Australian Building and Construction Commissioner v Menon

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FEDERAL COURT OF AUSTRALIA

Australian Building and Construction Commissioner v Menon [2020] FCA 1418

File number: NTD 1 of 2019
Judgment of: WHITE J
Date of judgment: 2 October 2020
Catchwords: INDUSTRIAL LAW – admitted contraventions of s 500 of the Fair Work Act 2009 (Cth) – determination of penalties – proportionality and a previous record – whether contraventions occurred in a single course of conduct – relevant considerations in determining appropriate declarations and penalties.
Legislation:

Building and Construction Industry (Improving Productivity) Act 2016 (Cth) ss 5, 6

Crimes Act 1914 (Cth) s 4AA

Fair Work Act 2009 (Cth) ss 500, 512, 546, 550, 557, 793

Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ss 84, 86, 117, 119, 134

Cases cited:

Attorney‑General v Tichy (1982) 30 SASR 84

Auimatagi v Australian Building and Construction Commissioner [2018] FCAFC 191; (2018) 267 FCR 268

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Castlemaine Police Station Case No 2) [2020] FCA 202

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (Syme Library Case) (No 2) [2019] FCA 155

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bay Street Case) (No 2) [2019] FCA 1859

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Geelong Grammar School Case) (No 2) [2019] FCA 1498

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Laverton North and Cheltenham Premises Case) (No 2) [2019] FCA 973

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The NewCold Picket Case) [2019] FCA 2038

Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Nine Brisbane Sites Appeal) [2019] FCAFC 59; (2019) 269 FCR 262

Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union [2017] FCAFC 53; (2017) 249 FCR 458

Australian Building & Construction Commissioner v Construction, Forestry, Mining and Energy Union (No 2) [2010] FCA 977; (2010) 199 IR 373

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 (Perth Childrens’ Hospital Contraventions Case) [2017] FCA 491

Australian Building and Construction Commissioner v Ingham (No 2) (The Enoggera Barracks Case) [2018] FCA 263

Australian Building and Construction Commissioner v Pattinson [2019] FCA 1654

Australian Building and Construction Commissioner v Pauls [2017] FCA 843

Australian Building and Construction Commissioner v Powell (No 2) [2019] FCA 972

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd [2016] FCAFC 181; (2016) 340 ALR 25

Birch v Fitzgerald (1975) 11 SASR 114

Comcare v Post Logistics Australasia Pty Ltd [2012] FCAFC 168, (2012) 207 FCR 178

Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate [2015] HCA 46; (2015) 258 CLR 482

Construction, Forestry, Maritime, Mining and Energy…

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Details
Case
[2020] FCA 1418
Decision Date

CaseChat Overview and Summary

The Australian Building and Construction Commissioner (ABCC) initiated proceedings against Mr Menon, Mr Taylor, Mr Cummins, and the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) in the Federal Court, alleging contraventions of section 500 of the Fair Work Act 2009 (Cth). The contraventions arose from actions taken by the union officials on a construction site in Palmerston, Northern Territory, in May 2018. The ABCC sought declarations of contravention and the imposition of pecuniary penalties on the respondents. The CFMMEU accepted liability for the contraventions both as an accessory and under section 793 of the Act.

The court had to determine the appropriate penalties for the contraventions, considering factors such as the nature, character, and seriousness of the conduct; the loss and damage caused; the deliberateness of the conduct; and the history of contravention. The court also had to decide whether the contraventions occurred in a single course of conduct, which could impact the penalty calculation. The overarching principle in setting penalties was deterrence, but the penalties had to be proportionate to the specific contraventions in question.

The court found that the contraventions were serious and deliberate, with a demonstrated disregard for the law. The court acknowledged the need for deterrence but also emphasised the importance of proportionality. The court found that the contraventions did not occur in a single course of conduct but were separate incidents. Based on the seriousness of the conduct and the need for deterrence, the court imposed penalties on Mr Menon, Mr Taylor, Mr Cummins, and the CFMMEU. The penalties ranged from $2,200 to $40,000 per contravention, with the total penalties reflecting the seriousness of the conduct and the need for deterrence.

The final orders required Mr Menon, Mr Taylor, and Mr Cummins to pay specified penalties for their contraventions, and the CFMMEU to pay penalties for its liability as an accessory and under section 793. The penalties were to be paid within 28 days, and there was no order as to costs.

Orders

Orders of the court

Mr Menon’s contraventions

17. Mr Menon pay a penalty of $2,400 in respect of his first s 500 contravention.

18. Mr Menon a penalty of $3,000 in respect of his second s 500 contravention.

19. Mr Menon pay a penalty of $2,800 in respect of his third s 500 contravention.

20. Mr Menon pay a penalty of $2,500 in respect of his fourth s 500 contravention.

21. The CFMMEU pay a penalty of $30,000 in respect of the CFMMEU’s first contravention.

22. The CFMMEU pay a penalty of $40,000 in respect of the CFMMEU’s second contravention.

23. The CFMMEU pay a penalty of $35,000 in respect of the CFMMEU’s third contravention.

24. The CFMMEU pay a penalty of $40,000 in respect of the CFMMEU’s fourth contravention.

Mr Taylor’s contraventions

25. Mr Taylor pay a penalty of $3,000 in respect of his first s 500 contravention.

26. Mr Taylor pay a penalty of $2,200 in respect of his second s 500 contravention.

27. The CFMMEU pay a penalty of $30,000 in respect of the CFMMEU’s fifth contravention.

28. The CFMMEU pay a penalty of $25,000 in respect of the CFMMEU’s sixth contravention.

Mr Cummins’ contraventions

29. Mr Cummins pay a penalty of $3,500 in respect of his 14 May 2018 s 500 contravention.

30. Mr Cummins pay a penalty of $2,800 in respect of his 15 May 2018 s 500 contravention.

31. The CFMMEU pay a penalty of $35,000 in respect of the CFMMEU’s seventh contravention.

32. The CFMMEU pay a penalty of $35,000 in respect of the CFMMEU’s eight contravention.

Other orders

33. The pecuniary penalties referred to in Orders 17 to 32 above be paid to the Commonwealth of Australia within 28 days.

34. There be no order as to costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

A penalty unit is defined in s 4AA of the Crimes Act 1914 (Cth) and, at the time of the contravening conduct, was $210 per unit. Accordingly, the maximum penalty which can be imposed for each contravention by each of the individual respondents is $12,600. The maximum penalty which can be imposed on the CFMMEU for each of its contraventions is $63,000.Background to the contravening conduct In May 2018, Sitzler was undertaking the construction of the Palmerston Police Station at a site on Kettle Street, Farrar at Palmerston in the Northern Territory (the Site). In doing so, it was a “building industry participant” within the meaning of s 5 of the Building and Construction Industry (Improving Productivity) Act 2016 (Cth) (the BCIIP Act) and its employees were engaged in “building work” within the meaning of s 6 of that Act. The employees were also “workers” and “relevant workers” as the case may be for the purposes of ss 84, 86 and 117 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) (the WHS Act). The site constituted “premises” for the purposes of Pt 3‑4 of the FW Act and Sitzler was the occupier of the Site. In May 2018, each of Mr Menon, Mr Taylor and Mr Cummins held an entry permit issued under s 512 of the FW Act (FW Act Permit). In addition, each held a permit (the WHS Permit) issued under s 134 of the WHS Act. The contraventions on 14 May 2018 The events giving rise to the present proceedings commenced at about 11.05 am on 14 May 2018 when Mr Menon and Mr Taylor attended the Site. They showed both their FW Act Permits and their WHS Permits to Mr Ryan, who was Sitzler’s Construction Site Manager. Mr Menon and Mr Taylor told Mr Ryan that they were on Site because the unmanned entrance gate constituted a safety breach and the Site had a lack of amenities. Mr Menon handed to Mr Ryan a notice of entry prepared under s 119 of the WHS Act (the WHS Notice of Entry) which stated:I observe no traffic management on site. I cannot see adequate lunchroom and amenities on job. The purpose of the site visit is for suspected contraventions of safety Acts Investigations. Mr Menon then said to Mr Ryan, in the presence of Mr Taylor, words to the effect: ·Sitzler needed “to close up the site due to the safety breaches”; and·he and Mr Taylor wanted to walk around the site to investigate the safety breaches. At about 11.15 am, Mr Ryan escorted Mr Menon and Mr Taylor around the Site during which: (a)Mr Menon and Mr Taylor pointed out an open gate and said that there was no traffic management on Site;(b)Mr Menon said to Mr Ryan, in the presence of Mr Taylor, words to the effect that Sitzler “should shut the site” and that “Sitzler needed to stop works for Sitzler and the CFMMEU to start off on a good foot and have a good relationship for the project”; and(c)Mr Menon said to Mr Ryan that there was no toilet or crib room on the Site. Shortly after their walk around the Site, Mr Ryan, Mr Menon and Mr Taylor returned to the Site office at which the following occurred:(a)Mr Menon said to Mr Ryan, in the presence of Mr Taylor, words to the effect that “due to the lack of crib hut and toilets for the workers, the site needed to be shut”;(b)Mr Ryan did not respond;(c)Mr Menon again said to Mr Ryan, in the presence of Mr Taylor, that he needed to shut the Site because of the lack of facilities for the workers;(d)Mr Ryan replied that Sitzler was currently working on putting in facilities;(e)Mr Menon replied with words to the effect that “it is not good enough and it should’ve been done beforehand”; and(f)Mr Menon again said to Mr Ryan, in the presence of Mr Taylor, that Sitzler needed to shut the Site as there were safety issues.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

The ABCC also alleged that the CFMMEU is liable as an accessory for each of the above contraventions pursuant to s 550 of the Act, and the CFMMEU accepted that that was so. The submissions proceeded on the basis that the CFMMEU is liable pursuant to both ss 550 and 793 and that no distinction need be drawn between these distinct bases of liability. Declarations The ABCC submitted that the Court should issue declarations as to each of the contraventions identified above. He submitted that declarations of contraventions are particularly appropriate in a case like the present which proceeds on the basis of formal admissions rather than on the basis of findings following a trial. In such cases, the declarations serve the purpose of identifying the conduct for which the Court imposes the penalties. The respondents did not, in substance, oppose the making of the declarations sought by the ABCC. I am satisfied that the making of declarations is appropriate in the present case even though penalties will also be imposed on the respondents. It is common for declarations to be made in circumstances of the present kind. Doing so serves a number of purposes, including providing a formal pronouncement by the Court of the nature of the contravention involved, and by providing a statement of the Court’s denunciation of the conduct. In some circumstances, declarations can also serve an educational purpose.Penalties Subject to consideration of a submission made by the ABCC concerning the application of the principle of proportionality, the principles concerning the fixing of penalties in circumstances of the present kind are settled. Counsel for the ABCC referred in his submissions to the summary by the Full Court in Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Non‑Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155:[19]… Of particular significance is the recognition that deterrence (general and specific) is the principal and indeed only object of the imposition of a penalty – to put a price on contravention that is sufficiently high to deter repetition by the contravener and others who might be tempted to contravene the Act … Retribution, denunciation and rehabilitation have no part to play.[20]Relevant factors in the overall assessment of penalty were helpfully listed by French J in CSR. They have been adopted in many cases. For present purposes, they can be restated as follows: the nature, character and seriousness of the conduct; the loss and damage caused; the circumstances in which the conduct took place; the size of the contravener and its degree of power; the deliberateness of the conduct and the time over which it occurred; the degree of involvement of senior officials or management; the culture of the organisation as to compliance or contravention; and, any co-operation with the regulator and contrition. [21]The seriousness of the contravention and other features of the conduct which may be seen as relevant to it (here, the seriousness of interruption of a concrete pour, the seriousness of the threats of repetition, the deliberateness of the contravening of the Act, and the exhibited apparent sense of impunity in undertaking contravening conduct) find their place in understanding the degree of deterrence that is necessary to be reflected in the size of the penalty …[22]The overwhelming importance of deterrence as the protective purpose of the penalty does not exclude the need to determine a penalty which is proportionate to the contravening conduct. The history of contravention is to be taken into account in fixing the proper level of penalty for the proportionate response to the contravention in question. Proportionality has within it the need to characterise the seriousness of the contravention. Proportionality of penal response to a contravention assessed by reference to its seriousness and gravity is an essential characteristic of the application of the statute. The penal response is for that contravention, not earlier contraventions … Prior contraventions may reveal an apparent disregard for the Act and the need for deterrence by a penalty at a level appropriate to achieve that objective. It is to be borne in mind, however, that it is for the conduct in question that the penalty is imposed, not for prior conduct.(Citations omitted)