CFMEU loses Federal Ct bias claim on Cole

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CFMEU loses Federal Ct bias claim on Cole

Meanwhile, Cole has been granted an eight-week extension on getting his final report to the Federal Government. The report, originally due on 6 December, will now be handed down on 31 January 2003.

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The Federal Court has rejected an attempt by officials of the NSW branch of the construction union to have building industry Royal Commissioner Justice Terence Cole excluded from making findings on matters pertaining to the union in that state.

Some 43 officials from the branch claimed Cole had shown bias against the union in his interim report to federal Workplace Relations Minister Tony Abbott (see 314/2002). They said he should have consulted with it before releasing adverse findings in the report, which led to the setting up of an interim taskforce (see 239/2002).

Federal Court Justice Catherine Branson dismissed their application this morning, rejecting the claim that Cole's interim report had made findings which directly and adversely affected the officials.

She said his findings in that report were of a general nature, drew widely upon evidence from all states, and were not particularised as to individuals. 'The finding could, without disrespect, be summarised as a statement by the commissioner that he has strong reason to suspect that all is not well in the Australian building and construction industry,' she said.

She also rejected claims of bias on Cole's or his Counsel's part and claims that he had formed conclusions he was incapable of altering. Justice Branson said it would be 'unrealistic' to expect Cole not to have gained some general appreciation of practices and conduct by the time of the interim report and said producing a final report four months later would have been 'overwhelming' had he not formed some preliminary views. But these were not detailed findings of fact, she said.

Finally, Justice Branson rejected claims that it was inevitable the applicants would be denied procedural fairness by the Royal Commission. She said individual criticisms of the commission so far were 'insufficiently significant' to be relevant to the court, and said it was not the court's role to oversee the day to day conduct of a Royal Commission.

'Cumulatively, even if made out, they would be inadequate to establish that the applicants, or any of them, have or has been denied procedural fairness,' she said.

CFMEU NSW branch secretary Andrew Ferguson told WorkplaceInfo the decision confirmed that the rule of law and the requirement of natural justice did not apply to a royal commission.

While he said the outcome was 'not unexpected', Ferguson said the union would seek legal advice on the decision and 'if there's legal merit will proceed with an appeal'.

Meanwhile, Cole has been granted an eight-week extension on getting his final report to the Federal Government. The report, originally due on 6 December, will now be handed down on 31 January 2003.

Cole has released five new discussion papers on the building and construction industry this month, on: long service leave; international workplace regulation, reform and productivity; demarcation disputes; productivity; and the law relating to industrial action.

 

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