The Guardian September 4, 2002


Union wants biased Cole Commission shut down

The CFMEU has won the first round in its battle for Federal Court 
judgements that would effectively shut down the Royal Commission into the 
Building Industry. Justice Wilcox granted leave for the substantive CFMEU 
case, arguing procedural unfairness and bias by Commissioner Terence Cole, 
to be heard in Sydney over the coming week.

The CFMEU sought Federal Court protection in the face of the Commissioner's 
decision to judge the complaints against himself at a hearing in Melbourne 
next Monday.

"We anticipate he will disqualify himself", CFMEU Secretary Andrew Ferguson 
said. "But, if he fails to do the right thing, we will proceed to the 
Federal Court."

Union lawyers are seeking a range of declarations and orders that would 
effectively bar Cole from hearing further evidence or bringing down 
findings in respect to NSW.

Any level of success would make legal history as it would be the first time 
in Australia that a court had over-ridden a Royal Commission.

Cole's first report, handed down on August 5 and acted on with alacrity by 
Workplace Relations Minister Tony Abbott, seems certain to play a central 
role in the challenge. The union is arguing for it to be overturned.

In it, Cole said he was satisfied that evidence demonstrated 15 separate 
illegal or inappropriate activities, including "disregard of the rule of 
law". It included a recommendation that an interim industry taskforce be 
established with an office in Sydney.

That report was delivered before the second session of Sydney hearings 
opened and, according to union lawyers, before Cole had called for, or 
heard, the evidence of their clients.

"The first notice that applicants received that the Commission had issued 
or was issuing a First Report was on August 20", they will argue, "by way 
of a media release from the Minister for Employment and Workplace 
Relations. No submissions were called for or received by the Commission 
from applicants prior to the date of the report."

They take strong exception to Cole's finding that "much of the evidence of 
such conduct is not in dispute".

"In New South Wales the entirety of the evidence presented to the 
Commission by counsel assisting of allegations of inappropriate and 
unlawful conduct is in dispute and evidence has been presented to the 
Commission disputing such evidence", they will argue.

Lawyers are also expected to contend that the decision of Commission 
investigators and counsels assisting, not to interview a single CFMEU 
member prior to producing evidence, was unfair, and to question the whole 
basis on which Cole ran the Sydney hearings.

Star Commission witnesses, Steven and Barbara Strong, seem certain to get 
further attention.

Barbara Strong alleged that CFMEU organiser, Tommy Mitchell, had threatened 
to break her arms and legs; threatened her children; and that he and 
another union official had tried to extort significant sums of money from 
her.

Although eight people either attended or heard the meeting where some of 
these offences were said to have occurred, key elements of the Strong's 
evidence was either contested or not supported by each of the other 
attendees, including employers and sub-contractors.

Despite that, counsel assisting submitted that the Strong should be 
believed and, accordingly, adverse findings made against Mitchell and the 
other union official.

Their demand had barely been lodged when the allegation unwound further.

First, the Strongs who claimed to have been driven from the industry by the 
CFMEU, were found operating a demolition site in Glebe. It was immediately 
closed down by Workcover and the local council because of health and safety 
deficits and their failure to obtain necessary consents.

Then, Telstra records and police files demanded by the CFMEU, raised 
further doubt over the stories.

Counsel Assisting Nicholas Green was backed by Commissioner Cole in his 
refusal to make those records available to the union.

Although Green confirmed the records didn't support allegations levelled by 
Mrs Strong, he indicated he would continue to rely on the bulk of her 
evidence for adverse findings against Mitchell and his associate, Brian 
Fitzpatrick.

The union is taking action under the Administrative Decisions (Judicial 
Review) Act, the Judiciary Act and sections of the Constitution.

Thirty-five officials, organisers and delegates are seeking a range of 
reliefs  from Cole being stood down and his first report overturned, to 
an instruction that he conduct the Commission according to law.

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From Workers OnLine http://workers.labor.net.au

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