What is freedom of association?
All employees and contractors have the right to join or not join a union. This is called freedom of association. It can be unlawful for workers to be pressured by a union or by their employer to make a decision about joining, not joining or leaving a union.
Freedom of association also extends to employers, allowing them to choose whether or not to join an employer association.
Freedom of association is protected under the. For example, it’s unlawful to take or threaten against a person for:
- being or not being a member of a union or employer association
- not engaging in industrial action or other specified industrial activities
- choosing to be represented by a union, or choosing to not be represented by a union.
Doescontain more freedom of association requirements than the Fair Work Act?
Yes. The Code requiresto have policies in place to protect freedom of association on building and construction work sites.
Code covered entities must avoid conduct that implies that membership of a building association is anything other than a matter of individual choice.
The responsibilities under the Code are more stringent than the.
Does a contractor need to have a freedom of association policy in place?
Yes, code covered entities must adopt and implement policies and practices that ensure that persons are:
- free to become, or not become, members of building associations
- free to be represented, or not represented, by building associations
- free to participate , or not participate in, lawful industrial activities
- not discriminated against in respect of benefits in the workplace because they are, or are not, members of a building association.
Can personal information be disclosed?
Code covered entities must ensure that personal information is dealt with in accordance with the Privacy Act 1988 and the Fair Work Act 2009.
Code covered entities may not provide the names and details of those that they propose to engage or employ to third parties, other than in strict compliance with the law.
Can you ask about building association membership?
Code covered entities must ensure that practices are not engaged in that aren’t authorised by law and which require—directly or indirectly—a person to disclose whether or not they are a member of a building association.
Code covered entities must not engage in conduct that directly or indirectly requires a person to:
- encourage, or discourage, a person from becoming, or remaining, a member of a building association
- indicate support, or lack of support, for persons being members of building associations or any other measures that suggests that membership is anything other than a matter for individual choice.
Do freedom of association rules apply to forms?
Yes—contractors mustn't use any form that requires an employee to identify their building association membership status, nor should they require that subcontractors identify the building association membership status of their employees or subcontractors.
Can you display signs on site?
Code covered entities must ensure that:
- ‘no ticket, no start’ signage or similar is not displayed, that such arrangements are not implemented and that ‘show card’ days do not occur
- signs intended to vilify or harass employees who participate, or do not participate, in industrial activities are not displayed
- building association logos, mottos or indicia are not applied to clothing, property or equipment supplied by, or which provision is made for by, the employer or any other conduct which implies that membership of a building association is anything other than an individual choice for each employee.
The Federal Court clarified this requirement in Lendlease Building Contractors Pty Ltd v Australian Building and Construction Commissioner (No 2)  FCA 192 delivered on 11 March 2022. This requirement is to be read as comprising two parts. That is, a code covered entity must ensure that:
- building association logos, mottos or indicia are not applied to clothing, property or equipment supplied by, or which provision is made for by, the employer; and
- it does not engage in any other conduct which implies that membership of a building association is anything other than an individual choice for each employee.
Who can undertake inductions?
Code covered entities must ensure that officials, delegates or other representatives of a building association do not undertake or administer induction processes (unless there is a requirement to do so in a relevant enterprise agreement).
Site management is responsible for undertaking induction processes; this duty can’t be delegated to officials, delegates or other representatives of a building association.
Code covered entities must also ensure ‘secondary’ inductions aren’t conducted by representatives of building associations (unless there is a requirement to do so in an enterprise agreement).
What are the rules about discrimination?
Code covered entities must ensure that people aren’t discriminated against or disadvantaged in respect of benefits in the workplace because they are, or are not, members of a building association.
Code covered entities must also ensure that elected employee representatives are not discriminated against or disadvantaged.
Can employees decide who represents them?
Yes—employees must be provided freedom of choice to decide whether to be represented in grievance or dispute procedures, regardless of whether it’s pursuant to an enterprise agreement. They must also be provided the freedom to decide who will represent them.
Does a workplace delegate have the right to represent an employee or worker?
Yes—a code covered entity mustn’t refuse a reasonable request from a workplace delegate to represent their employee in relation to a grievance, a dispute or a discussion with a member of a building association.
Does freedom of association extend to hiring and firing?
Yes— code covered entities mustn’t refuse to employ or engage an individual, or terminate an employee’s employment, because of their union status.
Does freedom of association extend to engagement of subcontractors?
Yes - code covered entities must not terminate a subcontractor’s engagement because of their union status.
Can a contractor employ a non-working shop steward?
No—code covered entities mustn’t employ a non-working shop steward or job delegate.
Further, code covered entities mustn't permit the imposition, or attempted imposition, of a requirement for any employer on site to employ a non-working shop steward or delegate or to hire an individual nominated by a building association.
What if a worker is asked to pay a bargaining fee?
Code covered entities must ensure that individuals aren’t required to pay a ‘bargaining fee’ (howsoever described) to a building association of which the individual is not a member, in respect of services provided by the association.
- Freedom of association in the building and construction industry factsheet
- Freedom of association – Logos, mottos and indicia factsheet