05 July 2015Court fines CFMEU and official $24,000 after official racially abuses site rep

The Federal Court has penalised the CFMEU $20,000 after one of its officials racially abused a site representative on a major WA construction site.  The Court also fined CFMEU delegate Bradley Upton $4000 for what the Court described as “disgraceful behaviour”.

Mr Upton made “obscene remarks” to one site representative and told another to hit him after he became agitated about the meeting room assigned for discussions with workers. When Mr Upton visited the site a second time, he walked into an out of bounds area of the project, despite being told that he was not permitted anywhere other than the meeting room.

During his first visit to the site, when the first site representative told him that if he had issues with the room, he should raise it with Fair Work Australia, Mr Upton replied “That’s the AWU [Australian Workers Union] way; we don’t do things that way. We do things the f**king CFMEU way.”

Mr Upton said to the second site representative “Is this s**thole acceptable to you? Is this s**thole good for you f**king Americans? This is not f**king America. You think you can treat us like s**t, you f**king Americans. Australian’s won’t stand for this. You f**king Americans can’t push us around like we’re pieces of s**t. We won’t put up with you f**king American’s here, not here”. Standing within a metre of the second site representative, Mr Upton said “You want to hit me? Go ahead and hit me, you f**king American. Come on and hit me you f**king American. Hit me, go ahead.”

The Court praised the site representative for not responding to Mr Upton’s challenges to hit him “It would not have been surprising, in the circumstances, if [the site representative] had hit Upton. However, he did not respond to the challenges, turned his back on Upton and walked away. Upton then followed him. [The site representative’s] exercise of self-control was commendable and stands in stark relief against the lack of it displayed by Upton. I regard Upton’s conduct as deplorable particularly so for someone acting in his official capacity…I regard it as a serious contravention.  It is the kind of contravention which could so easily have resulted in actual violence. The language used as well as being repeatedly obscene, had a particularly nasty racist overtone. This is a case which calls for strong deterrent penalty, both specific and general,” the Court said.

“The CFMEU’s long history of its officials conducting themselves unlawfully involving the very kind of conduct in which Upton engaged on [8 October 2012] calls for a significant component of specific deterrence.”

The Court questioned the CFMEU’s training for right of entry permit holders: “I do not know what this training consists of but whatever it is it needs to be bolstered because history suggests that it is observed in the breach”.

In its judgement the Court raised concerns about Mr Upton’s conduct not being an isolated incident. “There is a history over a number of years of contraventions of industrial laws by CFMEU officials for whom the CFMEU is responsible and which have involved those officials, variously, in using obscene and threatening language, making threats of assaults and in some cases involving scuffles and physical altercation,” the Court said. “The CFMEU has a significant record of non-compliance with the provisions of industrial legislation.”

FWBC Director Nigel Hadgkiss said Mr Upton’s behaviour, which the CFMEU agreed in signed court documents took place, was appalling. “We continue to see the CFMEU and its officials take the law into their own hands. No one is above the law.”

The Courts have to date fined the CFMEU and its affiliates more than $6.1 million in cases brought by the FWBC and its predecessor agencies.

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