The Construction, Forestry, Mining and Energy Union is pushing to recuse a senior member of the Fair Work Commission from deciding cases after he shared a Twitter post that “shamed” the militant union and Bill Shorten.
Fair Work senior deputy president Jonathan Hamberger retweeted a post by then-employment minister Michaelia Cash in March 2016 that referenced the headline “CFMEU notches up 100 members before court” and denounced Labor for taking CFMEU donations.
The CFMEU’s Queensland branch has used the retweet, since deleted, to call on Mr Hamberger to recuse himself from determining whether its officials are “fit and proper persons” to enter work sites on grounds of apprehended bias.
The senior deputy president, a long-term Howard government appointee, is understood to have recused himself from two other cases over the retweet, which has not previously been reported.
The retweet featured a large image of Bill Shorten in cricket gear and the words “Century of Shame” in capitals, with “Shame” underlined.
Ms Cash wrote above the image that “Labor gets millions in donations from the CFMEU”.
“That’s why they’re against restoring the [Australian Building and Construction Commission]. Bring back the #ABCC.”
Mr Hamberger is an otherwise conservative tweeter, racking up just 35 tweets, including on cricket, since joining the social media website in August 2013.
‘Condemnation’ of CFMEU
In a hearing this month, CFMEU barrister Robert Reitano argued the tweet expressed antithetical sentiments towards the CFMEU and meant Mr Hamberger could be biased in deciding union matters.
He said the link between the CFMEU, ALP funding and Mr Shorten was a “secondary and remote” issue.
“The main aspect of the matter is the – as I say, the condemnation of the CFMEU by reference to the word ‘shame’.”
Mr Reitano conceded there were difficulties in assuming what a hypothetical “fair-minded observer”, the test for apprehended bias, might think of the retweet.
Such an observer, he said, could hold the “political” view that the ABCC was an appropriate means of dealing with the CFMEU’s conduct and that the union deserved shame.
But he pointed out that Mr Hamberger’s previous recusal “tilts the scales” as it implied that he accepted criticism he could not bring an independent mind to such cases.
What is a retweet?
The case raises issues not previously considered by either the courts or the commission, specifically the nature of a retweet.
Mr Reitano, who confessed he was “not a Twitter person”, argued a retweet presumes the “retweeter” adopts or shares the sentiments of the tweet it is reposting.
“That is the common understanding of what that means.”
He said, on Twitter, a retweet was “not just a question of pressing a button”. Rather, “you need to press a button twice”.
Mr Reitano said the tweet was relevant to the kind of judgment required in right of entry cases.
“The type of process that your Honour’s engaging in is an evaluative judgment of questions, of whether CFMEU (who your Honour has said should be shamed) officials are people that your Honour would be satisfied were fit and proper to hold an entry permit.”
Mr Hamberger has reserved his decision.
The CFMEU declined to comment on the matter.