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. A union or an employer may be breaking the law if they put pressure on workers 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 FW Act. For example, it's 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, or to not be represented, by a union.

What is 'adverse action'?

Adverse action can be many things, including firing an employee from their job. It may also include prejudicing an employee or independent contractor, altering their position to their prejudice or organising industrial action. Adverse action is defined in section 342 of the FW Act.

Examples of adverse action include:

  • firing 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 that adverse action against another person occurs in various circumstances including by:

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

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

  • penalties of up to $13,320 for an individual and up to $66,600 for a body corporate
  • compensation for loss suffered by a person as a result of the breach
  • court orders to stop or prevent the actions
  • re-employment of a person.

Example: Adverse action

Raj is working on a large commercial project and has just finished induction led by the head contractor. As the induction ends, the site union delegate enters the room and asks each worker if they are members of the union. Raj advises the union official that he is not a member of the union. The union delegate hands Raj a union membership form and tells him that the project is a ‘union site’ and that he has to join the union if he wants to work on the site. Raj isn’t sure what to do.

Everyone has the right to be or not to be a member of the union. This is referred to as freedom of association. It is unlawful to take ‘adverse action’ against a person for exercising their right to freedom of association. Raj should contact the ABCC for further information.

Read more about adverse action.