|Issue No 79||24 November 2000|
Reith's Industrial Spy Loses Secret Tape Case
By Bernadette Moloney
In another blow to besieged Workplace Relations Minister Peter Reith, the Federal Court this week dismissed an application by the Employment Advocate, Jonathan Hamberger against the CFMEU and one of its shop stewards over freedom of association issues.
Passing judgement, Justice Marshall stated: "In short Mr Williamson was set up by a highly artificially manufactured device arranged by two people who have a reckless indifference to probity and a propensity to give inconsistent and unacceptable evidence under oath ... The conversation was an orchestrated confrontation engineered by Mr Lyten to deliberately provoke a dispute which would otherwise have, in all likelihood, not occurred."
The Employment Advocate was acting on behalf of John Lyton, who secretly taped a conversation with the shop steward at a Melbourne building site in February 1999. The Advocate claimed that the taped conversation proved the union and the shop steward had breached the Workplace Relations Act's freedom of association provisions and sought fines against the union and the shop steward.
In dismissing the application, Justice Marshall refused to admit the tape into evidence, saying that Lyten and his "co-conspirator" Carson had improperly obtained the tape recording.
The Federal Court also criticised the Office of the Employment Advocate for not foreseeing this might occur after a visit by Mr Lyten and CPC director Mr Carson to the OEA.
"There is no doubt in my mind that it should have been reasonably foreseeable to Mr Hanley that Mr Lyten would attempt to record any conversation with Mr Williamson. As Mr Lyten said, Mr Hanley stressed upon him and Mr Carson Snr the need to have a clear record of what transpired. What better way to do that than to tape the conversation," said Justice Marshall.
The Court also described as "unfortunate" the fact that the Advocate's efforts to obtain an injuction early in 1999 "was made without all known factual issues being disclosed to the Court."
Welcoming the decision, CFMEU Construction Division National Secretary John Sutton said "The Federal Court's decision vindicates the union and its delegate. Workers have a right to discuss union membership without fear of having their conversations taped for use in court hearings."
"In this country it is unacceptable for the government to subsidise people who tell lies, provoke confrontation and use secret recording devices to set up workers. It is a scandal that taxpayers' money has been used to carry out a witch hunt straight out of the McCarthy era," Mr Sutton said.
"Reith should resign and the Employment Advocate's Office should be abolished," said Mr Sutton
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Last Modified: 15 Nov 2005