The Eureka flag has been banned on federally-funded building sites after courts found against the CFMEU’s constitutional challenge. 

Building giant Lendlease brought a case to the Federal Court after the union-busting Australian Building and Construction Commission (ABCC) issued compliance notices over the Eureka Stockade symbol flying on cranes and CFMEU posters in the lunchroom at its Monash University building site. 

The ABCC was applying a code that applies to every site run by employers who work on federally-funded building projects, which restricts “building association logos, mottos or indicia” on property, clothing or equipment at sites.

Flags at the Lendlease site included the Eureka symbol and others saying ‘We Support John Setka’, ‘Be paid up and proud’, ‘United we stand’ and ‘when injustice becomes law, resistance becomes duty’.

The Construction, Forestry, Maritime, Mining and Energy Union’s argument on constitutional grounds was that the broad ban restricted its implied freedom of political communication.

Lendlease and the CFMEU argued that the code only banned signs that implied membership of the union was anything other than a matter of individual choice.

The ABCC argued that the code banned all union signs and mottos on clothing, property or equipment, regardless of whether they were used to suggest that union membership was a matter of choice.

Justice John Snaden said the code was so poorly drafted that if the ABCC’s interpretation was accepted, workers would not be able to post any union-sponsored material as part of their industrial activity.

However, he also found that the ban was not disproportionate to the benefit of tackling the union’s ‘no ticket, no start’ policy.

Justice Snaden said the restrictions are necessary because current freedom of association laws “have not been as effective within the Australian construction industry as might have been hoped”.

Under freedom of association provisions, it is illegal for employers to require employees to be members of a union.

He said the union regularly finds itself on the “wrong end” of the law over its ‘no ticket, no start’ objective.

“It is not in doubt that the construction industry in Australia has not had a happy history – at least not over the course of this century – of compliance with freedom of association laws,” he said.

“That ‘different approach’ is consistent with what is ... a central and stated objective of Australia’s largest building association, the CFMEU: namely, as its own rules record, to ‘achieve compulsory unionism and control the supply of labour’.”

He ruled that restricting the CFMEU’s political communications with workers is not excessive when weighed against the benefit.

The Eureka flag was found to be a type of union paraphernalia, as the CFMEU has historically adopted the symbolism for its use.

ABCC head Stephen McBurney welcomed the clarity that comes from the court’s decision.

“The court’s decision affirms that the application of any building association logo, motto or indicia to clothing, property or equipment supplied or provided for by the employer, is a breach of section 13(2)(j) of the code,” he said.

“For building and construction workers, their decision on whether or not they join a union must be a matter of free choice.”