The Federal Court has today clarified the legal interpretation of section 13(2)(j) of the Code for the Tendering and Performance of Building Work 2016. The Court has confirmed that union logos, mottos or indicia, including union flags, cannot be attached to property, clothing or equipment supplied by a Code covered employer on building sites.
Construction company Lendlease Building Contractors Pty Ltd had initiated proceedings in the Federal Court arguing its interpretation of section 13(2)(j) only prohibited union logos mottos or indicia being applied to the employer’s property where that material implied that union membership was not a free choice for each employee.
The CFMMEU intervened in the proceedings on the basis that section 13(2)(j), if interpreted in the manner proposed by the ABCC, infringed the freedom of political communication implied by the Australian Constitution and was therefore invalid.
Both Lendlease’s and the CFMMEU’s arguments advanced to challenge the compliance notice issued by the ABCC were rejected by the Court.
The Court considered the following examples of union logos, mottos or indicia to breach section 13(2)(j) of the Code when it was applied to clothing, property or equipment supplied or provided for by Lendlease:
Posters depicting the CFMMEU, ETU, PTEU or AMWU logos
Posters variously depicting the phrases “We support John Setka”, “Be paid up and proud”, “United we stand” and “When injustice becomes law, resistance becomes duty”
Posters or flags depicting the Eureka Stockade symbol.
The Court ruling has confirmed that all of this material in the manner it appeared on site amounts to breaches of the Code.
In considering the CFMMEU’s constitutional arguments, the Court observed:
“It is not in doubt that the construction industry in Australia has not had a happy history—at least not over the course of this century—of compliance with freedom of association laws. …[S]enior counsel for the CFMMEU very properly acknowledged …. that the “record is clear” that, although some within the ranks of building associations have sought to maximise union membership by means of lawful persuasion, others have preferred “a different approach”.
…
On any view, [s 13(2)(j) of the Building Code] has been incorporated to address a significant, cultural phenomenon within the construction industry that has endured for a long time, notwithstanding the very considerable efforts—legislative, executive and judicial—that have been engaged to address it.”
Commissioner Stephen McBurney said the Court’s decision provided clarity for all building industry participants about the interpretation of the Code’s provisions.
“The Court’s decision affirms that the application of any building association logo, motto or indicia to clothing, property or equipment supplied or provided for by the employer, is a breach of section 13(2)(j) of the Code.”
“Section 13(2)(j) is an important requirement for code covered construction companies. It reinforces the fundamental principle of freedom of association enshrined in the Fair Work Act. For building and construction workers, their decision on whether or not they join a union must be a matter of free choice,” Mr McBurney said.