The Federal Circuit and Family Court has penalised the CFMMEU and two of its officials $151,200 following right of entry breaches on the $5.4 billion Queensland Cross River Rail project.
The 10.2 kilometre rail line between Dutton Park and Bowen Hills is Queensland’s largest infrastructure project aimed at improving public transport and growing jobs.
The Court found that, on 15 April 2020, whilst at the Boggo Road site, CFMMEU official Andrew Blakeley aggressively “chested” a representative of the site occupier by walking towards him with his (Blakeley’s) chest puffed and arms bent at the elbows in an imposing and aggressive stance and later stood in the path of a truck to delay it from proceeding down a road and refused requests to leave the area.
Judge Vasta said that he had “absolutely no doubt” that Mr Gibson calling the safety advisor a ‘pumpkin eater’ was “meant as a homophobic slur”. In support of that finding, Judge Vasta referred to a subsequent offensive comment made by Mr Blakeley to the safety advisor that suggested that he was trying to look at Mr Blakeley’s penis whilst in a toilet block.
The conduct of the CFMMEU organisers on that day contravened the right of entry provisions in the Fair Work Act 2009. In penalising Blakeley and Gibson $12,600 respectively, the Court ordered that they must pay the penalties personally. This means that they are unable to seek or receive any contribution from the CFMMEU. In determining the CFMMEU’s penalty Judge Vasta said:
“The antecedents of the [CFMMEU] are notorious. I have previously described them as the “greatest recidivist offenders in Australian corporate history” and many other judges have also noted their infamous past.
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 [CFMMEU] who will, as I remarked during the hearing, regard such a sum as “chump change”. But this is the only tool that the Parliament has given to the Court to deter such contraventions. 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 FW Act or whether they are content with the status quo.”
Judge Vasta said that in relation to the CFMMEU officials:
“[Mr Blakeley and Mr Gibson] were visitors and were asked to tell the occupier who they were and why they were there. There is no excuse for the failure to do so. The belligerent response and subsequent behaviour of [Mr Blakeley and Mr Gibson] speaks of a sense of entitlement and a recalcitrance to behaving as ordinary decent human beings.
All of this ignores the blatant homophobic slur uttered by [Mr Gibson] to [safety advisor] and the subsequent homophobic slur to [safety advisor] by [Mr Blakeley]. This behaviour is not just “improper”; it is illustrative of a bullying and demeaning of [safety advisor] that simply cannot be tolerated in a civilised society.
What has occurred is that [Mr Blakeley and Mr Gibson] have arrived at a worksite and decided to do anything and everything to frustrate and annoy [safety advisor], [senior supervisor] and [industrial relations advisor] or any other representative of the occupier….
They had absolutely no regard for anyone else on the site and acted as if their desires trumped the safety and good order of the worksite…
The behaviour of uttering quite disgusting homophobic slurs has been consigned to the chapters of the dark history of Australia where the hurling of vitriolic insults which targeted a person’s sexuality, race or religion were unfortunately tolerated as if such belittling and bullying was something that a victim just “had to cop”. Those days are thankfully gone 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 s 512 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.”
Australian Building and Construction Commissioner Stephen McBurney said:
“Regrettably, this is a familiar pattern of behaviour. Flagrant abuse, no contrition, no remorse, and a deafening silence from the CFMMEU leadership who will not sanction nor condemn the unlawful conduct of its officials.
His Honour has included observations in the judgment regarding the CEPU to the effect that they represent their members “… in a lawful and responsible way” which was in contrast to the CFMMEU which “treats contraventions of the [Fair Work Act] as “occupational hazards” in the way it conducts business while transgressions are seen as a “way of life”.”
The comparison of penalties and contraventions for both Unions in ABCC matters is revealing:
Any building industry participant who needs advice or assistance regarding right of entry should contact the ABCC on 1800 003 338.
 Judgments delivered in cases between the ABCC and CFMMEU or CEPU since 2 December 2016