Australian Building and Construction Commissioner v Menon

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.