The union for building and construction workers in Australia has been described as the most persistent law-breaking organisation in the nation’s history.
Handing down penalties of $151,200 to the union and two of its officials following right of entry breaches on the $5.4 billion Queensland Cross River Rail project, Federal Circuit and Family Court Judge Salvatore Vasta last week described the Construction, Forestry, Mining and Energy Union (CFMEU) as ‘the greatest recidivist offenders in Australia’s corporate history’.
Vasta acknowledged that the fine would be insufficient to deter further illegal conduct.
But he said it was up to the Parliament to give courts sufficient tools to weed out illegal behaviour.
“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,” Judge 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 [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.”
The decision followed an incident which occurred on the Boggo Road site as part of the Cross River Rail project that will link Dutton Park in Brisbane’s inner south and Bowen Hills in the city’s inner north-east including 5.9 kilometres of twin tunnels underneath the Brisbane River and the CBD.
On the morning of April 15 in 2000, CFEMU 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.
Blakey later stood in the path of a truck to delay it from proceeding down a road and refused requests to leave the area.
Whilst speaking to a safety advisor, meanwhile, CFMEU Queensland organiser Luke Gibson referred to the man as a ‘pumpkin eater’ and subsequently suggested that the man had been trying to look at Mr Blakeley’s penis in a toilet block.
Judge Vasta said the ‘pumpkin eater’ comment was intended as a homophobic slur.
The court ruled that the conduct of the organisers 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.
The latest judgement came as the new Labor Government has moved to curtail the power of the ABCC and to strip back the Code for the Tendering and Performance of Building Work to a bare minimum.
These moves are a temporary measure as Labor intends to introduce legislation to abolish the ABCC entirely before the end of the year.
Whilst the moves have been welcomed by unions, building industry lobby groups fear that the changes (and ultimately, the abolition of the ABCC) will further encourage lawless behaviour on construction sites.
In the first five years after its reestablishment in 2016, the ABCC completed 100 cases (90 of which resulted in successful prosecutions).
Of these, 74 were against the CFMEU and/or its officials.
Vasta slammed the union’s behaviour – especially the homophobic slur.
“[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,” he wrote.
“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.”
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