The doomed construction watchdog, the Australian Building and Construction Commission (ABCC), is launching fresh court actions even after the government announced plans to shut it down.
A fortnight after Workplace Relations Minister Tony Burke confirmed he would enact Labor's election promise to shut what he called a "politicised and discredited organisation", the commission is starting legal action against the Construction Forestry Maritime Mining and Energy Union (CFMMEU) and an official.
The action is one of 36 the controversial agency is currently running against the CFMMEU (previously known as the CFMEU).
"The ABCC has always operated as a taxpayer-funded arm of the Liberal Party, set up to attack workers and their unions and deliver a political dividend to the Coalition and their building developer donors," argued the national secretary of the union's construction division, Dave Noonan.
"It is continuing in this core mission by ignoring Labor's mandate to abolish the organisation and deliver fairness for Australia's construction workers."
No rush
But the commission rejected any suggestion it was rushing to court ahead of its looming demise.
"The ABCC is continuing to undertake its statutory functions in the normal course, including investigating suspected contraventions of workplace laws in the construction industry and, where necessary and appropriate, initiating court proceedings," a spokesperson said.
In a recent interview, commissioner Stephen McBurney said that he was concerned about two things after the election. The first was the wellbeing of staff given their uncertain employment.
"Secondly, is the continued attacks that are being the subject of public discourse," he said.
"And the one thing I'm going to do for as long as I'm in the job is defend the integrity of our people, defend the integrity of the agency and defend our record, because I think it's a record worth defending."
Case mystery
The ABCC has at least 41 cases before court but it is unclear what will happen to them.
The Fair Work Ombudsman (FWO), which is slated to take over the cases when the ABCC shuts down, declined to answer whether it plans to continue, assess, or end the ongoing matters.
A spokesperson said the government had a "clear election commitment to abolish the ABCC".
The ombudsman said it was looking forward to "working constructively with the government and our stakeholders to implement this important reform", but declined to say what would happen to the commission's cases already underway.
"It is not appropriate for the FWO to make any comment on the ABCC's cases at this time," the spokesperson said.
Staff warned
The new cases come after revelations commission staff were warned not to campaign against Labor's election.
In talking points distributed before the election, staff were warned against directing industry bodies and supporters to help the Morrison government win the 2022 federal election.
Those previously secret documents, obtained through the Freedom of Information (FOI) process, added to controversy about the agency.
FOI documents showed that commissioner Stephen McBurney — who knew his job would be abolished if Labor won the election — held a "strategic" meeting with supportive industry association Master Builders Australia ahead of the 2022 election.
The documents revealed Mr McBurney met with senior Master Builders Australia staff, including chief executive Denita Wawn, on February 17 and they discussed "key upcoming issues" including the "forthcoming election" and the "implications for the building code".
Mr McBurney denied there was anything untoward about that and subsequent meetings, saying they were about the caretaker period ahead of the election.
Agency doomed
Workplace Relations Minister Tony Burke has labelled the controversial union-busting agency "totally unnecessary" and has restricted its powers.
But that has not stopped the commission again taking on its key foe, the CFMMEU.
Legislation to abolish the agency will go in front of parliament before the end of the year.
Even if it fails, the government has indicated it will defund the agency, killing it.
But for now, it retains powers.
The commission will be the fourth construction industry watchdog to be created and destroyed in a 20-year period.
New action
The latest action is against the CFMMEU and official Arron Platt.
The commission alleges Mr Platt used "threatening and offensive language" towards site management while exercising his right of entry — going on-site to talk to workers — at a $64-million Woolworths distribution centre being built in Auburn, New South Wales.
In a press release about the claims submitted to court, the commission detailed lurid language it alleges Mr Platt used towards site management.
The key allegation is that his conduct contravened a section of the Fair Work Act, making him liable to a maximum $13,320 individual penalty.
The union said the commission had previously made accusations that included explosive details in initial statements of claim, before deleting them before the court process requires them to be substantiated.
"Since 2019 the ABCC has adopted a strategy of using media releases to air false and lurid claims about the behaviour of union officials and construction workers, only for these claims to be walked back or abandoned when matters are brought before the courts," Mr Noonan argued.
"Yet conservative politicians and their fellow travellers in parts of the media continue to repeat these false claims as fact.
"The Federal Court has called out this behaviour on several occasions and has been increasingly critical of the ABCC's legal conduct and failure to meet its obligation to act as a model litigant."
The commission rejected this claim.
"All content in ABCC media releases relating to alleged conduct reflects relevant pleadings filed with the court," a spokesperson said in a statement.
"The ABCC only ever files court proceedings based on external legal advice that there are reasonable prospects of substantiating all allegations made.
"On occasion, proceedings are resolved before the court is required to determine liability, meaning that respondents make certain admissions about their unlawful conduct and their contraventions of workplace laws.
"In some instances, this may require changes being made to pleadings on the basis that respondents are admitting to some but not all of the alleged conduct. This occurs only by agreement between the ABCC and the relevant respondents."
Death notice for commission
Of the 41 cases the commission has before the courts, 35 are against the CFMMEU, three involve the Communications Electrical Plumbing Union (CEPU) and one is against the Australian Workers' Union (AWU).
The main category of "contravention" – 25 of the 41 – covers alleged breaches of right-of-entry laws by unions going onto work sites.
Labor has long vowed to shut the commission, which it argues was a "politicised and discredited organisation".
In an echo of people writing advanced care directives about what kind of decisions they want to make at the end of their life, the commission submitted a brief to the incoming government laying out its own demise.
It discusses legislation as the "most effective way to achieve abolition" and asks for the minister to communicate with the industry to provide what it calls "stability and certainty".
"The … commissioner is available to meet at your earliest convenience to discuss implementation of the government's commitment to abolish the ABCC," it says.
The brief notes expenses for the 157 staff were lower than planned and budgeted for.
That is because of "recent staff attrition" and the "deferral of recruitment exercises" ahead of the election – where Labor had vowed to shut the agency.
