ABCC chief Nigel Hadgkiss broke Fair Work Act

In an embarrassment to the Coalition, Nigel Hadgkiss faces a Federal Court hearing after admitting to contravening Act.

Nigel Hadgkiss appearing at a hearing into the Fair Work Building and Construction at Parliament House in Canberra

Australian Building and Construction Commissioner Nigel Hadgkiss has admitted to contravening the Fair Work Act, sparking fresh calls by the construction union for him to resign.

In an embarrassment to the Coalition, Mr Hadgkiss will face a civil penalty hearing in the Federal Court on Friday.

In an agreed statement of facts tendered in court today, Mr Hadgkiss admitted that in December 2013 he directed that looming changes to right of entry laws — that were beneficial to unions and workers — not be published by the agency.

The Coalition won the federal election in September 2013 but the previous Labor government had passed changes to the right of entry laws that came into operation on January 1, 2014.

Before the amendments, a union official had to follow a reasonable request by an employer about where they could hold site discussions with workers.

Under the ALP changes, the employer was no longer authorised to give such a request. If no agreement could be reached, the union official could meet workers in their regular meal room for discussion.

According to the statement of agreed facts, Mr Hadgkiss met two senior agency staff on December 19, 2013 and directed that no changes be made to agency educational material to reflect the new law.

A senior agency staffer said he told another senior employee that there was a political and legal risk associated with withholding the information. The employee agreed, saying he raised his concerns with Mr Hadgkiss but he was adamant “he didn’t want us to change anything”.

Mr Hadgkiss argued the then Employment Minister Eric Abetz has promised to repeal the amendments when federal parliament resumed in 2014. He believed the amendments would be repealed and changes to the educational material would have to be reversed.

But the amendments have not been repealed and remain the law.

Construction Forestry Mining and Energy Union national construction secretary, Dave Noonan said Mr Hadgkiss should resign or be sacked by Employment Minister Michaelia Cash.

“It’s a very serious matter when the regulator breaks the same laws they are supposed to be enforcing,’’ he said. “Can you imagine if the head of the ACCC admitted to breaching the Corporations Act?

According to the Remuneration Tribunal, Mr Hadgkiss receives a taxpayer-funded salary of $426,160 a year.

Asked if Senator Cash still had confidence in Mr Hadgkiss, her spokesman said “the matter is still being determined by the court and it would therefore be inappropriate to comment at this stage”.

Opposition workplace relations spokesman Brendan O’Connor said Senator Cash had “allowed her regulator to intentionally operate in breach of the very legislation which he is authorised to enforce”.

“Unless and until the Minister publicly denounces Commissioner Hadgkiss and takes appropriate action, any comments she makes about upholding the rule of law are hollow and insincere,’’ he said.

ACTU secretary Sally McManus said Senator Cash must sack Mr Hadgkiss.

“Surely the person who has the highest responsibility, a greater responsibility, to abide by industrial laws is the person in charge of upholding them,’’ she said.

“If a police chief recklessly broke the law, which Nigel Hadgkiss has admitted to, their position would in untenable and there would be consequences. If a worker fails to follow workplace laws they can be sacked.

“Michaelia Cash is calling for the sacking of union leaders — what standard will she apply to her own employee who is in charge of upholding her laws?”

Mr Hadgkiss admitted to contravening section 503 (1) of the Fair Work Act which says a person must not take action with the intention of giving the impression, “or reckless as to whether the impression is given that the doing of a thing is authorised when it is not.

Mr Noonan said Mr Hadgkiss admitted “his conduct was reckless”.

“We believe the result of that recklessness is that the industry was misled on a key issue affecting workers’ rights,” he said.

“He has taken great care to bring multiple prosecutions against unions and workers over right of entry breaches, but has failed to conduct himself with reasonable care in relation to these same laws, and in particular those parts of the laws which extend some benefit or protection to workers.

“Mr Hadgkiss’s position as a regulator is compromised and untenable, and he should resign immediately,’

The consequence of the direction by Mr Hadgkiss was that a fact sheet, poster and pocket guide available for download on the agency website was not changed until July last year.

An article detailing the right of entry changes was published on the agency intranet for staff on January 9 2014.

It said given the changes will be “rolled back in the future”, staff should only provide advice about them if specifically asked, and presentation should not include slides about the new provisions.

On January 9 2014, Jeff Radisich, executive director of northwest operations, asked Adam Copp, the agency director of stakeholder engagement, whether the roll back would occur.

“I thought we would be stuck with these provisions until the Senate change over in July,’’ he wrote. “If that’s the case we are running something of a political and industrial risk by withholding info on the law as it currently stands.”

Mr Copp replied “to be honest, I do share your concerns and talked to Nigel about it last year”.

“However, he was absolutely adamant that he didn’t want us to change anything as the government intention is to change the legislation. He said he was extremely comfortable handling it in (Senate) estimates or the media or wherever. He felt pretty strongly about it.”

Mr Hadgkiss eventually directed the fact sheet, poster and pocket guide be withdrawn last year after Mr Noonan wrote to him in July last year, saying they misrepresented the requirements of the Fair Work Act.

A spokesman for Mr Hadgkiss said he would not comment as the matter was before the courts.

In the statement of agreed facts, Mr Hadgkiss admitted he had not read the fact sheet, poster or pocket guide prior to reviewing for the purpose of the current court case. Nor was he aware of their specific content.

He admitted he had not studied the right of entry amendments or the amending act but relied on media reports and commentary at the time to get an understanding of the broad nature of the amendments.

He said he “did not intend, believe or advert to the possibility” that an impression would be given that something was authorised by the Fair Work Act when it was not authorised.

However he accepted that he could reasonably have been expected to have foreseen the continued availability of the fact sheet, poster and pocket guide could give the impression the pre-2014 legal position remained.

Mr Noonan said the CFMEU has raised objections about the ABCC materials since 2014.

“For over two years, from 2014 until the CFMEU complained to the ABCC in 2016, multiple ABCC publications on right of entry laws did not accurately describe this provision, and incorrectly asserted that union officials had to comply with the employer’s wishes on the location of meetings,’’ he said.

“While the ABCC had ensured the correct legal position was known internally to its own staff, it disseminated incorrect information to the public and across the industry.”

The maximum fine faced by Mr Hadgkiss for the breach is $12,600.

Liberal MP and former Employment Minister Eric Abetz said the CFMEU claims were absurd.

He said the agency in 2014 decided to hold off updating its material because the Coalition intended to repeal the right of entry changes.

“It is perfectly reasonable that a Government agency would seek to reflect government policy,” he said.

“We took to the election a plan to repeal certain laws and, at that stage, were determined to do so as a matter of priority and indeed introduced legislation in February of 2014 to do so.”

“This suggestion that a regulator not updating a fact-sheet amounts to breaking the law is just the latest round of pathetic hyperbole from a union that is constantly found by the courts to have actually broken the law.”

“Mr Hadgkiss has proven himself a highly capable and well respected public servant who has dedicated his career to public service. These constant character assassination attempts do nothing more than reflect poorly on those making these claims.’’