Fair Work Commission senior deputy president Jonathan Hamberger warned over anti-CFMEU tweet

Fair Work Commission says senior commission member acted inappropriately by re-tweeting social media post attacking Bill Shorten, CFMEU.

Fair Work Commission senior deputy president Jonathan Hamberger. Picture: File

A Fair Work Commission full bench has suggested a senior commission member acted inappropriately by re-tweeting a post by Michaelia Cash attacking Bill Shorten and the Construction, Forestry, Maritime, Mining and Energy Union.

But the full bench concluded senior deputy president Jonathan Hamberger could continue to hear and determine right of entry applications by CFMEU officials.

“We emphasise that in reaching this conclusion, it is not our intention to endorse the senior deputy president’s conduct in ‘retweeting’ Senator Cash’s politically contentious tweet,’’ the full bench said.

“It is not generally appropriate for members of the commission to express publicly views about matters of party-political controversy.”

The “tweet” posted by Senator Cash and “retweeted” by Mr Hamberger in 2016 contained the message: “Labor gets millions in donations from the CFMEU. That’s why they’re against restoring the ABCC. Bring back the #ABCC”.

It contained an image of Mr Shorten, dressed as a cricketer and holding a cricket bat and helmet in the air. Superimposed at the top of the image was a newspaper headline which read “CFMEU notches up 100 members before courts”, and at the bottom were the words “A Century of Shame”.

Last year, the CFMEU applied to have Mr Hamberger recuse himself from hearing right of entry applications by three CFMEU organisers on the ground of a “reasonable apprehension of bias”.

Mr Hamberger rejected the application, saying he had dealt with more than 50 matters involving the CFMEU since July 2017 and there had no suggestion he had not acted impartially.

In its decision handed down today, the full bench said it assumed, without deciding, that Mr Hamberger’s re-tweet was an endorsement of Senator Cash’s opinions.

The full bench said the CFMEU had been denied procedural fairness and it decided to redetermine its recusal application.

The CFMEU argued the retweet might lead the fair-minded lay observer to apprehend that Mr Hamberger might not bring an impartial mind to the right of entry applications by the three officials.

But the full bench said Mr Shorten was the primary target of the criticism in the tweet and the CFMEU was targeted in a subsidiary way.

The union said because Mr Hamberger endorsed the view that the CFMEU and all who are associated with it were shameful and to be condemned, the fair-minded lay observer would reasonably apprehend that he could not bring an impartial mind to the proceeding.

The full bench said it do not consider the “tweet” can be read so broadly as to be critical of any person who associates with the CFMEU. The “retweeted” opinion of Senator Cash contained no direct criticism of the three officials.

Since the “retweet” was taken down, Mr Hamberger had decided a number of matters concerning the CFMEU and its officials without any complaint about his impartiality.