Freedom of association in the building and construction industry

Freedom of association protections give employees and contractors the right to choose whether or not to join a union or industrial association.

Freedom of association is protected by the Fair Work Act 2009 (FW Act), which applies to all employers and employees.

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 can be imposed for infringements of a person’s freedom of association rights.

Conduct that breaches the right of freedom of association

The FW Act prohibits several types of conduct that infringes freedom of association rights. Additionally, it is often unlawful to simply threaten to engage in prohibited conduct. Likewise, it is unlawful to encourage or incite another person to engage in prohibited conduct.

Fair Work Act — Protections and penalties

Under the FW Act it is unlawful for a person to take or threaten to take adverse action against another person because they engaged in or proposed to engage in an industrial activity. Industrial activities include:

  • becoming or not becoming a member of an industrial association (such as union or employer association);
  • representing or advancing the views, claims or interests of an industrial association;
  • taking part in industrial action;
  • refusing to take part in industrial action; or
  • refusing to pay strike pay.

It is also unlawful for a person to take adverse action against another person because they have a workplace right or propose to exercise or not to exercise a workplace right. Workplace rights include:

  • entitlements under an award or enterprise agreement, or an industrial law;
  • commencing or participating in court proceedings;
  • making an inquiry in relation to employment; or complaining to a workplace body.

Adverse action includes activities such as dismissal, terminating a contract, refusing to employ or engage a person, discrimination and organising or taking industrial action.

For contraventions of the FW Act, the Federal Court or the Federal Circuit Court can make appropriate orders, including:

  • penalties of up to $12,600 for an individual and up to $63,000 for a body corporate;
  • awards of compensation for damages suffered by an employee or independent contractor;
  • injunctions to stop or prevent the conduct; or
  • reinstatement of a person.

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Need more information?

For further information, advice or assistance please contact the ABCC at 1800 003 338 or enquiry [at] abcc.gov.au.