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

The case of Construction, Forestry, Maritime, Mining and Energy Union v Fair Work Ombudsman, also known as the Boggo Road Cross River Rail Case, involved an appeal against the quantum of penalties imposed by the primary judge. The respondents had conceded three grounds of appeal, one of which was that the primary judge had erred in finding homophobic conduct. The court was required to decide the appropriate penalties for the appellants who were found to have contravened section 500 of the Fair Work Act 2009 (Cth). The court found that the primary judge had indeed erred in finding homophobic conduct, and that the penalties imposed were too high. The court took into account the utilitarian effect of the appellants' admissions, the limited scope of the third appellant's conduct, and the fact that the permits had been revoked. The court also found that the conduct was deliberate and churlish, and that there was no evidence of prior planning. The court redetermined the penalties to be $7,000 for each of the second and third appellants, and $50,000 for each of the two contraventions by the first appellant, resulting in a total penalty of $100,000. The court also varied the declarations made by the primary judge to reflect the correct nature of the conduct.

The court's reasoning was based on the need to strike a reasonable balance between oppressive severity and the need for deterrence in respect of the particular case. The court found that the primary judge had overstated the seriousness of the conduct and had failed to properly reflect the factors that may moderate the penalty. The court took into account all of the relevant circumstances, including the fact that the conduct was deliberate and churlish, and that there was no evidence of prior planning. The court also found that the utilitarian effect of the appellants' admissions, the limited scope of the third appellant's conduct, and the fact that the permits had been revoked were all relevant factors in determining the appropriate penalty. The court emphasised the importance of general and specific deterrence in imposing the penalty, particularly in relation to the first appellant who was a recidivist offender and a large and well-resourced entity. The court also noted that the fact that there were two people who committed the same contravention was not a basis to reduce the penalty having regard to the principle of totality. The penalty to be imposed on the first appellant was not reduced simply because more people were involved. To do so would undermine the notion of general deterrence. The court also varied the declarations in the manner and terms referred to above at [8].