New ABCC chief targets CFMEU repeat offenders

In his first interview, new ABCC head Stephen McBurney threatens contempt proceedings if the CFMEU pays penalties imposed on individual officials.

Stephen McBurney sees similarities with AFL umpiring and his new job at the Australian Building and Construction Commission. Picture: Stuart McEvoy

CFMEU officials who repeatedly break the law will be targeted by the new building watchdog in a bid to force them to personally pay ­financial penalties and companies will be chased for construction code breaches if Eureka-flag stickers appear on federal projects.

In his first interview since being appointed head of the Australian Building and Construction Commission, Stephen McBurney threatened contempt proceedings if the CFMEU sought to pay penalties imposed on individual officials.

Mr McBurney, a former Australian Football League umpire and organised crime investigator, admitted the law-breaking by his predecessor Nigel Hadgkiss was “unacceptable and regrettable”.

Mr McBurney revealed he had written to the Construction Forestry Mining and Energy Union, offering to meet senior officials to explore if the union was prepared to stop breaking the law, because he would prefer to spend his budget on education and prevention rather than costly taxpayer-funded litigation.

But he also said his agency was legally obliged to prosecute ­alleged unlawful conduct and would use a recent High Court ruling to seek to have CFMEU ­“repeat offenders” personally pay penalties.

The court decision means union officials can be hit with ­orders stopping unions paying fines on their behalf. “I expect as a result of this decision there will be a number of cases where personal-payment penalties will be sought.’’ Mr McBurney said.

He said the agency would also consider contempt orders if the CFMEU sought to pay the penalty on behalf of the individual worker.

He said the ABCC legislation gave him additional weapons, ­including the tripling of penalties since December 2016 for unlawful conduct. The CFMEU will also have to meet the agency’s legal costs where the regulator successfully prosecutes over conduct.

Mr McBurney said employers would be in contravention of the federal building code if workers on government projects displayed the Eureka flag or union slogans on employer-supplied clothing and equipment, including mobiles and hard hats.

He cited a CFMEU Facebook post that said the Eureka flag had been a symbol associated with building unions for over 40 years and “has now become an integrated part of today’s CFMEU brand and what the union represents for its members”.

“What the code emphasises is if this clothing and equipment is ­issued by the employer and it’s badged with the building association logo on it, it implies that the employer is supporting that union on that site, and that’s why it is a contravention of the code,’’ Mr McBurney said.

Employers can be banned from tendering for federal building work if they are found to have breached the national building code. Mr McBurney said if breaches were brought to a company’s attention and then rectified, that might be “as far as it goes”.

Mr McBurney, 50, worked as a solicitor at the Australian Government Solicitor’s office from 1991, transferring to the National Crime Authority as a senior lawyer in 1998 before working at the Australian Crime Commission.

He was an assistant commissioner at the former ABCC from 2006-08, where he had ­responsibility for litigation and the agency’s compliance powers. He spent the past nine years in the Victorian Office of Chief Examiner that exercised coercive powers to help in the investigation and prosecution of high-level organised crime offences.

Mr McBurney is best known in Victoria for his umpiring career, being one of four AFL umpires to reach the 400-game milestone. He umpired four grand finals from 2002-09 and officiated in four International Rules matches between Australia and Ireland.

He said he saw similarities in how he approached his role as an umpire and his new job. As much as footy fans screamed abuse, he was determined to be impartial.

“This (ABCC head) is not a popular position,’’ he said. “I am bound to invite criticism, as I did as an umpire. I needed to have a thick skin as an umpire but what we ­really reassured ourselves as ­umpires is we had to block out the criticism from those with vested interests — that is the footy fan who is passionate about his football club.

“We had to apply sound decision-making based on objective criteria. The only people we listened to were our umpire coaches who shared our impartiality.’’

Mr McBurney said while the contravention of the Fair Work Act by Mr Hadgkiss was “unacceptable and regrettable”, he praised his predecessor’s contribution.

“I worked with Nigel at the ABCC,’’ he said. “I have got enormous respect for his passion for the job he did, and the significant body of work that he was responsible for.”

Mr McBurney said while the agency’s pursuit of the CFMEU resulted in millions of dollars of penalties against the union, there had been a significant cost to the public purse as the agency’s legal costs had been met by taxpayers.

He said judges had consistently pointed out the CFMEU saw penalties as the cost of doing business.

“I am exploring whether there is another way rather than incurring significant legal costs on ­unions and their members, incurring significant taxpayer costs on legal costs expended by my ­agency, the regulator,’’ he said.

He said the money would be better spent on education and prevention. “I would want to see whether there is a genuine change of direction from the union rather than this pattern of contraventions, and whether there is a preparedness to show genuine remorse and contrition.’’

Mr McBurney said the agency was pursuing 41 investigations, with 37 involving the CFMEU. “I have written to the CFMEU. I am leaving the door open to engage with them if they wish to because the act doesn’t discriminate ­between building industry participants,’’ he said.

“That offer has not been taken up in the past by the CFMEU,’’ he said. “I am here, I am new in the role, and interested to engage with them to see if it’s something they would consider as an alternative to ­litigation.’’