Laing O’Rourke recently found itself in a skirmish with construction unions after directing workers to remove stickers of union logos from their hard hats on the Ichthys LNG project site in Darwin.
The direction followed a Fair Work Building Commission audit in February this year which concluded that displaying the stickers constituted “serious breaches” of the freedom of association provisions in the 2013 Building Code.
In defying the direction, the unions argued that removing the offending stickers undermined those same freedom of association provisions and discriminated against their members.
The AMWU stickers read “Financial member of the AMWU” with the relevant date of membership, and another read “Ichthys Project – AMWU” on a picture of a crocodile, and the union argued the words were generic, and were not offensive, unsuitable or a risk to health and safety on site.
When around 130 union members refused to remove the stickers from their hard hats, Laing O’Rourke issued them with written warnings, and dismissed a further three workers on probation for refusing to comply with the direction.
The unions subsequently filed a dispute in the Fair Work Commission, and claimed the company’s actions were in breach of the Laing O’Rourke Construction Australia Pty Ltd Ichthys Onshore Construction Greenfields Agreement. In determining the dispute, Commissioner Simpson held that the relevant clauses in the Enterprise Agreement were vague and were designed to encourage conduct in line with the objectives for the project, but were not enforceable obligations. As such, the Commissioner found he did not have power to deal with the dispute.
The Commission’s decision did not set new law on interpreting Enterprise Agreements. While it follows a separate decision involving Alcoa employees who were banned from wearing union logos on their work shirts, and it does not amount to a green light for employers to discipline employees for wearing visible union logos, slogans or images. As we understand it, the AMWU plan to file general protections claims for their members who were dismissed – which may end up in the Federal Courts if it is not resolved.
Employers should think carefully, and then plan out any direction to employees to ban wearing union stickers, clothing or displaying any union logos or the like. For example, a fair policy that focuses on what is safe, and what is consistent with the employer’s brand and business is a base starting point for consulting with a workforce about similar matters.