Full Federal Court slams ABCC over ‘trivial’ case against CFMEU

Published: 5 Mar 2019

The Australian Building and Construction Commission (ABCC) has been slammed by a Full Federal Court which dismissed the ABCC’s appeal against a costs judgment made against the ABCC over bringing a “trivial” case against the CFMEU.

Not only did the court dismiss the appeal, but it also made an order that the ABCC pay the CFMEU’s costs.

The ABCC brought proceedings in 2015, seeking penalties over two CFMEU officials visiting a construction site and merely having a cup of tea and talking about four-wheel driving.

Justice North dismissed the ABCC’s application for penalty orders in March 2018, finding that the officials had “entered the site solely for the purpose of a social visit to a friend”, describing the case as a ‘storm in a teacup’.

Subsequently, in a judgment handed down in August 2018, Justice North ordered that ABCC pay the CFMEU’s costs, a highly unusual order in a Fair Work proceeding, generally a no costs jurisdiction.

Today, the ABCC’s appeal against the costs judgment was unanimously dismissed. In its judgment, the court said: “none of the Commissioner’s three alleged errors in the costs judgment has any merit.”

In considering the ABCC’s arguments, the court noted that Justice North was concerned with the “absence of any attempt on the part of the Commissioner to address the view previously expressed as to whether the case was anything other than one directed to a “minuscule incident” and one not “worthy of… attention”.

The court reiterated Justice North’s finding that “there was no indication at any stage that the Commissioner had developed any insight in respect of the triviality of the claim he was pursuing, nor the costs burden he was imposing on the respondents in the process.”

The court went on to make an order that the ABCC pay the CFMEU’s further costs of the appeal, agreeing with Justice North that the “Commissioner had acted unreasonably in this proceeding” and finding that “this [appeal] reflects a continuation of that course of conduct” and “it necessarily follows that this application is tainted by the same unreasonableness.”

In its written submissions in support of the appeal, the ABCC referred to the reputational damage it suffered, having been found to have done an unreasonable act that caused the CFMEU to incur costs.

CFMEU Victorian Assistant Secretary Shaun Reardon said: “The ABCC continues to waste taxpayer money to try to repair its tarnished reputation instead of investigating issues which are rife in the industry such as wage theft and sham contracting”.