ABCC again slapped down over legal conduct

Published: 8 Feb 2022

The Full Bench of the Fair Work Commission has slammed the conduct of the ABCC during an unsuccessful appeal brought by the building regulator to rescind the right of entry permit of a CFMEU official.

The Full Bench of the FWC observed that the Australian Building and Construction Commissioner was misusing the rights he holds as an officer of the Commonwealth, and that the ABCC failed to meet its obligation to act as a model litigant:

Having regard to the ABC Commissioner’s status as an officer of the Commonwealth with the responsibility of discharging the regulatory functions set out in s 16 of the BCIIP Act and the obligation to act as a model litigant, it would in our view constitute a misuse of the rights conferred by or emanating from s 110 of the BCIIP Act for the ABC Commissioner to make submissions on an issue of law at first instance and then to seek to make directly contrary submissions about the same issue in an appeal in order to secure what he perceives to be a desired outcome.

The Full Bench made these observations after the ABCC attempted to overturn a decision they didn’t like on appeal using a legal argument that was ‘directly contrary’ to what they themselves had previously argued.

“The ABCC is a rogue regulator that misuses its extraordinary powers against construction workers and their unions,” said Dave Noonan, CFMEU National Construction Secretary.

“This is the second time in as many weeks the ABCC has been sharply criticised for its legal conduct after the Federal Court slapped down the regulator for misrepresenting evidence which led to a CFMEU organiser being falsely accused of making a ‘throat slitting gesture’ on a building site in 2019.”

“This broken regulator lets bosses off the hook by turning a blind eye to the sham contracting and wage theft that plague the industry and instead goes after construction workers who stick up for their rights or try to fight for fair pay.”

“The ABCC is a broken and irredeemably biased regulator that must be abolished.”