CFMEU to appeal ‘pumpkin eater’ ruling

Judge imposes maximum penalties on union and finds an organiser used the term ‘pumpkin eater’ as a ‘homophobic slur’.

The CFMEU will appeal a court decision in which a federal judge found an organiser used the term ‘pumpkin eater’ as a ‘homophobic slur’. Picture: Brad Fleet

The CFMEU will appeal a court decision in which a federal judge imposed maximum penalties on the union and two organisers and found one of the organisers used the term “pumpkin eater” as a ”homophobic slur”.

Counsel for the construction watchdog and the union had told the judge they had never heard “pumpkin eater” used as a homophobic slur, while the union’s lawyer said the organiser’s insult of a safety adviser, Peter Cullen – “Pete, Pete, Pumpkin Eater” – was a nursery rhyme reference.

But Federal Circuit and Family Court judge Salvatore Vasta said counsel may have had a sheltered existence and he had no doubt it was a homophobic slur.

“I am not criticising either counsel in any way; I wish that I did not know what this term actually means because it is so disgusting,” he said, in a decision published on Thursday.

Judge Vasta imposed $151,200 in penalties for the right of entry breaches on the Queensland Cross River Rail project, including $12,600 each on the organisers which must be paid personally by them.

Judge Vasta said that he had “absolutely no doubt” that Mr Gibson calling Mr Cullen a ‘pumpkin eater’ was “meant as a homophobic slur”.

He referred to a subsequent offensive comment by Mr Blakeley suggesting Mr Cullen was trying to look at Mr Blakeley’s penis while in a toilet block.

He said 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,” he said.

But CFMEU construction division national secretary Dave Noonan said the union would appeal the judgment, calling the decision “bizarre and eccentric”.

“It does not reflect the case that was argued in front of the judge,” he said. “We are confident of a successful appeal.”

Judge Vasta said since reserving this decision, he thought back to an earlier decision in which he “unfortunately had to use terms identifying a number of paraphilias including coprophilia, urophilia and necrophilia”.

“There were many queries afterwards by persons whom I would have considered “worldly” as to what these terms meant,” he said.

“It may be the same is true of “pumpkin eater”. Whilst I do not wish to explain this term in the body of these reasons, I have given an explanation in Annexure 1 to this judgment.”

In his decision Judge Vasta said “there was some consternation at the bar table when I expressed that the term “pumpkin eater” was a homophobic slur”.

“Counsel, who may have had a somewhat sheltered existence, did not understand that this term could be used in this manner.

“At the hearing, I did not wish to explain what the term means because it is quite disgusting and I believed that the use of this term was common enough knowledge. I have absolutely no doubt that it was meant as a homophobic slur to Mr Cullen.

“It was submitted to me that the term was a reference to the nursery rhyme. I cannot accept this submission. Firstly, the nursery rhyme would reference ‘Peter, Peter, pumpkin eater’ and not ‘Pete, Pete, pumpkin eater’.

“If it were simply a reference to a nursery rhyme, then there would be no cause for anyone to be upset or offended. But the immediate response of Mr Cullen’s colleague, Mr Gallen, was to say, ‘Mate, no name-calling; we are not calling you guys names’.

“If this were simply a play on names and referencing a children’s nursery rhyme, such a reaction by Mr Gallen would be excessive.

“If this were simply a reference to a nursery rhyme, why would Mr Gallen need to explain that there should be no ‘name-calling’, as such a reference could never amount to ‘name-calling’.”

He said for Mr Blakeley and Mr Gibson, who are supposedly fit and proper persons to hold an entry permit, “to utter such slurs to bully and belittle a person simply must be deterred by all means available to a court”.