Australia: Capture the (union) flag! Building contractors stuck between a rock and a hardhat regarding the display of building association insignia on building sites

The Australian Building and Construction Commission (ABCC) has recently released further guidance material in relation to its interpretation of, and likely enforcement approach towards, the freedom of association provision within the Building Code 2013 (Code 2013) and Code for Tendering and Performance of Building Work 2016 (Code 2016).

The freedom of association provisions within both Code 2013 and Code 2016 require building contractors and other building industry participants to adopt policies which ensure that persons are:

  • free to become, or not become, members of industrial associations;
  • free to be represented, or not represented, by industrial associations; and
  • free to participate, or not participate, in lawful industrial activities.

However, the specific requirements with respect to the display of building association logos, mottos and indicia differ between Codes.

Code 2013 requirements

Code 2013 does not expressly deal with the display of building association materials on building sites, except for the prohibition against the display of "no ticket, no start" signs.

However, the ABCC has historically relied upon the general freedom of association obligations to prohibit building contractors and industry participants from allowing displays of building association related material which give the impression that membership is anything other than a personal choice. Examples provided in the ABCC's recently released factsheet Freedom of Association – Logos, mottos and indicia differences between the 2013 and 2016 Codes include the display of signs which provide any of the following:

  • 100% Union;
  • union site;
  • no ticket, no start;
  • wanted – freeloaders on building sites;
  • no freeloaders; and
  • "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.

The factsheet also confirms the ABCC's view that "significant" display of building association related material on a single building site may, in some circumstances, offend the freedom of association provisions of Code 2013.

Code 2016 requirements

In addition to the above requirements, Code 2016 specifically requires that building contractors ensure 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. The factsheet provides that the term "Logos, Mottos and indicia" includes a building association's name in its standard and recognizable font, size, style and colour, as well as any symbols or trademarks that identify the association.

On a plain reading of these requirements, a single offending sticker or sign within a building contractor's worksite may be sufficient to constitute a breach of Code 2016, and could theoretically result in a recommendation that an exclusion sanction be imposed. Given the size and area on which offending material may be fixed on many worksites, ensuring compliance with these obligations may be practically challenging for many building contractors.

The provisions of Code 2016 apply to:

  • building contractors who have submitted an expression of interest or tender for "Commonwealth funded building work" on or after 2 December 2016;
  • in respect of projects for which an expression of interests or tender was called on or after 2 December 2016

Contractors between a rock and a 'hardhat'

The continued display of union related material on worksites is a significant issue for unions, as it is an important aspect of their membership strategy.

The CFMEU has recently issued a letter to a building contractor foreshadowing its intention to "take any action required to maintain [their] member's right to freedom of association", following a request from the ABCC that the contractor remove certain union related flags from its worksites.

Conversely, the financial and reputational implications of breaching either Code have the potential to be significant for building contractors, and may far exceed the penalty for breaching any other applicable industrial law.

Notably, the Minister has previously imposed an exclusion sanction on a national building contractor for reasons that included the display of "no ticket, no start" signs. The ABCC has also previously issued show cause notices alleging breaches of Code 2013 for the display of CFMEU flags and posters.

Accordingly, building contractors should be sure of their position before deciding to either remove, or allow, union materials on their worksites.

What should code-covered entities do?

Building contractors which are covered by either Code should develop and implement effective strategies to identify and deal with offending material. Such strategies should include:

  • Considering which Code applies to each site on which building work is being performed;
  • Ensuring site management is aware of which Code applies and that they are able to effectively identify non-compliant material; and
  • Implementing an effective monitoring protocol to remove non-compliant union material from building sites. This may include regular sweeps of the building site.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Andrew Wheeldon
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