The Australian Building and Construction Commission (ABCC) was dealt another embarrassing blow on March 21.
The Federal Court dismissed all claims against the Construction Forestry Mining Energy Union (CFMEU) after finding prosecutors had made a deal with a confessed blackmailer to give evidence for the Australian Building and Construction Commission (ABCC) in return for staying out of jail.
Dismissing the action against seven senior CFMEU officials in the ACT, Justice Geoffrey Flick said prosecutors struck a deal with former CFMEU organiser Halafihi Kivalu to give evidence against the CFMEU. At the time, Kivalu was facing criminal charges for blackmail after pleading guilty to extorting $70,000 from a Canberra building contractor.
The ABCC’s case against seven members of the CFMEU’s ACT branch relied heavily on Kivalu to prove their allegations that the union’s ACT branch secretary Dean Hall and his colleagues organised a blockade of a building site in the city’s inner-north in June 2014 because building company Built had refused to sign a union-endorsed enterprise agreement.
The union denied the claims and said the blockade was because it had concerns for the safety of the construction workers at the building site.
Justice Flick found: “The concern of the CFMEU was not unfounded and provides a further reason for concluding that the Director has not discharged the onus of proof … It is further separately concluded that the purpose sought to be achieved by the closure of the Rosevear Place Gate was founded upon concerns as to safety”.
Evidence given by the Master Builder’s Association’s former Director, John Nikolic, who also gave evidence in the Royal Commission into Trade Union Governance and Corruption, was rejected by the judge, because Nikolic was “not an independent witness”. He also found: “The evidence of Mr Kivalu is subject to such serious reservation that no reliance can be placed upon it.”
National secretary of the CFMEU’s construction division Dave Noonan said the failed court action showed the ABCC put ideology ahead of the interests of workers and the community. He called on ABCC Commissioner Nigel Hadgkiss to release details of the “secret deal” struck between prosecutors and Kivalu.
Hall said the case was purely political. “Nigel Hadgkiss has always been a Liberal Party apparatchik,” he said, “but, even for him, this was overreach. The ABCC have made their political motivations evident in this case.”
He said the dispute at Dickson had always been about safety. “There was construction work going on, next to two childcare centres no less, and we had a genuine concern that there was asbestos present,” he said.
“We will never stop standing up for safety and the community, no matter how hard the government want to send their secret police after us.”