construction worker
Source: Pexels.
  • ABCC and CFMEU clashed in court
  • Dispute over a union delegate raising safety concerns on a construction site
  • Federal Court Justice slammed the ABCC for one of its claims "bordering on the improper"

The Australian Building and Construction Commission (ABCC) and the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) have clashed in court once again.

Federal Court justice Duncan Kerr slammed the ABCC, describing one of its claims as “bordering on the improper” during the prosecution of a CFMEU delegate who had raised safety concerns about inadequate first aid facilities on Melbourne’s Metro Tunnel Project.

This happened back in July 2019, when a union representative told workers to put down their tools on the $11 billion project because there was a lack of ramp access and poor lighting in the first aid room.

This recent clash between the building regulator and union should come as no surprise to anyone who follows industrial relations. Union officials have called for the ABCC to be abolished, whereas the Master Builders Australia argued such a decision would “unleash union thuggery” and drive up the cost of construction.

Although the judge accepted that they are old foes and that litigation will always be hard fought, he criticised the ABCC for “pressing submissions based on unavailable premises without having substantially reviewed its position.”

Contrary to claims made by the ABCC, the judge found the delegate had a reasonable belief that the safety concerns 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.”

“The court should not have been invited to impose penalties on that premise.”

Dave Noonan, CFMEU National Construction Secretary has accused the building regulator of thinking itself above the law in its “relentless persecution of construction workers to defend their own safety and industrial rights”.

“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 lash out was not one-sided however. Justice Kerr said that the CFMEU has a history of misusing safety concerns to advance its objectives.

Despite the judge describing the ABCC treating the court case like a “blood sport”, the CFMEU was ultimately fined $85,000 for delaying work on the Melbourne Metro Tunnel project.

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