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Building watchdog spends almost $500,000 challenging Eureka flag displays

What price freedom of speech? At the Australian Building and Construction Commission, it’s $487,029 in legal costs and counting.

The watchdog is pursuing building giant Lendlease through the courts in a test case over the display of union-associated Eureka flags and posters on one of its sites at a cost that it disclosed to Senate estimates on Wednesday was nearing $500,000. Displaying union and employer organisation symbols on employer provided clothing, property and gear is banned by the government’s building code.

A CFMMEU representative flies the Eureka flag in front of Parliament House.

A CFMMEU representative flies the Eureka flag in front of Parliament House.Credit:Alex Ellinghausen

Labor and the Construction, Forestry, Maritime, Mining and Energy Union see it as an expensive assault on free speech.

Nonsense, says the Australian Building and Construction Commissioner Stephen McBurney, pointing to the legislation that prohibits the display of “building association” symbols on employer gear at government-funded projects.

“Here’s the kicker Senator,” he said under grilling from Labor Senator Tony Sheldon at estimates. “This is because such practices can result in an implication that membership of the building association is a mandatory requirement of employment.”

Freedom of association is really the issue, he and Liberal senators on the committee argued. To show it’s a problem, ABCC officials read from a binder of cases where CFMMEU officials pressured employees into joining the union in ways much more direct than a poster.

Just what the law says will be determined by federal court justice John Snaden, who heard arguments from both sides in December but has reserved his decision.

The specific issue is technical, though it also has constitutional dimensions. It’s about whether the law prohibits all union symbols, or just those that imply union membership is mandatory.

Lendlease says it is the latter, while the commission is arguing for the former.

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