Judge laments fine size
A judge has warned there are not enough powers to deter illegal behaviour by CFMEU members.
The Federal Circuit Court has labelled the Construction, Forestry, Maritime, Mining and Energy Union (CFMEU) the “greatest recidivist offenders in Australian corporate history” fining it $151,200 for “disgusting” homophobic slurs and abuse on building sites.
CFMEU officials were found by the court to have aggressively confronted a senior supervisor, blocked a truck, refused requests to leave the area and used homophobic slurs against a safety adviser.
The union official allegedly called the OHS adviser “a pumpkin eater” and suggested he was trying to look at their genitals while in the toilet block at Queensland’s $5.4 billion Cross River Rail project.
Judge Salvatore Vasta said “there is no other ‘appropriate’ penalty that will achieve the deterrent effect necessary other than the imposition of the maximum penalty”.
“I acknowledge that this penalty will still be insufficient to deter the [CFMEU] who will, as I remarked during the hearing, regard such a sum as ‘chump change,’ ” he said.
”But this is the only tool that the parliament has given to the court to deter such contraventions.”
He said, “it is a matter for the Parliament as to whether they wish to give the court sufficient power to actually deter such contraventions of the Fair Work Act or whether they are content with the status quo”.
The call comes days after the Albanese government gutted the industry regulator’s powers.
The government has not responded to the judge's claims that the available penalties are not enough to deter the behaviour.
The government has scrapped a building code that banned restrictive agreement content and regulated certain behaviour on Commonwealth-funded projects. However, the Australian Building and Construction Commission (ABCC) still has powers to prosecute coercion, right-of-entry breaches and unlawful industrial action with penalties of up to $220,000 per breach.
“Under our changes to the ABCC the case could still be brought by the Fair Work Ombudsman (FWO),” a spokesperson said.
“The Albanese Labor government is currently considering the staffing and funding required to enable the FWO to regulate the building and construction industry effectively, following the abolition of the ABCC.”
CFMEU national secretary Dave Noonan described the court ruling as “a bizarre and eccentric decision which is not based on the materials placed before the court”.
“The decision will definitely be appealed and the union is confident in the prospect of a successful outcome,” he said.
“The timing of the decision is interesting to say the least and it should be noted that Judge Vasta has had numerous decisions overturned by appeal courts.”
The court found CFMEU official Andrew Blakely had suggested a safety adviser looked at his penis in a toilet block, and that his fellow union official Luke Gibson referred to the adviser as “Pete, Pete, pumpkin eater”.
The CFMEU defended “pumpkin eater” in court as a reference to a nursery rhyme.
The ABCC did not submit that “pumpkin eater” was a homophobic slur, but Judge Vasta appears to have taken it that way.
“I wish that I did not know what this term actually means because it is so disgusting,” he said.
“But I do know what the term means and given all of the surrounding circumstances (especially the later slur ..., I am in no doubt that this term was uttered by [Mr Gibson] as an insult of the homophobic kind.”
Judge Vasta said “this behaviour is not just ‘improper’; it is illustrative of a bullying and demeaning of [safety adviser] that simply cannot be tolerated in a civilised society”.
He said “disgusting homophobic slurs has been consigned to the chapters of the dark history of Australia” and “only troglodytes would attempt to resurrect them”.
“For [Mr Blakeley and Mr Gibson] (who are supposedly fit and proper persons to hold an entry permit pursuant to s512 of the FW Act) to utter such slurs to bully and belittle a person simply must be deterred by all means available to a court,” he said.