Gregor v Setka - [2010] FMCA 690

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREGOR v SETKA

[2010] FMCA 690

INDUSTRIAL LAW – Alleged contravention of s.767(1) of the Workplace Relations Act 1966 – consideration of whether “otherwise an improper manner” limited in operation by terms of s.767(1) – whether improper conduct requires intent.

Workplace Relations Act 1966, ss.729, 755, 756, 757, 758, 760, 765, 765(2), 767, 767(1), 769
Building and Construction Industry Improvement Act 2005, s.57
Evidence Act 1995, ss.44, 64, 140
Occupational Health and Safety Act2004 (Vic)
Workplace Relations Regulations2006 (Cth)

Darlaston v Parker [2010] FCA 771
Hogan v Riley [2010] FCAFC 30
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd [2010] FCA 90
John Holland Pty Ltd v Construction, Forestry, Mining and Energy Union (2009) 186 IR 408
R v Byrnes & Hopwood (1995) 183 CLR 501
Pine v Doyle (2005) 143 IR 98

Applicant:

MURRAY GREGOR

Respondent:

JOHN SETKA

File Number:

MLG 783 of 2009

Judgment of:

Burchardt FM

Hearing dates:

23 & 24 June 2010

Date of Last Submission:

12 August 2010

Delivered at:

Melbourne

Delivered on:

21 September 2010

REPRESENTATION

Counsel for the Applicant:

Ms J. M. Maclean

Solicitors for the Applicant:

Clayton Utz

Counsel for the Respondent:

Mr P. G. Priest QC with Mr C. W. Dowling

Solicitors for the Respondent:

Slater & Gordon

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 783 of 2009

MURRAY GREGOR

Applicant

And

JOHN SETKA

Respondent

REASONS FOR JUDGMENT

Introductory

On 6 March 2008 the respondent, Mr Setka, attended the ANZ Docklands site. He did and said a number of things described at paragraphs 9 and 10 of the statement of claim (paragraphs 10 and 11 of the amended statement of claim).
The substantive issue in the case, although there are a number of subsidiary issues, is whether what Mr Setka did amounted to a contravention of s.767(1) of the Workplace Relations Act 1966 (“WR Act”).
For the reasons which follow I think Mr Setka did indeed contravene s.767of the WR Act.

Formal and/or agreed matters

There is no doubt that Mr Gregor is an Australian Building and Construction Inspector appointed pursuant to s.57 of the Building and Construction Industry Improvement Act 2005 (Cth) (“the BCII Act”). See exhibit A1.
Mr Gregor is also clearly entitled to make an application under s.769 of the WR Act for penalties for contraventions of ss.756 and 767(1) of the WR Act where the application relates to a matter that involves a building industry participant or building work (see statement of claim paragraph 1(b)).
It is conceded by the defence that Mr Setka was at all material times:
a)an officer and vice president of the Victorian Divisional Branch of the Construction and General Division of the Construction, Forestry, Mining and Energy Union (CFMEU);
b)a building industry participant under section 4(1) of the BCII Act;
c)a person who held an entry permit under Part 15 of the WR Act; and
d)a person who held an entry permit…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gregor v Setka

Details

AGLC: Gregor v Setka [2010] FMCA 690
Case: [2010] FMCA 690
Decision Date: 21 September 2010

CaseChat Overview and Summary

In Gregor v Setka, the Federal Magistrates Court of Australia was tasked with determining whether John Setka, a union official, contravened section 767(1) of the Workplace Relations Act 1996 by acting in an improper manner during his visit to the ANZ Docklands site on March 6, 2008. Setka, an officer of the Construction, Forestry, Mining and Energy Union, attended the site with other union officials to address safety concerns. The dispute centred on whether Setka's conduct, which included making threatening statements to site managers, constituted an improper manner as defined under the Act. The court had to decide whether Setka, while exercising his rights under an occupational health and safety law, acted in an improper manner and if intent was required for such a finding.

The court found that Setka's actions were indeed improper. The evidence showed that Setka made derogatory and threatening remarks to the site managers, which the court deemed as improper conduct. The court relied on the High Court's definition of impropriety, which involves a breach of standards expected of a person in a given position. The court concluded that Setka's conduct fell well below these standards. Furthermore, the court determined that intent was not a necessary component for finding improper conduct under section 767(1). The court found that Setka's actions, including his threatening gestures and statements, were intentional and thus constituted improper conduct. The decision was influenced by the recent judgment in Darlaston v Parker, which held that intent is not required for improper conduct under the Act. Consequently, the court found Setka in breach of the Act and listed the matter for a mention to determine the appropriate penalties.

Orders