Union Wins Against the ABCC

The Union has your back the ABCC doesn't

ABBC v CFMEU (CUP of Tea Case) [2018] FCA 402

In this case four Australian Federal Police Officers were called to a worksite at Melbourne Airport when two CFMEU officials had stopped by to catch up with the shop steward. The AFP officers weren’t that interested, took some details and left but the ABCC later charged the officials with alleged “right of entry” breaches and sought heavy penalties.

Justice North of the Federal Court found that the officials had been engaged in a “wholly social visit” in which they had a cup of tea and discussed their shared interest in 4WD trips. The judge dismissed the case using the Latin phrase “excitare fluctus in simpulo” or as we know it these days in English “a storm in a teacup.”

The ABCC appealed, only to lose again and the court awarded costs against them. A complete waste of everyone’s time and taxpayers’ money.

CFMEU v ABCC (The Bay Street Appeal) [2020] FCAFC 192

When workers downed tools for an afternoon in support of claims for appropriate site amenities including a separate women’s toilet, the ABCC was quick to prosecute two CFMEU officials in the Federal Court. They were successful at first with the judge concluding that his hands were tied by earlier decisions of the Federal Court. 

The union quickly appealed the case to a Full Bench of the Federal Court and won, with the penalties awarded against the union and the officials being quashed. 

Not satisfied with this result, the ABCC wasted more taxpayers money trying to take it to the High Court but leave to appeal was refused. Presumably the High Court could see it for what it was – a stinker! 

ABCC v Desmond Savage & CFMMEU [2022] FWCFB 10

In this case the ABCC tried to appeal the Decision of a Fair Work Commission Deputy President to issue a right of entry permit to CFMEU Official Des Savage. 

The Full Bench of the Fair Work Commission was scathing of the ABCC’s appeal, going so far as to say that the its first appeal point was “without merit and had no reasonable prospects of success” and that it’s second appeal point “is so directly contrary to the case it advanced at first instance that it would be entirely inappropriate to grant permission to appeal in respect of it.” 

The Full Bench went on to say:

“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 ABCC’s hopeless case was thrown out – Another complete waste of time and taxpayers’ money.

ABCC v Parker & CFMEU [2021] FCA 704

In this case the Federal Court found that when a CFMEU shop steward directed workers on the Melbourne Metro Tunnel to not commence work due to inadequate first aid facilities and inadequate lighting, he breached the law. We can cop that – but the ABCC’s prosecution of the case really showed up their ideological agenda. Describing some aspects of the way the ABCC ran the case as “bordering on the improper” the Judge said:

“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…. 

…Like a battleship in full steam, the ABCC thus appears to have had had difficulty turning. Having commenced its proceedings on the premise that Mr Parker’s conduct was motivated by something beyond that established on the admitted facts…it had continued to press its submissions based on unavailable premises without having substantially reviewed its position… 

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.”

The ABCC likes to kid itself and the public that it is just an “impartial umpire.” As can be seen from the way it ran this case though, it’s pretty clear that it is out to get the union and its active members come hell or high water.