Judge slams ABCC conduct in court

Published: 28 Jun 2021

A Federal Court judge has slammed the ABCC, describing one of its claims as "bordering on the improper" during the prosecution of a CFMEU delegate who raised safety concerns about inadequate first aid facilities on Melbourne's Metro Tunnel Project.

"The ABCC behaves as though it is above the law in its relentless persecution of construction workers and their ability to defend their own safety and industrial rights," said Dave Noonan, CFMEU National Construction Secretary.

"Construction workers are burdened with a regulator that too often fails to behave as a model litigant and refuses to afford them procedural fairness. It is time for the ABCC to be abolished."

"Justice Duncan Kerr's comments on the ABCC's conduct during this case should serve as a wake-up call on the regulator's poor attitude to principles of natural justice."

“The ABCC uses coercive and intrusive powers to pursue construction workers for engaging in what would be ordinary industrial action in any other industry. It is a hopelessly compromised and politicised regulator, incapable of serving the needs of a modern construction industry,” Dave Noonan said.

Justice Kerr suggested the ABCC had wasted the court's time:

"The Court accepts that the ABCC and the Union are old foes and that litigation as between them will always be hard fought but the Court is entitled to expect that proceedings will not be conducted as a blood sport where issues not genuinely in contention are not acknowledged unless strictly proven.”

He criticised the regulator for continuing to press arguments that were not supported by the agreed facts in the case:

"Like a battleship in full steam, the ABCC thus appears to have had difficulty turning... it had continued to press its submissions based on unavailable premises without having substantially reviewed its position"

Contrary to claims made by the ABCC, he found the delegate had a reasonable belief that the safety issues raised were legitimate.

"The Court is drawn to the conclusion that [the delegate]’s concerns about the adequacy of the first aid room may have been far from baseless and misconceived".

"I reject that I would be entitled to find that [his] concern about the adequacy of the first aid room was not reasonably held by him."

And he decried the regulator’s conduct during the case:

"In that circumstance it was bordering on the improper for the ABCC to have invited the Court to proceed in these penalty proceedings on the basis that there may well have been a second, presumably better provided for, first aid room available at the work-site."

"The Court... was entitled to expect assistance from counsel representing the ABCC in identifying a sound factual basis for the imposition of penalties. I regret that little or nothing in the nature of such assistance was forthcoming in this case."