Secret documents from inside the Australian Building and Construction Commission (ABCC) reveal staff were warned against directing industry bodies and supporters to help the Morrison government win the 2022 federal election.
Talking points told staff at the controversial union-busting watchdog how to answer questions like: "What can we do to help maintain the ABCC and the important work you do?"
Before the May 21 vote, Labor vowed to shut the body and it released costings for its election promises.
With Labor huge favourites to win the federal poll, the commitment spelled out the commission's death notice in black and white.
Listed in the savings, $28 million from the commission in 2022-23, and $36 million for each of the three years afterwards.
"Woah that makes it real," wrote deputy commissioner Jill Jepson.
"The timing is around August. They must assume a very quick transition and one has to wonder whether that is possible."
An unnamed staffer reported the news to corporate executive director Sonia Pase.
"On paper, they are anticipating abolishing/defunding at earliest opportunity."
ABCC hits back
Speaking after the release of the documents — obtained using the Freedom of Information (FOI) process — commissioner Stephen McBurney defended his record and his staff.
"I've tried to stay out of the politics for as long as I've been in this job," Mr McBurney said.
"It's very difficult in our space because we're always the subject of political debate. But I just stand on my track record. I've been up-front and transparent with all our stakeholders."
A key focus of the ABCC has been the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU), particularly its construction division. Most of the commission's legal actions have been against that union.
CFMMEU national construction secretary Dave Noonan said the body was set up "to attack trade unions" used as "a political stalking horse by the Coalition".
He accused the ABCC of trumping up claims in documents initially lodged with courts, before withdrawing the most scandalous accusations when the case begins.
"So you're seeing big headlines, you're seeing very serious allegations made about the union, not [borne] out by the facts, and the matters get thrown out of court but the mud sticks."
Budget? $0
As the internal documents show, commission staff knew they were on borrowed time. Whether by legislation or defunding, the ABCC was pretty much dead.
This would be done with a "mini‐budget" or by bringing the Mid-Year Economic and Fiscal Outlook (MYEFO) updates forward, the staffer suggested in an email.
"The indicative savings indicates saving around 77 per cent in 22-23 year. My understanding is that they need to repeal legislation but they can reduce resourcing to us."
The figure of $28 million, from an annual budget of $36 million suggests $8 million in costs for shutting the agency.
Labor's costings had no money allocated for the commission from 2023 onwards.
Ms Pase warned of staff turmoil as the news broke out.
"I'm not distributing further at this stage as I don't want to create anxiety when we don't actually have an outcome," she wrote to unnamed staff.
"But I would appreciate any feedback/comments you have."
'This industry needs regulation'
A former organised crime investigator — who also has experience of umpiring more than 400 AFL games — Mr McBurney is used to hard calls.
He was appointed in 2018 to run the watchdog and reviled by Labor for its laser focus on the behaviour of construction unions.
Mr McBurney arrived after the departure of commission boss Nigel Hadkiss, who admitted to breaching the Fair Work Act a year before court documents revealed he had.
Labor threatened to shut the watchdog in 2019, but it lost the election.
It reaffirmed the promise in 2022. As the poll neared, Labor was considered a strong favourite to win government.
Campaign warning
Days out from election day, the commission created "talking points" for staff to respond to questions about the upcoming election and the agency's future.
At the top, a clear warning.
"Staff members should not speculate or provide comment on potential election outcomes or consequences of a change in government, whether formally, informally or 'off the record'."
The director of communications — whose name was redacted in the emails seen by the ABC — said the documents offered "stand-in lines to help staff respond to politically charged and difficult questions".
Included in the "question and answers" distributed to staff was a warning not to actively help people seeking to stop Labor winning the election.
Q: What can we do to help maintain the ABCC and the important work you do?
A: That is a question that's best directed to your industry body. As a federal public servant, my role is to serve the government of the day and to remain impartial and apolitical.
The document went on, telling staff not to "speculate" on what would happen, given Labor's promise to abolish the commission.
Q: What do you think the chances are of the Coalition/ALP getting into power?
A: I am not able to answer that question. As a representative of the ABCC, and a federal public servant, my role is to serve the government of the day and to remain impartial and apolitical.
Mr McBurney said the talking points were provided to all staff, including call-centre operators and inspectors in the field. They were also placed on the commission's internal website (intranet).
"So, we were very honest with our staff. We said that, until the election result is known, we continue to serve the government of the day."
Controversial meetings
The information distributed to staff on May 19 is notable.
Unions have claimed that commissioner Stephen McBurney — who knew his job would be abolished if Labor won the election — held a "strategic" meeting with supportive industry association Master Builders Australia ahead of the 2022 election.
FOI requests from the Construction Forestry Maritime Mining and Energy Union (CFMMEU) — the union most targeted by the commission — revealed Mr McBurney met with senior Master Builders Australia staff, including chief executive Denita Wawn, on February 17.
As reported in The Australian, they discussed "key upcoming issues" including the "forthcoming election" and the "implications for the building code".
There was also a meeting in Tasmania in April, where the parties discussed the "MBA election campaign" that supported retaining the ABCC and "how it would be similar to the last election running with the union bullying theme".
The lobby group funded a national advertising campaign against Labor's plan to scrap the ABCC and released research claiming the ABCC's abolition would cost the economy $50 billion.
In a statement to the newspaper, Mr McBurney said the February meeting with the Masters Builders was a "stakeholder engagement meeting" and that the commission was a "very transparent agency".
The union said it had unsuccessfully sought documents about interactions between the commission and Master Builders Australia ahead of the 2019 election.
No MBA conspiracy
Speaking to the ABC, Mr McBurney said he understood how such meetings might look, but there was no conspiracy.
"I can understand why that allegation has been put against me and against us," he said.
"But, look, we've been transparent. We've released the documents that were sought. Those documents speak for themselves."
He said the advice to Master Builders Australia was the same as to other groups: information about how the commission would operate in the caretaker period.
"The second part of it is, why would the MBA speak to me about it?" he asked rhetorically.
"It's a matter for them what they do — what ads they run, how they campaign — there is no benefit or reason for them to have those discussions with me and to raise those issues with me.
"It would be an inappropriate use of taxpayers funds, and we would not, and I cannot, expend taxpayer's funds for political purposes. I'm bound by my own Act, and I must comply with my Act."
That does not wash with the CFMMEU's Mr Noonan.
"It's clear to us that there was a lot of coordination between the ABCC and the Master Builders," he argued.
"What you've got, in our view, is a highly funded government agency — with very, very serious powers — participating in the election campaign, trying to get the Liberal Party re-elected."
The union has made a documentary, called Lethal Bias, that it is screening at Parliament House tonight before being released more widely, about what it sees as the impact of the ABCC.
Where to now?
Labor is committed to shutting the watchdog.
Workplace Relations Minister Tony Burke told the ABC's Insiders program that the commission's powers had already been "pulled back" and accused it of policing "ridiculous rules" no other industry was subject to.
"We will no longer be spending taxpayers' money determining what sticker someone's allowed to put on their helmet, whether or not a safety sign has to be pulled down because it's got a union logo in the bottom corner, or what flag might be flying at a building site."
Mr Burke said the ABCC's record proved it had been "more concerned with pursuing and punishing workers than tackling rampant wage theft and compromised safety standards".
Mr McBurney contended that only once case was brought about union insignia on a site, and most were about potential breaches of the Fair Work Act around wages, protections against discrimination, freedom of association (such as to not be part of the union on a site) and coercion.
The majority of the 38 actions before the court were about breaches of the Act, he said.
"It also is the area that has the most egregious conduct, the types of threats, abuse and intimidation that have been reported on at length in the Federal Court."
Mr McBurney welcomed a government announcement that some functions of the commission would move to other agencies.
"This industry needs regulation and, even with the repeal of our Act, there is significant regulation that needs to be policed."
How you know this
The documents in this report were obtained using the Freedom of Information (FOI) process.
FOI applications give access to information about you, or topics you are interested in, held inside government departments or agencies. Search "FOI" on the website of any department to find out more.
Generally, you can email your application. Costs may apply.
In its final decision, the commission granted the ABC full access to one document and partial access to seven documents.
