Arturo Menon

[2021] FWC 433

[2021] FWC 433

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.510 - Upon referral, revoke or suspend an entry permit

Arturo Menon
(RE2020/1011)

DEPUTY PRESIDENT COLMAN MELBOURNE, 29 JANUARY 2021

Revocation or suspension of entry permit under s 510

[1] Mr Arturo Menon is an official of the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU). On 1 November 2019 Mr Menon was issued a right of entry permit under s 512 of the Fair Work Act 2009 (the Act). The permit expires on 1 November 2022. This decision concerns whether the Commission must revoke or suspend Mr Menon’s permit under s 510(1)(d) and, if so, for what period a ban should be imposed on the issue of any further permit to Mr Menon.

[2] Section 500 of the Act provides that a permit holder exercising, or seeking to exercise, rights in accordance with Part 3-4 of the Act (which concerns right of entry) must not intentionally hinder or obstruct any person, or otherwise act in an improper manner.

[3] On 2 October 2020, the Federal Court made declarations that Mr Menon had, on 14 May 2018, contravened s 500 of the Act on four occasions by acting in an improper manner while exercising, or seeking to exercise, entry rights at a site in Farrar in the Northern Territory where Sitzler Pty Ltd (Sitzler), the occupier of the site, was constructing the Palmerston police station. 1

[4] First, the Court declared that Mr Menon had contravened s 500 by saying to workers at the site words to the effect that ‘You don't have to work under these conditions and you are entitled to go home on full pay’, when this was false and misleading because the site workers were not entitled to leave the site on full pay (first contravention).

[5] Secondly, Mr Menon was declared to have contravened s 500 by saying to a representative of Sitzler words to the effect of ‘You need to shut the site and stop work’ and that Sitzler would ‘pay the price’ if he did not do so (second contravention).

[6] Thirdly, Mr Menon was declared to have contravened s 500 by repeatedly demanding that a representative of Sitzler shut the site down when there was no requirement or obligation on Sitzler to do so (third contravention).

[7] Fourthly Mr Menon was declared to have contravened s 500 by requesting or demanding that two Northern Territory WorkSafe Inspectors shut the site down when there was no requirement or obligation on those inspectors to do so, and by behaving in an improper manner towards those inspectors (fourth contravention).

[8] The Court ordered Mr Menon to pay pecuniary penalties in the following amounts: $2,400 in respect of the first contravention; $3,000 in respect of the second contravention; $2,800 in respect of the third contravention; $2,500 in respect of the fourth contravention.

[9] The Court also declared that, by reason of ss 793 and 550 of the Act, the CFMMEU had contravened s 500 of the Act on four occasions by virtue of the conduct of Mr Menon and imposed pecuniary penalties on the union in respect of those contraventions in the amounts of $30,000, $40,000, $35,000 and $40,000 respectively.

[10] Acting on its own initiative under s 510 of the Act, the Commission commenced matter RE2020/1011 to determine whether Mr Menon’s permit should be suspended or revoked under that section as a consequence of penalties having been imposed on him by the Court.

[11] Mr Menon is represented by the CFMMEU. The Australian Building and Construction Commissioner (ABCC) gave notice to the General Manager of the Commission pursuant to s 110 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) that he was intervening in the matter. On 18 November 2020, the Commission issued directions for the parties to file and serve submissions and materials. The parties complied with the directions. They requested that the Commission determine the matter on the papers. Having read the submissions I consider that it is appropriate to do so.

Statutory Framework

[12] Section 510 of the Act relevantly provides as follows:

“When the FWC must revoke or suspend entry permits

(1) The FWC must, under this subsection, revoke or suspend each entry permit held by a permit holder if it is satisfied that any of the following has happened since the first of those permits was issued: …

(d) the permit holder, or another person, was ordered to pay a pecuniary penalty under this Act in relation to a contravention of this Part by the permit holder; …

(2) Despite subsection (1) the FWC is not required to suspend or revoke an entry permit under paragraph (1)(d) or (f) if the FWC is satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances.

(3) Subsection (1) does not apply in relation to a circumstance referred to in a paragraph of that subsection if the FWC took the circumstance into account when taking action under that subsection on a previous occasion.

Minimum suspension period

(4) A suspension under subsection (1) must be for a period that is at least as long as the period (the minimum suspension period) specified in whichever of the following paragraphs applies:

(a) If the FWC has not previously taken action under subsection (1) against the permit holder – 3 months;

(b) If the FWC has taken action under subsection (1) against the permit holder on only one occasion – 12 months;

(c) If the FWC has taken action under subsection (1) against the permit holder on more than one occasion – 5 years.

Banning issue of future permits

(5) If the FWC takes action under subsection (1) it must also ban the issue of any further entry permit to the permit holder for a specified period (the ban period).

(6) The ban period must:

(a) begin when the action is taken under subsection (1); and

(b) be no shorter than the minimum suspension period.”

[13] It is relevant to note that the object of Part 3-4 of the Act, set out in s 480, is to establish a framework for officials of organisations to enter premises that will balance the rights of various persons: the right of organisations to represent their members in the workplace, hold discussions with potential members and investigate suspected contraventions of the Act, OHS laws and industrial instruments; the right of employees to receive, at work, information and representation from officials of organisations; and the right of occupiers of premises and employers to go about their business without undue inconvenience.²

Submissions

[14] The ABCC submitted that the entry permit of Mr Menon should be suspended for a period of eighteen months, and that the Commission should ban the issue of any further entry permits to him for a corresponding period from the date of suspension.

[15] The ABCC contended that the Commission should have regard to particular observations of White J made in the course of determining the appropriate pecuniary penalties to impose on Mr Menon. In relation to Mr Menon’s conduct generally, the ABCC pointed to the following observations of his Honour:

•  “There is no evidence of any contrition or regret by any of the respondents for their conduct. Apart from the formal admissions in the pleadings, there has been no acknowledgement by any of the respondents of the wrongfulness of their conduct. Absence of contrition or regret is not an aggravating factor but the respondents are not entitled to any leniency on this account.” (at [98])

•  “Because I have, by application of the course of conduct principle, endeavoured to avoid double punishment, I consider that the aggregation of the penalties is just and appropriate. That is particularly so in the case of Mr Menon as he persisted in his conduct over a period of about two hours. He had ample opportunity to reflect on the wrongfulness of his conduct over that period.” (at [115])

[16] Regarding the first, second and third contraventions, the ABCC submitted that the Commission should have regard to the following statements of White J:

•  As to the first contravention: “This false and misleading Representation to the workers had the potential, if heeded, to cause damage to Sitzler. It is fortunate for Mr Menon that it did not have that effect.” (at [109])

•  As to the second contravention: “The next contravention of Mr Menon in chronological sequence is the second pleaded contravention. This was Mr Menon’s statement to Mr Moran shortly after 11.45 am that Sitzler "would pay the price" if Mr Moran did not shut the Site and stop work. As this was a continuation of the conduct comprising the third contravention, Mr Menon is not to be penalised again for the demands he already made that Sitzler cease Work. It is the making of the threat by way of giving force to the demand which constitutes the gravamen of this contravention. It should be viewed seriously. I impose a penalty of $3,000 after taking account of the place of this contravention in the course of conduct and to the mitigatory matters mentioned above.” (at [107])

•  As to the third contravention: “The third of the pleaded contraventions was the first in time, having been committed between 11.15 am and 11.45 am. It was constituted by Mr Menon’s repeated demands that Sitzler shut the Site down when there was no obligation on it to do so. This contravention was serious because it involved repeated false and misleading statements over a period of approximately 30 minutes. Mr Menon’s demands had the potential to be disruptive of productive work on the Site, had Mr Ryan acceded to them. Nevertheless, as noted above, the ABCC submitted that a penalty in the low range was appropriate. I impose a penalty of $2,800.” (at [106])

[17] Regarding the fourth contravention, the ABCC submitted that the Commission should have regard to the following passages of the Court’s decision:

•  “[The contravention was] constituted by his loud and aggressive requests or demands to the NT WorkSafe Inspectors… (which were made when standing in close proximity to them) that they shut the Site down. There was no obligation on them to do so and the manner in which the demands were made was improper.” (at [32])

•  “The circumstance that Mr Menon’s fourth contravention involved improper conduct to Mr Lucas and Ms Sayers who were acting in the course of their duties as WorkSafe Inspectors is an aggravating feature. Such officers should be able to discharge their duties without being subject to aggression or any form of intimidation: cf Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 at [144]-[145].” (at [96])

•  “This too is to be viewed seriously having regard to the matters which I mentioned earlier. It was, however, a continuation of Mr Menon’s purpose in seeking to have the Site closed and should not be regarded as a separate incursion into contravening conduct. I impose a penalty of $2,500.” (at [108])

[18] The ABCC submitted that the Court had imposed significant penalties on Mr Menon in respect of his contraventions, totalling $10,700, and that a permit suspension and ban period of eighteen months would be appropriate, taking account of the following matters:

•  The nature of Mr Menon’s conduct being defiant, deliberate, prolonged and not unintentional or accidental, and that Mr Menon’s conduct was directed towards two WorkSafe inspectors, which was particularly egregious;

•  The lack of contrition and Mr Menon’s failure to take corrective action to avoid further contraventions or make a statement of determination to ensure that he will comply with his legal obligations in the future; and

•  The need for the Commission to uphold the statutory regime that only fit and proper persons have an entitlement to hold entry permits, and that conduct found to breach the right of entry regime will not be tolerated.

[19] The ABCC further submitted that a suspension period of 18 months would adequately balance the competing rights in Part 3−4 of the Act, and that such an order would be appropriate having regard to other decisions of the Commission made under s 510, including In the matter of the Entry Permit of Blake Patrick Hynes[2020] FWC 97; Fair Work Commission v Stephen Long[2017] FWC 6867; Fair Work Commission v Darren Roberts [2016] FWC 4052; Director of the Fair Work Building Industry Inspectorate v Vink [2016] FWC 2512; Director of the Fair Work Building Industry Inspectorate v Perkovic[2015] FWC 4062; and Director of the Fair Work Building Industry Inspectorate v Smart[2015] FWC 3656.

[20] The CFMMEU recognised that the Commission is required to take action under s 510 in respect of Mr Menon’s permit and did not contend that suspension or revocation would be ‘harsh or unreasonable’ for the purpose of s 510(2). It submitted however that the Commission should suspend, rather than revoke Mr Menon’s permit, and that the period of suspension and the associated ban on issuing a new permit should be the minimum period of three months.

[21] The CFMMEU submitted that the Commission’s jurisdiction under s 510 is protective or rehabilitative, not punitive, as the punitive function has already been performed by the Court through its imposition of pecuniary penalties. It said that the Commission’s power under s 510 is not to be exercised for the purpose of deterrence or for the purpose of the Commission publicly noting its disapproval of the conduct, as this too is the preserve of the Court. The union further submitted that the Commission should have regard to the approach taken to s 510 by Boulton J in Parker and others, 3 which has been adopted in various other decisions, including by Gostencnik DP in Kalem,4 where the following five matters were regarded as relevant: the object of Part 3-4; the nature and gravity of the underlying contravention of Part 3-4; the impact that the revocation or suspension of the entry permits might have on the union concerned, its members and the permit holder; whether training has been undertaken by the entry permit holders since the events; and general character evidence.

[22] The CFMMEU contended that Mr Menon has been a union official and the holder of a right of entry permit since 1995, and that the decision of the Federal Court on 2 October 2020 is the only occasion on which Mr Menon has been found to have contravened the Act. The CFMMEU submitted that the Commission’s discretion under s 510 should be informed by a range of matters, not just the nature of the contravening conduct, but that to the extent that the latter is relevant, it should bear on the consideration of the likelihood of the permit-holder reoffending. It said that where a contravention is truly unique, out of the ordinary or out of character, as is the case in the present matter, the Commission can be confident that the conduct will not recur. The CFMMEU said that it was significant that Mr Menon was a first time contravener, and that the scheme of s 510 reveals a legislative intention to afford leniency towards such persons, which is reflected in the shorter minimum suspension period prescribed for such cases. It contended that sound reasons would be required to depart from the course envisaged by the legislature.

[23] The union contended that the Commission should take into account that the penalty imposed by the Court contains a component for specific deterrence, and that it ought to be assumed that the imposition of the penalty has had a deterring effect on Mr Menon such that any reoffending is unlikely. The CFMMEU further contended that the following matters were relevant to the period of the suspension, revocation or ban that the Commission might impose:

•  Mr Menon was found to have acted in an improper manner. He was not found to have intentionally hindered or obstructed any person. Mr Menon had otherwise entered the site in a lawful manner. There was no physical interference with any work being performed. There was no loss or damage suffered as a consequence of Mr Menon’s contravening conduct.

•  The conduct occurred in the context of there being legitimate safety issues at the site which were of genuine concern to Mr Menon. His response to those issues was a genuine, albeit disproportionate and unlawful, response to the risk to which he believed the workers were exposed.

•  The conduct was isolated, constituted by one relatively short period of outbursts, and was not premeditated. Mr Menon lost control of his behaviour for a brief period. There is no allegation of any similar conduct either before or since the relevant event in Mr Menon’s long period as a permit holder.

•  Mr Menon admitted the conduct during mediation and cooperated in the proceedings, which is indicative of insight into the seriousness of the conduct and weighs in favour of a finding that there is unlikely to be any repetition of the conduct.

[24] As to the relevance of other decisions of the Commission in matters under s 510, the union contended that, whilst it is difficult to make comparisons with prior decisions, a suspension of Mr Menon’s permit for three months would be in accordance with comparable cases, including Parker and Kalem, referred to earlier, and also Kirner. 5

Consideration

[25] Mr Menon has been ordered to pay a pecuniary penalty under the Act in relation to a contravention of Part 3-4 of the Act. The Commission is therefore required by s 510 to revoke or suspend Mr Menon’s permit unless it is satisfied that the suspension would be harsh or unreasonable in the circumstances (see s 510(1)(d) and 510(2) – note that s 510(3) is not presently relevant). Further, because the Commission has not previously taken action under s 510 against Mr Menon, a suspension of his permit must be for a minimum period of three months (s 510(4)). If the permit is suspended or revoked under s 510(1), the Commission must also ban the issuance of any further permit to Mr Menon for a minimum period of three months, commencing when the revocation or suspension begins (ss 510(5) and (6)).

[26] I consider that the five matters referred to in Parker are relevant to the exercise of power under s 510. Although in Parker and other cases such as Kalem these considerations were framed with particular reference to whether it would be harsh or unreasonable to suspend a permit, I accept that they may also be relevant to the consideration of the period of the suspension of a permit and the length of any associated ban on the issuing of a new permit.

[27] I accept that the exercise of the Commission’s power under s 510 should be informed by the object of Part 3-4, and, as noted in Kalem and numerous other cases, that the power is not punitive in nature. The court has already determined and ordered condign punishment for the contraventions in question, and punishment is not ordinarily a function of an arbitral body. The Commission’s function under s 510 should be understood as being protective and corrective in nature.⁶

[28] Having considered all of the circumstances, I am not satisfied that the suspension or revocation of Mr Menon’s permit would be harsh or unreasonable in the circumstances. Therefore the exception in s 510(2) does not apply. The ABCC did not contend that the Commission should revoke the permit. I consider that it would be inappropriate to do so. I am therefore required to suspend Mr Menon’s permit.

[29] The question that must then be determined is for what period Mr Menon’s permit should be suspended. I take into account the fact that Mr Menon has been a union official and permit-holder for a considerable length of time and that the contraventions of the Act declared by White J are Mr Menon’s first contraventions. Although there were four contraventions, they occurred on one day and, as the union contended, may be considered ‘isolated’, although as White J noted, they persisted for two hours.

[30] I also take into account that, although the four contraventions happened on the same day and in the same context, there were different dimensions to the contraventions, including the making of false representations to employees, and the making of demands of the occupier, and of inspectors, to shut the site when there was no requirement or obligation to do so. Mr Menon conveyed a threat to the occupier. And he was found to have behaved in a loud and aggressive manner.

[31] I take note of the passages of the decision of White J referred to by the ABCC, and of the quantum of the penalties imposed by the court. I also take into account that Mr Menon’s conduct was evidently deliberate and repeated, although confined to one day, and that the contravening conduct was directed also towards two WorkSafe inspectors who were simply doing their job, and, as White J observed, should be able to do so without being subject to aggression or intimidation.

[32] I find the parties’ references to other decisions of the Commission of some assistance in relation to the consideration of principle, but of little relevance when it comes to applying those principles to the facts and determining an appropriate period of suspension, because each decision is the outcome of a deliberative process that has weighed all of the facts and circumstances, which invariably differ from case to case. Even if one could identify cases that were factually closely analogous to the present matter, I would be required to make my own assessment as to what period of suspension I consider to be appropriate in the circumstances, rather than simply adopting the periods of suspension imposed by other members.

[33] The CFMMEU contended that sound reasons would be required before the Commission would depart from the minimum suspension periods, which are the ‘course envisaged by the legislature’. Clearly the Commission must have sound reasons for any decision, but I do not accept that the minimum periods are ‘default’ periods. Section 510 requires the Commission to revoke or suspend a permit in defined circumstances. Section 511(a) requires that the suspension be for a ‘specified’ period. And s 510(4) prescribes minimum periods of suspension. The task of determining the period of a suspension is left to the Commission’s discretion, which is exercisable having regard to the object of Part 3-4, and the provisions of Part 5-1 that govern the performance of the Commission’s functions generally (e.g. s 577). There is no presumption that the minimum period of suspension will apply. Rather, the Commission is prohibited from specifying a period of suspension that is less than the minimum period.

[34] I accept the CFMMEU’s contention that it is appropriate to take account of the fact that the penalty imposed by the Court contains a component for specific deterrence, but I do not accept that I should assume that the imposition of the penalty necessarily has had a deterring effect, and that the prospect of Mr Menon reoffending is, for this reason, unlikely. I do not see any proper basis to make such an assumption.

[35] I am not persuaded that to be found to have acted in an ‘improper manner’, rather than to have ‘intentionally hindered or obstructed any person’, is necessarily a lesser contravention of s 500. The provision states that a permit holder must not ‘intentionally hinder or obstruct any person, or otherwise act in an improper manner’. Intentional hinderance or obstruction are therefore simply particular modes of acting in an ‘improper manner’, and there is no apparent reason why they should be considered graver than others. I note however that there was no physical interference with any work, nor was there any loss or damage suffered as a consequence of the contravening conduct.

[36] I accept, as the CFMMEU contended, that Mr Menon was genuinely concerned about safety issues on site, but as the union rightly conceded, this does not diminish the gravity of the conduct. And although Mr Menon admitted the conduct during mediation and cooperated in the proceedings, I do not accept the union’s contention that this must be indicative of insight into the seriousness of the conduct, or that it necessarily suggests that there is unlikely to be a repetition of the conduct. An equally available inference is that the decision to admit the contravening conduct was a pragmatic decision made in the light of the available evidence, and one that might work in Mr Menon’s favour in the Court’s assessment of an appropriate penalty.

[37] I take account of the fact that Mr Menon acknowledged his contraventions of the Act, but also that he did not express contrition for his actions. Through the submissions of his representatives, Mr Menon states that the Commission can be satisfied that he will not contravene again. But that is not the same thing as recognising that his conduct was wrong. I consider that, in the Commission’s deliberations on the application of s 510, the absence of contrition is not an ‘aggravating’ factor. It is however a relevant factor. A person who has expressed remorse for a contravention can more persuasively assert that there will be no recurrence of the relevant conduct. The contrite person wishes that the contravention had not occurred, for reasons of conscience or other matters related to their own personal value system. Remorse is a powerful motivator that may weigh in favour of a conclusion that further contraventions are unlikely. But there has been no expression of remorse in this case.

[38] I consider that a permit suspension for a period that exceeds the minimum period is likely to have a more reliable corrective effect and provide a surer basis for the Commission to be confident that the contravening conduct will not recur, and hence serve a protective purpose.

[39] Mr Menon was ordered to pay penalties in respect of four contraventions of the Act. He recognises his contraventions but has not said that he regrets them. The contraventions were serious matters. I am mindful of Mr Menon’s lengthy service as a union official and permit holder, and that the contraventions may be regarded as isolated. In all the circumstances I consider that it would be in keeping with the protective purpose of s 510, and the object of Part 3-4, to suspend Mr Menon’s permit for a period that exceeds the minimum suspension period of three months. I consider that a suspension for a period of six months is appropriate in all the circumstances, and that a ban on the issue of a new permit should be imposed for the same period.

Conclusion

[40] For the reasons set out above, I order that Mr Menon’s entry permit be suspended for a period of six months from the first business day following the date of this decision, and that from that day there be a ban on the issue of any further permit to Mr Menon for the same period.

DEPUTY PRESIDENT

Written submissions:

ABCC: 1 December 2020

Mr Menon: 23 December 2020

Printed by authority of the Commonwealth Government Printer

<PR726503>

 1   Australian Building and Construction Commission v Menon and others [2020] FCA 1418

2 See also the observations of the Full Federal Court in Maritime Union of Australia v Fair Work Commission [2015] FCAFC 56 at [14] and [15]

 3   [2011] FWA 2577

 4   [2017] FWC 5086

 5   [2017] FWC 5514

6 Mr Muhammed Kalem [2017] FWC 5086 at [19], Gostencnik DP