An embarrassing civil case against Australian Building and Construction Commissioner Nigel Hadgkiss shows that public servants must always go by what the law says, even when the minister is absolutely adamant that it will soon change.
Governments will quite often announce their plans with complete confidence, as though they are a foregone conclusion, right up until they are blocked by a hostile upper house (except of course in Queensland and the two territories, whose unicameral parliaments are more predictable).
This political tactic often involves acting shocked that the opposition or cross-bench would fail to support the elected government, and is best ignored by the bureaucracy and especially statutory office holders like Hadgkiss.
Update: The commissioner resigned from his post this afternoon (a second time from the same job) over the scandal. He will serve a two week transition period to facilitate a handover of his responsibilities to an acting commissioner, according to the Minister for Employment Michaelia Cash.
The civil case was brought by the Construction, Forestry, Mining and Energy Union, and revolves around a set of information materials published by the ABCC — posters and fact sheets — that were not changed to reflect a relaxation of right-of-entry regulations that took effect from January 1, 2014. For two years, the ABCC continued to offer the outdated materials that said union officials had to comply with “reasonable requests” from employers about where they could meet employees on work sites.
This legislation was passed by federal Parliament before the previous Labor government lost power in 2013 and the new Coalition regime vowed to repeal it by February, in which case the older posters and fact sheets would be accurate once again.
But that never happened and the incorrect materials remained available on the ABCC website until last July, when CFMEU secretary Dave Noonan complained about them. What might have seemed like common sense — holding off on new materials that might need to be pulped and replaced with the old ones in a matter of weeks — became a serious legal risk.
Emails have now been exposed in a discovery hearing showing Hadgkiss had staff telling him they really should correct the information but he told them firmly not to do anything. He also admitted he “did not turn his mind to the possibility ” that the Coalition’s planned repeal would not happen as quickly as the government said, the Australian Financial Review reports.
With correspondence showing the statutory commissioner made this decision against the advice of the senior public servants who support him, the CFMEU, Australian Council of Trade Unions and others called for him to resign, especially as the law he appears to have disregarded, the Fair Work Act, is central to his role.
The commission’s executive director Jeff Radisch warned of the risks of not changing the ABCC’s official information, but head of stakeholder engagement Adam Copp said Hadgkiss was “absolutely adamant” that they should keep the old materials on the basis that the government had said it would undo the January legislation.
The commissioner indicated he would be “extremely comfortable” handling any questions about this decision in Senate estimates hearings.
Tasmanian Senator and ex-Employment Minister Eric Abetz, who is always happy to comment on his former portfolio, has defended the commissioner’s actions.
“It is perfectly reasonable that a government agency would seek to reflect government policy. 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,” Abetz, who was the relevant minister at the time, said in a statement today.
“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.”
The case is before the Federal Court this Friday, and the Financial Review reports Hadgkiss could face a penalty of up to $12,600.