Freedom of association

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.

Workplace rights regarding freedom of association are protected under the Fair Work Act 2009 (FW Act). For example, it is unlawful to take or threaten adverse action against a person for:

  • being or not being a member of a union or employer association
  • not engaging in industrial action
  • choosing to be represented by a union, or choosing to not be represented by a union.

What is ‘adverse action’?

Adverse action may include dismissal of an employee and a range of other actions. This may also include prejudicing an employee or independent contractor, or organising industrial action against another person. Adverse action is defined in section 342 of the FW Act.

For example:

  • terminating the employment of an employee
  • refusing to employ someone
  • changing a person’s job to their detriment
  • treating someone differently for discriminatory reasons.

The FW Act sets out when a person takes adverse action against another person.

It includes action taken by:

  • employers against employees or prospective employees
  • employees against employers
  • industrial associations against employers, employees, contractors

Contraventions of the FW Act may result in a court ordering:

  • penalties of up to $10,800 for an individual and up to $54,000 for a body corporate
  • compensation for loss suffered by a person as a result of the contravention
  • injunctions to stop or prevent the conduct
  • reinstatement of a person.

 

Need more information?

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