CFMEU let off the hook by watchdog for ‘most serious’ threats: judge
Hannah WoottonReporterApr 21, 2024 – 5.00pmListen to this article5 minA judge has slammed the Fair Work Ombudsman for dropping claims that an officer of the lawbreaking CFMEU union physically and financially threatened an employer, saying the “bizarre” decision put public faith in the workplace watchdog at risk.
Judge Salvatore Vasta still fined the Construction, Forestry, Maritime, Mining and Energy Union and its officials more than $135,000 for other “appalling” wrongdoing.
The CFMEU and its officials will pay fines of more than $135,000 in the case. Joe Armao
But he said the Fair Work Ombudsman backing down from “the most serious” allegation in the case could give the public the perception it had “not lived up to its purpose” and does not “treat all victims equally and all perpetrators equally”.
It is the first time the courts have so explicitly challenged the ombudsman over its growing track record for settling cases it inherited from the now-defunct construction industry watchdog.
It also raises questions about who is holding the CFMEU accountable since Labor took power in 2022 and fast-tracked dismantling the Australian Building and Construction Commission.
AdvertisementThe ABCC was first created by the Howard government to police union militancy on building sites, then all but abolished by Kevin Rudd, before being restored by Malcolm Turnbull in 2016. The Albanese government brought forward plans to defund it and shift its cases to the FWO in 2022, despite warnings it would blow out construction costs.
In the latest case, the ombudsman settled with the CFMEU in a last-minute deal in which it agreed to drop claims about physical and financial threats by a union officer despite having made a “very strong” case in a five-day trial, according to Judge Vasta.
The dropped charge – which was originally before the ABCC – alleged a CFMEU official told a project manager that he would “grab my bat and start swinging it” if he did not use the union’s picks of subcontractors on a government job. The project manager was also accused by the union official of corruptly paying Queensland government officials.
“To abandon such a claim, especially at the 11th hour, is something that one would think would not occur lightly,” Judge Vasta said in a Federal Circuit Court judgment last week, also noting the matter “ended in a rather bizarre fashion”.
“What launched as a hotly contested proceeding requiring five hearing days, which included robust cross-examination followed by full written submissions, ended quite suddenly with a compromise,” he said.
The FWO also admitted to the judge that it had two witnesses it believed were “witnesses of the truth” to back up its claim, adding to Judge Vasta’s incredulity the case was dropped.
Lawbreaking
Under the settlement, the CFMEU was still fined nearly $114,000 for breaching right of entry laws at the Yatala South Interchange upgrade project on the M1 south of Brisbane. Its officials Dean Rielly, Matthew Vonhoff and Margues Pare were also penalised $15,000, $3750 and $2550 respectively for their involvement.
The trio failed to sign the visitor register at the site despite being asked to do so by the occupier.
Judge Vasta signed off on the penalties even though they were not the maximum available, saying that although the CFMEU had an “appalling record” it had organised training for its officers in response.
But he warned the FWO that dropping the threat claim may create “a perception that it had not complied with its obligations as a model litigant”, such as its duties to act as transparently and consistently as possible.
FWO has dropped at least three other actions it inherited from the ABCC and partially discontinued another. Attorney-General Mark Dreyfus also stopped the ABCC enforcing a Federal Court costs order against the CFMEU for more than $500,000 in legal costs for a case over bans of union flags and stickers on building sites.
“Whilst it must treat all victims equally and all perpetrators equally, the perception here may very well be an Orwellian one; that is, that some victims, and some perpetrators, are more equal than others,” Judge Vasta said.
He suggested the FWO’s abandonment of the charge raised questions about transparency. It followed extensive witness examination and submissions, and came late on a Friday before the “long-running saga” was due to wrap up on the Monday.
He said this perception “may very well” go as far as suggesting the FWO had, “by its own actions, not lived up to its purpose”.
Judge Vasta published what would have been his judgment despite the settlement as he said the “unusual nature” of the case and the amount of court time it used meant doing so was in the public interest.
