CFMMEU penalty for unlawful conduct reduced

26 May 2023

The Federal Court has reduced penalties against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and two of its organisers for unlawful conduct at a site on the Queensland Cross River Rail project.

In 2020, the Australian Building and Construction Commissioner (ABCC) commenced legal action against the CFMMEU and two of its organisers, Andrew Blakeley and Luke Gibson.

The respondents subsequently admitted that their conduct after entering the Queensland Cross River Rail project at a site on Boggo Road, Brisbane, on 15 April 2020 was improper conduct that breached section 500 of the Fair Work Act.

The right of entry breaches included Mr Blakeley and Mr Gibson making comments at the site.

In 2022, Federal Circuit and Family Court Judge Salvatore Vasta found that some comments made by Mr Blakeley and Mr Gibson on the site amounted to homophobic slurs and imposed a total of $151,200 in penalties, including $126,000 against the CFMMEU, and $12,600 against each of Mr Blakeley and Mr Gibson.

Following an appeal by the CFMMEU and the individuals, during which the FWO conceded certain grounds in respect of the alleged homophobic slurs, Federal Court Justice Wendy Abraham found that the comments did not amount to homophobic slurs, the FWO’s concession was properly made and that the penalties should be reduced.

Justice Abraham said the relevant comment by Mr Blakeley was instead “offensive”, and that Mr Gibson’s relevant comments were “insultingly childish”.

Justice Abraham has reduced the total penalties to $114,000, including $100,000 against the CFMMEU, and $7,000 against each of Mr Blakeley and Mr Gibson.

Under federal legislation, responsibility for the case transferred from the ABCC to the Fair Work Ombudsman in December 2022, after the filing of the appeal.

All building and construction industry employers and employees can seek workplace information, advice and assistance from the Fair Work Ombudsman. Find out more at Important information for the building and construction industry.

Employers and employees can visit or call the Fair Work Infoline on 13 13 94 for free advice and assistance. An interpreter service is available on 13 14 50.

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