The ABCC will continue to take a strict line against the flying of the Eureka and CFMMEU flags on construction sites, despite the Fair Work Commission finding that it does not breach freedom of association.
Last week, Commissioner Bernie Riordan said in a recommendation that he failed to see how the flying of the flags on a building site would convey to any employee that membership of the CFMMEU was anything but voluntary.
An ABCC spokesperson said yesterday that the construction watchdog was aware of the FWC recommendation.
"The ABCC's responsibilities to ensure compliance with the Building Code are not affected by the recommendation," said the spokesperson.
"We will continue to monitor compliance with all aspects of the Building Code 2016, including the use of building association logos, mottos or indicia."
Early this year, the ABCC published updated guidance on the 2016 Code's obligations regarding logos, mottos or indicia.
Commissioner Riordan's recommendation was made during s739 dispute resolution proceedings involving Watpac Construction Pty Ltd and the CFMMEU in which the ABCC was not a party.
The parties asked the FWC to provide a "without prejudice" recommendation on the meaning of the national construction code, which deals with freedom of association.
The Code says that "building association logos, mottos or indicia" must not be applied to "clothing, property or equipment supplied 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".
However, Commissioner Riordan said the Eureka flag had been widely used in Australian history, including by bikie gangs, right-wing and neo-Nazi groups, the Melbourne Victory football club and in the 1975 Federal election following the dismissal of the Whitlam Government.
"I am not aware of the CFMMEU having an intellectual property right over its use or meaning," he said.
Commissioner Riordan said he also failed to see how flying a CFMMEU flag on a crane high above a building site would convey there was "some sort of compulsion" to join the union.
A former ETU NSW secretary before being appointed to the FWC, Commissioner Riordan said that in his experience most workers would be looking down at tasks such as fixing steel and pouring concrete, meaning their "exposure to the flag would be minimal".
He recommended that Watpac refrain from directing its employees to remove the Eureka and CFMMEU flags from its cranes, and from taking disciplinary action against any employees who had previously been asked to remove the flags.
In February, construction and general division Victorian branch secretary John Setka argued that the ABCC was incorrect in interpreting the 2016 construction code's freedom of association clauses as extending to not displaying the Eureka symbol.
Setka said the removal of union logos or a union flag was an attack on freedom of association and implied a worker could not join the union.