Australian Building and Construction Commissioner v Menon

• Jurisdiction: Australia Federal only
• Judgment Date: 02 October 2020
• Neutral Citation: [2020] FCA 1418
• Court: Federal Court
• Date: 02 October 2020

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 Union v Australian Building and Construction Commissioner (The Non‑Indemnification Personal Payment Case) [2018] FCAFC 97; (2018) 264 FCR 155 Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126; (2018) 265 FCR 208 Director of the Fair Work Building Industry Inspectorate v Stephenson [2014] FCA 1432 Eldridge v Bates [1989] SASC 1268; (1989) 51 SASR 532 Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union [2018] FCA 934; (2018) 280 IR 173 Fair Work Ombudsman v Maritime Union of Australia [2012] FCA 1232 Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Parker v Australian Building and Construction Commissioner [2019] FCAFC 56; (2019) 270 FCR 39 Police v Cadd [1997] SASC 6187; (1997) 69 SASR 150 R v E, AD [2005] SASC 332; (2005) 93 SASR 20 R v Liddy (No 2) [2002] SASC 306; (2002) 85 SASR 231 R v McInerney (1986) 42 SASR 111 Royer v The State of Western Australia [2009] WASCA 139 Ryan v The Queen [2001] HCA 21; (2001) 206 CLR 267 Sayed v Construction, Forestry, Mining and Energy Union [2015] FCA 338 Ultra Tune Australia Pty Ltd v Australian Competition and Consumer Commission [2019] FCAFC 164 Veen v The Queen (No 2) [1988] HCA 14; (1988) 164 CLR 465 Weininger v The Queen [2003] HCA 14; (2003) 212 CLR 629
Division:	General Division
Registry:	Northern Territory
National Practice Area	Employment and Industrial Relations
Number of paragraphs:	128
Date of last submissions:	28 February 2020
Date of hearing:	13 December 2019
Counsel for the Applicant:	Mr M Felman
Solicitor for the Applicant:	Minter Ellison
Counsel for the Respondents:	Mr C Dowling SC
Solicitor for the Respondents:	Hall Payne Lawyers

Table of Corrections
7 October 2020	In Order 22, the amount “$30,000” has been amended to “$40,000”.
8 February 2021	In Declaration 2, the word “he” is replaced with “it”.
8 February 2021	In Order 25, the amount “$2,200” has been amended to “$3,000”.
8 February 2021	In Order 26, the amount “$3,000” has been amended to “$2,200”.
8 February 2021	In order 27, the amount “$25,000” has been amended to “$30,000”.
8 February 2021	In order 28, the amount “$30,000” has been amended to “$25,000”.

ORDERS

		NTD 1 of 2019
BETWEEN:	AUSTRALIAN BUILDING AND CONSTRUCTION COMMISSIONER Applicant
AND:	ARTURO MENON First Respondent ; PAUL TAYLOR Second Respondent ; ROLAND CUMMINS (and another...