Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507

The appeal was allowed because the primary judge erred in finding that the appellant union organisers had engaged in homophobic conduct, there being no evidence or pleaded facts to support that finding, and procedural fairness was denied by not allowing parties to address the meaning of the term in question. The erroneous findings affected the exercise of discretion as to penalty and required the penalties to be reassessed by the Court. Penalties of $7,000 were imposed on each of the second and third appellants, and the first appellant was ordered to pay $50,000 for each of its two contraventions, taking into account general and specific deterrence, the recidivism of the first appellant,...

Parties
First Appellant: Construction, Forestry, Maritime, Mining and Energy Union; Second Appellant: Andrew Blakeley; Third Appellant: Luke Gibson; Respondent: Fair Work Ombudsman
Jurisdiction
Australia
Judgment Date
25 May 2023
Procedural Posture
Appeal / Judgment on Appeal and Re Determination of Penalty
Outcome
Appeal allowed. Declarations and penalties of the primary judge set aside and varied. New penalties imposed.
Legal Topics
Civil Penalties, Right of Entry, Workplace Conduct, Appeals, Procedural Fairness, Penalty Determination
Employment and Industrial Relations Civil Penalties Right of Entry Workplace Conduct Appeals Procedural Fairness Penalty Determination

Case Brief

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Parties

Construction, Forestry, Maritime, Mining and Energy Union

First Appellant

Andrew Blakeley

Second Appellant

Luke Gibson

Third Appellant

Fair Work Ombudsman

Respondent

Procedural Posture

Appeal / Judgment on Appeal and Re Determination of Penalty

Legal Issues

  1. 1 Whether the primary judge erred in finding homophobic conduct by the second and third appellants
  2. 2 Whether procedural fairness was denied in the findings regarding homophobic conduct
  3. 3 Appropriate penalties for admitted contraventions of s 500 of the Fair Work Act 2009 (Cth)

Ratio Decidendi

The appeal was allowed because the primary judge erred in finding that the appellant union organisers had engaged in homophobic conduct, there being no evidence or pleaded facts to support that finding, and procedural fairness was denied by not allowing parties to address the meaning of the term in question. The erroneous findings affected the exercise of discretion as to penalty and required the penalties to be reassessed by the Court. Penalties of $7,000 were imposed on each of the second and third appellants, and the first appellant was ordered to pay $50,000 for each of its two contraventions, taking into account general and specific deterrence, the recidivism of the first appellant,...

Court Disposition

Appeal allowed. Declarations and penalties of the primary judge set aside and varied. New penalties imposed.

Orders

  • The appeal is allowed.
  • Declaration 1(f) and 2(c) of the Federal Circuit and Family Court of Australia (Div 2) on 28 July 2022 are varied as set out in paragraphs 2 and 3.