ABCC Update – Mythbusting: The Truth about Flags, Logos, Mottos and Indicia

The following information has been provided by the ABCC.

Is the Eureka flag banned?

No, the Eureka flag is not banned.

However, Code covered contractors must not display union logos, mottos or indicia (which includes the Eureka flag), on any clothing property or equipment they supply or provide.

The ABCC or the Code does not restrict workers from applying logos, mottos or indicia on their own clothing or equipment. The Code only applies to contractors who have tendered for Commonwealth funded building work since the 2nd of December 2016.

It does not impose requirements on contractors who have not tendered for Commonwealth funded work.

It does not impose requirements directly on to construction workers or unions.

How many workers have been fined for displaying union stickers or flags?

Zero.

No worker has been fined for wearing stickers on hard hats or flying the Eureka flag at building sites. The Code does not include any mechanism for the imposition of fines and it does not directly regulate workers.

The ABCC or the Code does not restrict workers from applying logos, mottos or indicia on their own clothing or equipment. The Code only applies to Code covered contractors.

How many unions have been fined for displaying union stickers or flags?

Zero.

The Code only applies to Code covered contractors. There is no mechanism for the imposition of fines on unions for displaying their own logo.

Can I display a Eureka flag sticker on my own car or hardhat?

The Code only applies to Code covered contractors. It does not impose requirements directly on to construction workers or unions.

Section 13(2)(j) of the Code does not restrict workers from applying logos, mottos or indicia on their own clothing or equipment.

Why did the ABCC take the union and Lendlease to court?

The ABCC did not take the union or Lendlease to court. The matter was initiated by Lendlease on 31 January 2020 seeking a review of a compliance notice issued by the ABCC.

Lendlease disputed that it had contravened section 13(2)(j) of the Code as set out in the ABCC’s compliance notice. Lendlease sought to have the compliance notice quashed and a declaration made that they have not contravened the Code.

On 3 March 2020, the Federal Court granted the CFMMEU’s application for leave to intervene in the matter. March 2022 edition

Why can’t the Eureka flag be flown on building and construction sites?

The Code seeks to protect an employee’s right to freedom of association – your right to decide whether or not you want to join a union.

Although the Eureka symbol has a long history outside of construction, it is used extensively by unions in branding, logos, clothing and publications and at union rallies and demonstrations and has become a union logo, motto or indicia.

The Federal Court’s decision in the Lendlease matter confirmed that union logos, mottos or indicia, which may include the Eureka flag, cannot be attached to property, clothing or equipment supplied by an employer on building sites where the employer is subject to the Code.

This is because the display of signs union logos, mottos or indicia on clothing, property or equipment provided for by the employer can give workers the strong impression that not only is union membership compulsory for anyone that wishes to work on the particular site, but that relevant employers support this position.

Why is freedom of association important?

The Fair Work Act 2009 protects your right to join or not join a union.

There have been several cases where workers have been told they cannot work on a site unless they are a union member and pay membership fees before they can start work. Please refer to the Sunshine Plaza Shopping Centre case as a recent example.