A federal magistrate has rubbished an Australian Building and Construction Commission case, brought against two union officials for swearing, as a “waste of public funds”.

In a controversial prosecution under the Fair Work Act, the ABCC alleged that two NSW Construction, Forestry, Mining and Energy Union organisers, Tom Mitchell and Tony Papaconstuntinos, had “abused” two managers from Cavill Properties while undertaking a safety inspection last June.

The mild-mannered Mitchell apparently told a Cavill manager, “Who the f-ck are you to ask me a question? Stand there and take your f-cking notes and shut the f-ck up.”

The original charges of assault were dropped, but one charge of “improper conduct”, or swearing, against Mitchell was pursued.

In his judgment this week, Federal Magistrate Kenneth Raphael imposed penalties of $5000 on the CFMEU, $5000 on the CFMEU NSW, and $2500 on Mitchell, who was stripped of his right to enter building sites for 12 months.

“There is nothing to be gained by aggression or intemperance, no worker’s safety is enhanced in this manner,” Raphael ruled. And the union agreed to the penalties because under the Act it had little option.

But the full court transcript reveals that Raphael had decidedly mixed feelings about the charges and the strung out case’s cost to the taxpayer. In a robust exchange with the counsel for the defence, he offered his considered take:

“I think waste of public funds. You’re sitting in court for days and days and days. Seems to me to be something that the court could make some critical observations about. Even if you’re guilty,” he said.

He then appealed to counsel as an everyday taxpayer, suggesting that a few choice words in the heat of battle shouldn’t be sufficient to attract the court’s attention:

“You’re being supported by my money, and you’re here for four or five days over this sort of stuff. I mean, we all just listened to that tape. I mean, I have to tell you that I didn’t hear a huge amount of aggressiveness. I don’t think that Mr Mitchell’s conduct during it was perfect, but I don’t think the eyewitness was aggressive, and I mean, what are we doing?”

Later on, Raphael had this to offer on the tit-for-tat that may have stretched into 2012:

“I mean, if this case goes on this week, do you know when you are coming back? Next year. Do you understand that? All right. We have had one witness today about a case about whether a bloke took his hat off or didn’t take his hat off and whether he said, f-ck off, to somebody or he didnt say, f-ck off, to somebody. One wonders. One wonders about the motive for all of this.”

NSW CFMEU state secretary Mal Tulloch slammed the whole charade when contacted by Crikey this morning.

“The judge confirmed what we’ve always known, that the ABCC is an absolute waste of taxpayer’s money. They have been given millions to try and change the culture of the building industry and the best they can do is to ping two of our union officials for swearing. It’s a disgrace and the government should abolish it now.”

Still, the commission seems determined to celebrate the ruling as a stern warning for other potty-mouthed union members.

ABCC chief and former ALP member Leigh Johns issued a straight-faced statement this week, celebrating the ruling and claiming Mitchell’s language “would not be accepted in a public place or any other workplace, it will not be accepted in the building and construction industry.”

It seems the ABCC’s view of the world is spreading. Under laws introduced in the Victorian parliament in June, Victoria Police will gain the power to issue $240 fines for cursing in public.

*Read the full transcript here.

Peter Fray

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