Freedom of Association – Logos, Mottos and Indicia
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 must avoid conduct that implies that membership of a building association is anything other than a matter of individual choice. The 2016 Code places more stringent 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 participant 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.
Examples of materials that breach the freedom of association requirements of the 2013 Code
A building contractor or building industry participant must not allow material to be displayed that may give an impression that a person 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.
Further, 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, may be a breach of the 2013 Code depending on the circumstances. The central consideration is whether a significant display of materials implies that membership of the association is anything other than a matter of individual choice.
The presence of building association logos on posters or other material may not breach the 2013 Code. For example, the display of RDO calendars that bear a building association logo would not breach the 2013 Code.
Additional requirements under the 2016 Code
In addition to all of the requirements of the 2013 Code listed above, code covered entities have additional responsibilities under the 2016 Code which are more stringent than the 2013 Code in respect of 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 that people are all of the following:
- 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.
Examples of materials that breach the freedom of association requirements of the 2016 Code
A code covered entity must ensure, among other things, 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 anything other than an individual choice for each employee.
‘Logos, mottos and indicia’ can 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 attributed to, or 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. Any of the following may be examples of such clothing, property and equipment:
- personal protective equipment
- mobile phones
- first aid boxes
- notice boards
- amenities 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 affixed to the clothing, property or equipment.
These requirements also apply in circumstances where an employer reimburses employees for the cost of purchasing clothing or personal protective equipment or an allowance is provided by the employer for this purpose.
Unlike the requirements in the 2013 Code, the display of building association logos, mottos or indicia does not have to be voluminous or large scale. The presence of one of these items on equipment supplied by, or for which provision is made, 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, under which the second entity will supply such equipment.