Freedom of association
To help stakeholders to understand their obligations under the Building Code 2016, the ABCC has developed a table which summarises the requirements relating to freedom of association. The table can be found below. The requirements apply to contractors who are code covered entities.
Summary of Freedom of Association objectives and prohibitions
|Item||Prohibition/Requirement||Building Code 2016|
A code covered entity must not engage in conduct, or implement a procedure or practice (howsoever described) in respect of building work which has, or is likely to have, any of the effects described in subsections 11(1) or (3) if the conduct, practice or procedure was contained in an enterprise agreement. This includes arrangements or practices that are inconsistent with freedom of association requirements set out in section 13.
Note exception in section 11(5) which clarifies that this general prohibition does not apply if the conduct etc is expressly permitted or required by a Commonwealth industrial instrument (enterprise agreement).
See section 11 for content that is not permitted to be in enterprise agreements made on or after 2 December 2016.
Contractors must adopt and implement policies and practices that: ensure that persons are:
(i) free to become, or not become, members of a building association; and
|Section 13 (1)|
Contractors must ensure that personal information is dealt with in accordance with the Privacy Act 1988 and the Fair Work Act 2009.
Contractors 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 (or relevant enterprise agreement).
Section 13 (2) (a)
Contractors must ensure that ‘no ticket, no start’ signage or similar, is not displayed, that ‘show card’ days do not occur, and that no other conduct occurs which implies that union membership is anything other than a matter for individual choice, including encouraging or discouraging a person from becoming, or remaining, a member of a building association.
Contractors must ensure that practices that are not authorised by law which require, directly or indirectly, a person to disclose whether or not they are a member of a building association, are not engaged in.
Section 13 (2) (b) (d) (g) (j)
Contractors 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). See section 11 for prohibited content in enterprise agreements made on or after 2 December 2016.
Site management is responsible for undertaking inductions processes which are a non-delegable duty. Contractors must also ensure ‘secondary’ inductions are not conducted by representatives of building associations.
Section 13 (2) (p)
Contractors must ensure persons are not discriminated against or disadvantaged in respect of benefits in the workplace because they are, or are not, members of a building association.
Contractors must ensure that elected employee representatives are not discriminated against or disadvantaged.
Section 13 (1) (a) (iv)
Contractors must ensure that signs that seek to vilify or harass employees who participate, or do not participate, in industrial activities are not displayed.
|Section 13 (2) (c)|
|Freedom of choice||
Employees must be provided freedom of choice in deciding whether to be represented in grievance or dispute procedures (whether or not pursuant to an enterprise agreement), and, if so, by whom.
|Section 13 (2) (o)|
Contractors must not use any form which requires an employee to identify their union status, nor should they require that subcontractors identify the union status of their employees or subcontractors.
|Section 13 (2) (f)|
|Refusal to employ or terminate||
Contractors must not refuse to employ or engage an individual or terminate an employee or subcontractor because of their union status.
|Section 13 (2) (h) (i)|
|Reasonable request by delegate to represent||
Contractors must not refuse a reasonable request from a workplace delegate to represent employees in relation to grievances and disputes or discussions with a member of a building association.
|Section 13 (2) (k) (o)|
|Non-working shop steward||
Contractors must not employ a non-working shop steward or job delegate.
Contractors must not 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 union.
|Section 13 (2) (l) (m)|
|Logos and indicia||
Contractors must ensure that building association logos, mottos or other indicia are not applied to the employer’s property or equipment, or to clothing supplied or provided for by the employer. See section 11 for content that is not permitted to be in enterprise agreements made on or after 2 December 2016.
|Section 13 (2) (j)|
Contractors must ensure that individuals are not 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.
|Section 13 (2) (n)|
Need more information?
For further information, advice or assistance please contact the ABCC at 1800 003 338 or firstname.lastname@example.org.