Federal Court rules displaying union materials breaches Building Code

Federal Court rules displaying union materials breaches Building Code

In what can only be regarded as a significant win for the building industry watchdog, the Australian Building and Construction Commission (ABCC), the Federal Court has rejected an application by construction giant LendLease that allowing the display of union materials on site was not a contravention of the Building and Construction Industry (Improving Productivity) Act 2016.

LendLease was contesting a Compliance Notice that an ABCC Inspector had issued during the construction of the Technology, Education and Design Building (TED) at Monash University in Melbourne. As is typical of construction sites of that size, crib huts are provided to allow workers to eat meals and consume drinks during meal breaks. When an inspector visited the site on Wednesday 6 November 2019, the walls of some of the crib huts were adorned with posters or other notices that, to varying degrees, bore the logos, mottos or indicia of various construction unions, including the CFMMEU.

In addition, LendLease maintained at least two tower cranes on the project, one of which had the flag known as the ‘Eureka Flag’ attached to it.

The Compliance Notice, issued by the ABCC dated 29 November 2019, alleged that LendLease had contravened s 13(2)(j) of the Code for the Tendering and Performance of Building Work 2016 (the Building Code) by failing to prohibit the display of various material that bore the logos, mottos or indicia of building industry associations, including the CFMMEU.

In the determination of Federal Court Justice John Snaden, “Properly construed, s 13(2)(j) of the Building Code prohibits (or requires the effective prohibition of) the display of the kinds of material to which the Compliance Notice referred”.

Justice Snaden highlighted the following provision of the Building Code:

              (j)           building association logos, mottos or indicia are not applied to

                             clothing, property or equipment supplied by, or which provision

                             as made for by, the employer or any other conduct which implies

                             that membership of a building association is anything other than

                             an individual choice for each employee.

He further noted, “It is plain from those passages that the Building Code was designed to prevent – that is, to require that code-covered entities adopt practices to ensure against – the application per se of building association logos, mottos or indicia to relevant clothing, property or equipment”.

Justice Snaden rejected various arguments proposed by LendLease and, at times, the CFMMEU, including that the construction giant could not police the display of materials, that the Compliance  Notice had been unclear, and that prohibiting the display of materials was constitutionally invalid.

Again, as Justice Snaden noted,

“the better way to read s 123(j) of the Building Code is as a provision in two parts. It serves, first, to require that code-covered entities take steps to ensure that building association logos, mottos or indicia are not applied to project-supplied property or equipment; and second, to require that equivalent steps be taken to ensure against other conduct that implies that membership of a building association is anything other than a matter of individual choice”.

In dismissing the application, Justice Snaden noted, “There is no basis upon which to set aside the Compliance Notice, nor otherwise to grant declaratory relief ancillary to that cause”.

The ABCC did not seek costs against LendLease; however, they are seeking costs against the CFMMEU.

Workforce Advisory anticipates an application to appeal this decision given the proximity of the Federal election.

Lendlease Building Contractors Pty Limited v Australian Building and Construction Commissioner (No 2) [2022] FCA 192

For queries about right of entry, posting of union materials, or other employment questions, please contact Dean Cameron at Workforce Advisory Lawyers – We Know Employment Law on 1300 WAL LAW, 0417 622 178 or via email to dean.cameron@workforceadvisory.com.au

Disclaimer: This information is provided as general advice on workplace relations and employment law. It does not constitute legal advice, and it is always advisable to seek further information regarding specific workplace issues. Liability limited by a scheme approved under professional standards legislation.

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