Freedom of Association – logos, mottos and indicia

The Australian Building and Construction Commission (ABCC) released new guidance material recently which provides information on the differences between the Building Code 2013 (2013 Code) and the Code for Tendering and Performance of Building Work 2016 (2016 Code) with respect to freedom of association.

While both the 2013 Code and 2016 Code provide that a code covered entity, such as a construction company, must avoid conduct that may imply that membership to a building association, such as a union, is anything other than a personal choice, the 2016 Code places more rigorous requirements on code covered entities regarding freedom of association. The ABCC appears to be taking a more stringent approach with respect to the display of building association logos and mottos, such as union posters.

Under the 2013 Code, the display of logos and mottos had to be “significant” on a site for a code covered entity to be in breach of the code. If a code covered entity had voluminous amounts of signage which stated:

• “100% Union”;
• “Union Site”;
• “No Ticket, No Start”;
• “scab”, “rat”, “grub” or similar.

This may breach the 2013 Code, because it may give a person the impression that, in order to work on the site, they must be a member of a union.

Under the 2013 Code, a code covered entity was required to develop and implement policies to ensure that people had the freedom to choose to:

• become, or not become, a member of an industry association;
• be represented, or not represented, by an industry association; and
• participate, or not participate, in lawful industrial activities.

The 2016 Code provides for the requirements listed above as well as additional responsibilities with respect to building association material. This means that under the 2016 Code, a code covered entity must ensure that building association logos, mottos or indicia are not on company supplied clothing, property or equipment as it could imply, in order to work on the site, a person must be a member of a building association.

The guidance material states that a logo, motto and indicia can include:

• symbols or trademarks that identify an organisation;
• an organisation’s name in its recognisable format;
• images generally attributed to, or associated with an organisation such as the Eureka Stockade flag;
• expressions or phrases that are associated with an organisation;
• signs;
• markings; and
• indications.

The guidance material defines clothing, property or equipment as any equipment that the employer provides or pays for to be used on-site. This may include:

• personal protective equipment (e.g. hardhat);
• uniforms;
• tools;
• vehicles;
• mobile phones;
• cranes;
• scaffolding;
• first aid boxes;
• notice boards; and
• on-site amenities, for example crib rooms, fences and bathrooms.

This may mean, for example, that if a union sticker is found on a company purchased hard hat, or a union pamphlet is placed on a table in a crib room, the code covered entity could potentially be in breach of the 2016 Code. Unlike the 2013 Code, where a code covered entity may be in breach if there large amounts of union material, under the 2016 Code if one of the items outlined above is found on the equipment, clothing or property provided by or paid for by the code covered entity, there may be a breach.

If a code covered entity has been found to be in breach of the 2016 Code, it can be penalised. Penalties can include being excluded from submitting expressions of interest, tendering for or being awarded Commonwealth funded building work during a nominated exclusion period.

Gadens can assist companies covered by the 2013 or 2016 Codes to develop and implement policies, processes and training to ensure all persons working on the code covered site understand their obligations under the relevant building codes.

Should you wish to discuss the content of this article please contact Partner Jonathon Hadley on +61 7 3231 1653 or email him on Jonathon.Hadley@gadens.com.