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

Federal Court of Australia

Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (Boggo Road Cross River Rail Case) [2023] FCA 507 File number(s): QUD 291 of 2022

Judgment of: ABRAHAM J

Date of judgment: 25 May 2023

Catchwords: INDUSTRIAL LAW – appeal against quantum of penalties – where respondent conceded three grounds of appeal – where primary judge erred in finding homophobic conduct – appeal allowed – redetermination of penalties – where conduct was deliberate and churlish – where discount for utilitarian value of admissions and co-operation – where second and third appellants involved in other contraventions – where first appellant is a recidivist offender – where first appellant is large and well-resourced – where revocation of second and third appellants' permits relevant

Legislation: Evidence Act 1995 (Cth) ss 144, 191 Fair Work Act 2009 (Cth) ss 497, 500, 546 Workplace Health and Safety Act 2011 (Qld) ss 19, 117

Cases cited: ABCC v CFMMEU (Boggo Road Cross River Rail Case) [2022] FedCFamC2G 574 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 40 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union [2022] FedCFamC2G 156 Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 2) [2019] FCA 1737; (2019) 292 IR 259 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 113; (2017) 254 FCR 68 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2018] HCA 3; (2018) 262 CLR 157 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (the Webb Dock case) [2017] FCA 62 Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Werribee Shopping Centre Case) [2017] FCA 1235 Australian Building and Construction Commissioner v Pattinson [2022] HCA 13; (2022) 175 ALD 383 Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd [1997] FCA 450; (1997) 145 ALR 36 Australian Competition and Consumer Commission v Cement Australia Pty Ltd [2017] FCAFC 159; (2017) 258 FCR 312 Australian Opthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8; (2008) 165 FCR 560 Civil Air Operations Officers' Association of Australia v Airservices Australia (No 2) [2023] FCA 104 Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman [2023] FCA 72 Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman (The Botany Cranes Case) [2023] FCAFC 40 Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCA 1173 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (Kiama Aged Care Centre Appeal) [2023] FCAFC 63 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Bruce Highway Caloundra to Sunshine Upgrade Case) (No 3) [2023] FCA 219 In the matter of the Entry Permit of Andrew Robert Blakeley [2022] FWC 1730 In the matter of the Entry Permit of Luke Johannes Gibson [2022] FWC 1692 Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 Mill v The Queen [1988] HCA 70; (1988) 166 CLR 59 NW Frozen Foods Pty Ltd v Australian Competition and Consumer Commission [1996] FCA 1134; (1996) 71 FCR 285 Pattinson v Australian Building and Construction Commissioner [2020] FCAFC 177; (2020) 282 FCR 580 R v McInerney (1986) 42 SASR 111 Rojas v Esselte Australia Pty Ltd (No 2) [2008] FCA 1585; (2008) 177 IR 306 Trade Practices Commission v CSR Ltd [1990] FCA 762; (1991) ATPR 41-076