Recently, the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and Watpac Construction Pty Ltd referred to the Fair Work Commission (Commission) a dispute concerning the meaning of clause 13 of the Code for the Tendering and Performance of Building Work 2016 (Code).

Under section 595 of the Fair Work Act 2009 (Cth), the Commission may deal with a dispute in a number of ways including by "making a recommendation or expressing an opinion", as it was asked to do in this instance. This dispute arose under the private arbitration clause in an enterprise agreement.

The dispute specifically centred around whether the flying of a CFMMEU flag or a Eureka flag (a symbol synonymous with union activities - including CFMMEU and the Electrical Trade Union), from a crane on a site was inconsistent with the freedom of association provisions in clause 13 of the Code.

Relevantly, clause 13 of the Code requires Code-covered entities to protect freedom of association by adopting and implementing policies and practices that ensure persons are both free to become, or not become, members of building associations. The Code further obliges Code-covered entities to ensure that "building association logos, mottos or indicia are not applied to equipment" where it would imply that membership of a building association is "anything other than an individual choice for each employee".

On 30 May 2018, Commissioner Riordan published his recommendation in relation to the dispute (Recommendation).

In the Recommendation, Commissioner Riordan stated that, in his opinion, he failed to see how "flying a CFMMEU flag on a crane a few hundred feet above a worksite, which could only be viewed by the small percentage of site employees who are working on the upper deck, would cause any employee to form the view that there was some sort of compulsion to join the CFMMEU in order to work on that site."

The Recommendation was, ultimately, that Watpac refrain from issuing directions to employees to remove the Eureka and CFMMEU flags from cranes and refrain from taking disciplinary action against any employee who had previously been requested to remove those flags. Watpac is, of course, at liberty to disregard the Recommendation.

The Recommendation is inconsistent with the approach and stated views of the Regulator responsible for monitoring compliance with the Code, the Australian Building and Construction Commission, in relation to clause 13 of the Code.

Unlike a decision that would come from a dispute that is formally arbitrated, the Recommendation is a non-binding conclusion based on the opinion of Commissioner Riordan. It is not binding upon the parties who referred the dispute - despite what has been widely reported. If this dispute had been arbitrated, it would have been a private arbitration and would only be binding on the parties.

While the Recommendation may get some traction among the CFMMEU delegates, Code-covered entities should be advised that:

• the Recommendation is of no legal force with respect to the Code
• it is not a "decision" and is thus not binding on anyone
• perhaps most importantly, the Regulator has taken a different view.