Newly instated Australian Building and Construction Commission boss Stephen McBurney isn’t going any softer on unions than his predecessor Nigel Hadgkiss.

The ABCC — who got a new boss after it was revealed Hadgkiss had breached the Fair Work Act by misrepresenting the law for over two years — has clarified a directive, warning employers may not be able to apply for government tenders if their employees display the “logos, mottos or indicia” of unions: 

The 2016 Code places more stringent requirements regarding freedom of association on code covered entities than the 2013 Code … ‘Logos, mottos and indicia’ can include any of the following: images generally attributed to, or associated with an organisation, such as the iconic symbol of the five white stars and white cross on the Eureka Stockade flag phrases that express an organisation’s guiding principle.

Does this directive breach the constitution?

It has been found by the High Court that there is an implied right to freedom of political communication in Australia’s constitution and the government can’t make laws to curtail that. In 1992, the High Court construed the constitutional requirement requirement for representative democracy meant it was essential that the Australian people be able freely discuss matters relating to the government. Would the rule force an employer to breach the constitution?

Professor of constitutional law at Sydney University, Anne Twomey, told Crikey the implied freedom of political freedom was not a personal right.

“It is a limitation on the legislative and executive power of the Commonwealth,” she said. “So the issue is not what an employer does, the issue is whether the law in question breaches the implied freedom.

As a result, the constitutional validity of the ABCC directive is affected by legal status of the directive itself, says professor of constitutional law at the University of Melbourne, Adrienne Stone. 

“You could certainly say that implementing an enforceable law limiting the display of flags and logos without a good reason would have serious constitutional questions around it,” she said. “Of course, if it’s not in itself an enforceable law, that raises other questions — so you really have to ask the ABCC why that rule is being brought in.”

Why was the rule brought in?

On the the ABCC website, the justification for the logos, mottos or indicia section of the code is that it preserves freedom of association.

A spokesperson for the ABCC told Crikey that “the ABCC is responsible for implementing the 2013 and 2016 Building Codes including the provisions that seek to ensure everyone has the right to be or not be a member of a union. The 2016 Code provides more detailed freedom of association requirements.”

“These have been in place since the Code began in December 2016,” the spokesperson said.

“It would seem that the law permits the making of a ‘code’ and the code provides that if the flag is displayed in certain circumstances, then the relevant employer cannot apply for government tenders,” Twomey said.

“This is different from prohibiting the display of the flag.  The question would then be whether the law, which permits the making of a code in such a form, burdens the implied freedom of political communication.”

“If there is such a burden, then the next question as recently altered by the High Court in the Bob Brown case is whether the purpose of the law is legitimate in the sense that it is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.” 

Twomey said while there may be a constitutional issue, “because it is not an outright prohibition on the communication, it is a more difficult case to argue”.

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Peter Fray
Peter Fray
Editor-in-chief of Crikey