- penalties and deterrents for infringements of a person’s freedom of association rights.
What sort of conduct is a breach of the right of freedom of association?
The WR Act and BCII 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.
BCII Act - Prohibited conduct and penalties
Prohibited conduct under the BCII Act includes:
- the coercion of 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
- the coercion or undue pressuring of a person into making, varying, terminating, or lengthening a workplace agreement
- the coercion of a person into nominating a superannuation fund applying to building employees
- discrimination 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.
Some of the conduct listed is not prohibited if it occurs during an agreement bargaining period i.e. the conduct is protected action.
For contraventions of BCII Act provisions the Federal Court can make appropriate orders, including:
- penalties of up to $22,000 for an individual, and up to $110,000 for a body corporate
- awards of compensation for damage suffered by an injured party
- orders that the conduct be discontinued or prevented from taking place.
WR Act - Prohibited conduct and penalties
Prohibited conduct under the WR Act includes:
- misrepresenting obligations to pay union bargaining services fees, join a union or disclose union membership status
- dismissal or any other action detrimental to an employee or employer because they are or are not a member of a union or employer organisation
- discrimination because an employee or employer is party to a particular type of industrial instrument, such as a workplace agreement or award
- termination or any other action detrimental to an independent contractor because they are or are not a member of a union
- victimisation of an employee on the basis of not participating in industrial action
- compulsory unionism or preference for union members
- efforts by employers to have employees cease to hold office in or be members of a union
- the inclusion of a provision in a workplace agreement that is, or permits, prohibited content. A term of an agreement that is prohibited content is void and unenforceable
- industrial action over a person’s membership or non-membership of a union or employer organisation
- cessation of work because of an employer’s participation in industrial proceedings.
For breaches of WR Act provisions, the Federal Court can make appropriate orders, including:
- penalties of up to $6,600, for an individual, and up to $33,000, for a body corporate
- awards of compensation for damages suffered by an employee or independent contractor
- injunctions to stop or prevent the conduct.
You can download a printable version of this fact sheet here:
Freedom of Association in the Building and Construction Industry (PDF - 101KB)
The information contained in this fact sheet is
correct as at 26 March 2008.
This material is for general information only. You should seek legal advice in relation to your particular circumstances. The Australian Government, its employees and agents do not accept any liability for action taken in reliance on this document and disclaim all liability arising from any error or omission. ABN 68 003 725 098
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