All employees and contractors have the right to join or not join a building association, whether a union or employer body. This is called freedom of association. Everyone has the right to freedom of association under the law.
The Building Code 2013 (2013 Code) and the Code for the Tendering and Performance of Building Work 2016 (2016 Code) require code covered entities to protect freedom of association on building and construction work sites.
Under the 2013 and 2016 Codes, code covered entities are not allowed to act in a way which suggests that joining a building association is not a person’s choice. The 2016 Code places stricter requirements regarding freedom of association on code covered entities than the 2013 Code.
Requirements under the 2013 Code
Under the 2013 Code, a building contractor or building industry participant1 must protect freedom of association by adopting policies that are consistent with applicable industrial law. Policies must also ensure that people are free to do all the following:
- become, or not become, members of industrial associations
- be represented, or not represented, by industrial associations
- participate, or not participate, in lawful industrial activities.
A building contractor or building industry participant must not allow material to be displayed that could suggest that you must be a member of a building association to work on the project. The following are all examples of words or phrases on posters or signage that breach the 2013 Code:
- 100% Union
- union site
- no ticket, no start
- wanted – freeloaders on building sites
- no freeloaders
- ‘scab’, ‘rat’, ‘grub’ or similar to refer to employees who choose not to participate in industrial activities, such as joining a union or being represented by a union.
If there is a significant display of material that may give the impression that a person must be a member of a building association to work on a project, it may be a breach of the 2013 Code. The main consideration is whether the display suggests membership of the building association is not a personal choice.
The presence of building association logos on posters or other material may not breach the 2013 Code. For example, the display of rostered day off (RDO) calendars that bear a building association logo would not breach the 2013 Code.
Additional requirements under the 2016 code
As well as all of the requirements of the 2013 Code listed above, code covered entities have more responsibilities under the 2016 Code that are stricter than the 2013 Code in regard to building association logos, mottos or indicia. Code covered entities must protect freedom of association in respect of building work by adopting and implementing policies and practices that ensure people are all of the following:
- free to choose to become members of building associations
- free to choose to be represented by building associations
- free to choose to participate in lawful industrial activities
- not discriminated against in the workplace because they are, or are not, members of a building association.
What displays are breaches of the freedom of association requirements of the 2016 Code?
A code covered entity2 must ensure that building association logos, mottos or indicia are not applied to clothing, property or equipment supplied by, or for which provision is made by, the employer or any other conduct which implies that membership of a building association is not a personal choice for any employee.
‘Logos, mottos and indicia’ which are prohibited may include any of the following:
- symbols or trademarks that identify an organisation
- an organisation’s name in its standard, recognisable font, size, style and colour
- images generally associated with an organisation, such as the iconic symbol of the five white stars and white cross on the Eureka Stockade flag
- phrases that express an organisation’s guiding principle
‘Clothing, property or equipment supplied by, or which provision is made for by, the employer’ means any equipment that the employer provides or pays for, for on-site use. Here are some examples of such clothing, property and equipment:
- personal protective equipment
- mobile phones
- first aid boxes
- notice boards
- facilities on-site including lunch rooms, crib rooms, bathrooms and all site walls, fences or gates around the site.
Logos, mottos or indicia are considered to be ‘applied’ to clothing, property or equipment if they are displayed either:
- directly on the clothing, property or equipment
- on flags, stickers, posters, leaflets or anything else that is attached to the clothing, property or equipment.
These requirements also apply in circumstances where an employer reimburses employees the cost of buying clothing or personal protective equipment or gives an allowance for this purpose.
Unlike the requirements in the 2013 Code, the display of building association logos, mottos or indicia does not have to be large scale. The presence of one of these items on equipment supplied by, or for which provision is made for by, the employer is a breach of the 2016 Code.
This aspect of the 2016 Code also applies when the code covered entity arranges for the supply of equipment. For example, where a code covered entity enters into a contract with another entity for crane or scaffolding equipment, where the second entity would supply the equipment.
Need more information?
Contact us directly for more information or advice about your individual circumstances:
- Hotline: 1800 003 338
- Email: enquiry [at] abcc.gov.au
- Website: www.abcc.gov.au
1To learn more about what defines a ‘building industry participant’ and ‘building work’ please refer to the ‘Our jurisdiction’ fact sheet, available at abcc.gov.au/resources.
2A code covered entity is a building contractor or building industry participant that has submitted an expression of interest (EOI) or tender (howsoever described) for Commonwealth funded building work on or after 2 December 2016, and therefore become subject to the 2016 Code. Specific requirements in the 2016 Code apply to code covered entities. Refer to section 34 of the Building and Construction Industry (Improving Productivity) Act 2016, and Section 6 of the 2016 Code.