Hadgkiss reck­less­ness ‘of very high­est or­der’

The CFMEU scored a pal­pa­ble hit against Nigel Hadgkiss, mak­ing his po­si­tion un­ten­able

The Weekend Australian - - THE NATION - EMILY RITCHIE

For­mer Aus­tralian build­ing and con­struc­tion com­mis­sioner Nigel Hadgkiss’s wil­ful omis­sion of changes to in­dus­try laws on the agency’s web­site con­sti­tutes “reck­less­ness of the very high­est or­der,” the Fed­eral Court of Aus­tralia heard yes­ter­day.

Mr Hadgkiss, who was forced to re­sign from his $426,160-a-year po­si­tion ear­lier this week by Mal­colm Turn­bull and var­i­ous union fig­ure­heads, has ad­mit­ted to con­tra­ven­ing the Fair Work Act, ig­nor­ing staff con­cerns and not read­ing rel­e­vant leg­is­la­tion re­gard­ing changes to right-of-en­try pro­vi­sions.

Syd­ney silk John Agius, rep­re­sent­ing the Con­struc­tion Forestry Min­ing and En­ergy Union in the civil penalty hear­ing be­fore judge Berna Col­lier, told the court Mr Hadgkiss know­ingly al­lowed in­cor­rect le­gal ad­vice to re­main on the ABCC web­site for 2½ years af­ter de­cid­ing in De­cem­ber 2013 not to pub­lish rel­e­vant amend­ments ben­e­fi­cial to unions.

“He’s ad­mit­ted ... he never read the leg­is­la­tion or the ma­te­rial … on the web­site, yet he made the de­ci­sion to can what he was be­ing told was amend­ments to the web­site to re­flect the changes to the law,” Mr Agius said.

“For an in­dus­try reg­u­la­tor with statu­tory obli­ga­tions which re­quired him to dis­trib­ute ac­cu­rate in­for­ma­tion to di­rect his staff not to amend the web­site ... is reck­less­ness of the very high­est or­der.”

The right-of-en­try changes were passed by the pre­vi­ous La­bor gov­ern­ment and ap­plied from 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, an em­ployer was no longer au­tho­rised to give such a re­quest.

Ac­cord­ing to the state­ment of facts, Mr Hadgkiss told his staff in 2013 the newly elected Coali­tion gov­ern­ment in­tended to re­peal the changes so they did not need to be pub­lished. They were never re­pealed and re­mained on the web­site un­til mid-2016.

On Jan­uary 9, 2014, an email ti­tled “New ROE law — what to com­mu­ni­cate to In­dus­try” was dis­trib­uted to ABCC staff and state di­rec­tors by stake­holder en­gage­ment di­rec­tor Adam Copp, with Mr Hadgkiss’s ap­proval.

The memo ex­plic­itly high­lighted the gov­ern­ment’s in­ten­tion to roll back the changes and that pre­sen­ta­tions given by ABCC staff “should not in­clude slides re­gard­ing the new pro­vi­sions.”

ABCC ex­ec­u­tive di­rec­tor Jeff Radisch re­sponded to the email, warn­ing the agency was “run­ning some­thing of a po­lit­i­cal and in­dus­trial risk by with­hold­ing info on the law as it cur­rently stands”.

Mr Copp said in re­sponse he shared the con­cerns but “Nigel was adamant he didn’t want us to change any­thing” and was “ex­tremely com­fort­able han­dling it in es­ti­mates or the me­dia”.

Mr Agius also ar­gued Mr Hadgkiss spoke hyp­o­crit­i­cally in a speech he gave to the Vic­to­rian arm of the Mas­ter Builders As­so­ci­a­tion in May 2014, when the re­vised right-of-en­try laws were in force but still not up­dated on the ABCC site.

Jus­tice Col­lier ad­journed the court. She is yet to hand down a de­ci­sion on a penalty, which could be a fine up to $12,000.

Six days be­fore Christ­mas in 2013, Nigel Hadgkiss gave the in­struc­tions that would end his pub­lic ser­vice ca­reer.

It was 3pm on a Thurs­day, and while many work­ers across Mel­bourne were wind­ing down for their sum­mer break, Hadgkiss was inside the of­fices of the Fair Work Build­ing and Con­struc­tion agency meet­ing staff mem­bers, Matthew Hurst and Tone Doyle.

Hadgkiss had been the agency’s di­rec­tor for just 65 days, ap­pointed by Eric Abetz, the em­ploy­ment min­is­ter in Tony Ab­bott’s first cabi­net.

Abetz had am­bi­tions for Hadgkiss and his agency. While the ghouls of Work Choices dic­tated a pub­licly min­i­mal­ist work­place re­la­tions agenda, Abetz was en­thu­si­as­tic about Hadgkiss ag­gres­sively pur­su­ing the Coali­tion’s bete noire, the Con­struc­tion Forestry Min­ing and En­ergy Union.

But as Hadgkiss sat down with Hurst and Doyle, he had to deal with an is­sue that staff had been work­ing on for more than three months.

On Jan­uary 1, changes passed by the pre­vi­ous La­bor gov­ern­ment to fed­eral right-of-en­try laws were due to take ef­fect.

An em­ployer would no longer be able to tell a union of­fi­cial where site meet­ings with em­ploy­ees could be held. Union rep­re­sen­ta­tives would be able to meet work­ers on their meal breaks in their lunch rooms.

Abetz op­posed the changes and vowed to re­peal them when par­lia­ment re­sumed the fol­low­ing Fe­bru­ary. He failed and they re­main the law to­day.

Since Au­gust that year, FWBC staff had been pre­par­ing up­dated stake­holder ma­te­rial, in­clud­ing a fact sheet, poster and pocket guide, to re­flect La­bor’s amend­ments.

But Hadgkiss told Hurst and Doyle that no changes should be made to the ma­te­rial, a di­rec­tive that, more than 3½ years later, would lead him to ad­mit that he broke the law. As a con­se­quence, Mal­colm Turn­bull and Abetz’s suc­ces­sor, Michaelia Cash, deemed his po­si­tion un­ten­able.

In an ex­traor­di­nary 25-page agreed state­ment ten­dered in the Fed­eral Court this week, Hadgkiss ad­mit­ted he had con­tra­vened the Fair Work Act by reck­lessly mis­rep­re­sent­ing union rights to em­ploy­ers for more than two years.

The ma­te­rial was cor­rected only af­ter the CFMEU ini­ti­ated le­gal ac­tion last year.

In the state­ment, Hadgkiss ad­mit­ted he had not read the fact sheet, poster or pocket guide un­til re­view­ing them for the pur­pose of the le­gal pro­ceed­ings.

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

Ra­tion­al­is­ing his di­rec­tive, Hadgkiss said he be­lieved Abetz was go­ing to roll back La­bor’s changes, which would have en­tailed re­vis­ing the pre­pared ma­te­rial.

He claimed the right-ofen­try changes were not rel­e­vant to the con­struc­tion sec­tor as work­ers gen­er­ally met union rep­re­sen­ta­tives in rooms where em­ploy­ees had their meals and breaks, or in carparks.

How­ever, the re­al­ity was that em­ploy­ers would of­ten pre­vent lunch-room meet­ings from oc­cur­ring.

Hurst left the De­cem­ber 19 meet­ing and emailed the agency’s dig­i­tal co-or­di­na­tor, Wil­liam Part­ing­tonGard­ner, telling him “Nigel canned any changes to ROE (right-of-en­try) in­for­ma­tion so we need to re­in­state it to what it was (if any­thing has changed)”.

The next day, Hadgkiss asked Adam Copp, the agency’s di­rec­tor of stake­holder en­gage­ment, to draft an in­tranet ar­ti­cle to in­form FWBC staff and in­spec­tors about the La­bor amend­ments.

The ar­ti­cle, later ap­proved by Hadgkiss, told in­spec­tors they should pro­vide ad­vice on the new pro­vi­sions only “if specif­i­cally asked by a build­ing in­dus­try par­tic­i­pant”.

“Pre­sen­ta­tions should not in­clude slides re­gard­ing the new pro­vi­sions,’’ it said.

Af­ter read­ing the ar­ti­cle, Jeff Ra­disich, ex­ec­u­tive di­rec­tor of the agency’s north­west op­er­a­tions, emailed Copp at 6.40pm that night to ex­press con­cern.

“Do we have any idea when the roll­back will oc­cur? I thought we would be stuck with these pro­vi­sions un­til the Se­nate changeover in July. 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.”

Copp re­sponded at 6.19am the next day, say­ing “to be hon­est, I do share your con­cerns and talked to Nigel about it last year”.

He added: “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.”

Dur­ing the next two years, Hadgkiss launched many pro­ceed­ings against the CFMEU for al­leged right-of-en­try breaches and gave speeches to in­dus­try fo­rums where he urged em­ploy­ers to “know the right-of-en­try laws”. Posters with in­cor­rect in­for­ma­tion were put up in sev­eral work­places.

Hadgkiss even­tu­ally gave di­rec­tions last July for the fact sheet, poster and pocket guide to be with­drawn, but only af­ter CFMEU con­struc­tion sec­re­tary Dave Noo­nan wrote to him, say­ing they mis­rep­re­sented the re­quire­ments of the Fair Work Act.

The ad­mis­sions, staff con­cerns and time­line are laid out in the Hadgkiss state­ment. When their con­tents were re­vealed on Tues­day af­ter­noon, Noo­nan de­manded Hadgkiss re­sign or be sacked.

Abetz, now a back­bencher, claimed the calls were “hy­per­bole”, ac­cus­ing unions of at­tempted char­ac­ter as­sas­si­na­tion.

But within hours se­nior gov­ern­ment fig­ures had de­cided Hadgkiss had to go.

On Tues­day night, Hadgkiss was told by Aus­tralian Pub­lic Ser- vice Com­mis­sioner John Lloyd in a se­ries of phone con­ver­sa­tions that it was the view of se­nior mem­bers of the gov­ern­ment that he had to quit.

Turn­bull and Cash sup­ported the po­si­tion, and Lloyd, a for­mer ABCC chief, was charged by the gov­ern­ment with telling Hadgkiss he must re­sign.

Gov­ern­ment fig­ures said the most damn­ing of the ad­mis­sions was that Hadgkiss had made a de­lib­er­ate de­ci­sion not to up­date ma­te­rial to re­flect the law, de­spite staff rais­ing con­cerns with him di­rectly.

“The law had changed and he, as the agency head, made a con­scious de­ci­sion not to ac­knowl­edge that by chang­ing the web­site,’’ one se­nior source says. “Given his ad­mis­sions, it was ob­vi­ous his po­si­tion was un­ten­able.”

Gov­ern­ment fig­ures say his res­ig­na­tion was em­bar­rass­ing for the Coali­tion, par­tic­u­larly given his ad­mis­sions were the re­sult of le­gal ac­tion ini­ti­ated by the CFMEU.

But sources say the gov­ern­ment be­lieves Hadgkiss would have se­ri­ously un­der­mined the Coali­tion’s con­tin­ued po­lit­i­cal as­saults on the “law-break­ing” CFMEU had he stayed in the job.

“Every time we went af­ter them for break­ing the law, they would have re­sponded, ‘So does your reg­u­la­tor’,’’ one gov­ern­ment fig­ure says. “It would have com­pletely blunted us.”

Cash did not an­nounce Hadgkiss’s res­ig­na­tion un­til Wed­nes­day, and only af­ter the Fed­eral Court had handed down a judg­ment im­pos­ing a record $2.4 mil­lion in penal­ties on the CFMEU and its of­fi­cials for an un­law­ful block­ade. Here was Hadgkiss be­ing pre­vailed on to quit by his Coali­tion “friends” as a re­sult of dam­ag­ing ad­mis­sions prompted by CFMEU le­gal ac­tion just as his agency was set to achieve a sig­nif­i­cant court vic­tory against the union.

More­over, the ad­mis­sions were agreed in part be­cause he wanted to avoid the prospect of dam­ag­ing cross-ex­am­i­na­tion in court. In choos­ing this course, he en­sured the end of his pub­lic ser­vice ca­reer. Some close sup­port­ers of Hadgkiss ini­tially be­lieved he could ride out the storm, and later ac­cused se­nior gov­ern­ment fig­ures of pan­ick­ing into mov­ing on him.

But if Cash thought his res­ig­na­tion would end the pres­sure on her, she was wrong. Af­ter telling par­lia­ment on Wed­nes­day she had been aware of Hadgkiss’s be­hav­iour since last Oc­to­ber, she faced in­tense ques­tion­ing over what she knew of his con­duct and when she knew it.

Cash ac­knowl­edged she be­came aware of his al­leged con­duct when the CFMEU joined the com­mon­wealth to the le­gal ac­tion in Oc­to­ber. At that time, she said, the allegations against Hadgkiss were con­tested by him. “It was on Tues­day that Mr Hadgkiss ad­mit­ted to the breach — at that time I be­came aware of the breach,’’ she said.

But sources say that once the com­mon­wealth was joined to pro­ceed­ings in Oc­to­ber, the gov­ern­ment was across the de­tail of the case and re­ceived a copy of the de­fence filed by Hadgkiss in Novem­ber, when he ini­tially de­nied the claims. “They knew what was go­ing on,” one source says.

ACTU pres­i­dent Ged Kear­ney says Cash should re­sign be­cause she sub­se­quently “ap­pointed” Hadgkiss to move from the FWBC to the Aus­tralian Build­ing and Con­struc­tion Com­mis­sion de­spite know­ing there were se­ri­ous allegations against him.

Cash says she did not ap­point Hadgkiss to the ABCC and there was no cabi­net ap­point­ment process. Her spokesman says the ABCC leg­is­la­tion pre­scribed that the head of the FWBC in­spec­torate au­to­mat­i­cally be­came the head of the ABCC.

But Kear­ney says Cash is in an “un­ten­able sit­u­a­tion”.

“She has praised Mr Hadgkiss de­spite what he has done, and add to that she is quite happy to en­sure his le­gal fees are paid,” she says. “I think the Aus­tralian peo­ple would cer­tainly have lost all con­fi­dence in her. She has spent two years at­tack­ing peo­ple and unions, and she has never been held to ac­count for that. I’m pretty sure that peo­ple have no faith in her and this gov­ern­ment, par­tic­u­larly now when they see how she has con­doned the be­hav­iour of the head of the ABCC.”

Dur­ing the next two years, Hadgkiss (be­low) launched many pro­ceed­ings against the CFMEU

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