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New blow for ABCC in ‘cup of tea’ case

The ABCC has suffered a defeat in the “cup of tea” case, as a court ruled the regulator should pay more costs to the CFMEU.

The construction regulator has suffered a new blow in the “cup of tea” case.
The construction regulator has suffered a new blow in the “cup of tea” case.

The Australian Building and Construction Commission has suffered a fresh defeat in the infamous “cup of tea” case, after the Federal Court ruled the regulator had continued to act unreasonably and should pay more legal costs to the construction union.

Three of the court’s judges today chastised the ABCC for challenging an order last year by Justice Tony North that awarded costs in the proceedings to the Construction, Forestry, Maritime, Mining and Energy Union.

The ABCC had originally claimed the CFMEU and two officials, Mark Travers and Adam Hall contravened the Fair Work Act by visiting a construction site at Melbourne Airport in 2014 without adequate notice.

But Justice North said the evidence demonstrated Mr Travers, accompanied by Mr Hall, visited the site solely for social purposes — “to have a cup of tea” — with his friend, Rod Duggan, a labourer on the site and a CFMEU shop steward.

The men talked about four wheel driving and recent trips around Australia over a cup of tea for 15 to 20 minutes before a manager, David White, told them to leave or he would call the police as they had not given 24 hours’ notice as required for union visits under workplace laws.

Mr White alleged Mr Travers said “if you call the police you will be starting a war”, a claim denied by Mr Travers. Four Australian Federal Police officers arrived in two cars, took some personal details and left.

Finding the case was a “storm in a tea cup”, Justice North said the ABCC decision to take the two officials to court was outrageous, and he ordered the regulator pay the CFMEU’s costs incurred from December 7 2016 to March 10 last year.

“I mean, we have enough CFMEU cases without every mate visiting another for a cup of tea coming to our court,’’ he said.

Dismissing the ABCC’s bid for leave to appeal the costs order, the three judges — Justices Geoffrey Flick, John Reeves and David O’Callaghan — found none of the errors alleged by the regulator existed.

“Having concluded that there was no error in the primary judge’s conclusion that the Commissioner had acted unreasonably in this proceeding since 6 December 2016 and given that this application reflects a continuation of that course of conduct, it necessarily follows that this application is tainted by the same unreasonableness,’’ they found.

They ordered the ABCC to pay the costs incurred by the CFMEU to contest the latest application.

Shaun Reardon, the CFMEU”s assistant Victorian secretary, attacked the ABCC”s conduct.

“While construction workers are being killed and maimed at work, our government is spending taxpayer dollars targeting building unionists drinking tea,’’ he said.

An ABCC spokesman said today the regulator “accepts the court’s decision and will not be appealing the judgment”.

Ewin Hannan
Ewin HannanWorkplace Editor

"Ewin Hannan is an award-winning journalist with decades of experience specialising in industrial relations, federal politics and the world of work. He is the winner of the 2024 award for industrial relations reporting at the Mid-Year Walkleys and the 2024 Kennedy Award for Outstanding Political Reporting. LinkedIn: https://www.linkedin.com/in/ewin-hannan-7176a636/?originalSubdomain=au "

Original URL: https://www.theaustralian.com.au/nation/new-blow-for-abcc-in-cup-of-tea-case/news-story/eb2368c9cf5038e1e46bb5f7cf86a015