GREGOR v Setka (No.2)

[2010] FMCA 973

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GREGOR v SETKA (No.2) [2010] FMCA 973

INDUSTRIAL LAW – Contravention of s.767 of the Workplace Relations Act – consideration of matters relevant to penalty – consideration of whether declarations appropriate.

Workplace Relations Act 1966, ss.767, 767(1)

Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8
A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466

Applicant: MURRAY GREGOR

Respondent: JOHN SETKA

File Number: MLG 783 of 2009

Judgment of: Burchardt FM

Hearing date: 19 November 2010

Date of Last Submission: 19 November 2010

Delivered at: Melbourne

Delivered on: 20 December 2010

REPRESENTATION

Counsel for the Applicant: Ms J. Maclean

Solicitors for the Applicant: Clayton Utz

Counsel for the Respondent: Mr C. Dowling

Solicitors for the Respondent: Slater & Gordon

ORDERS

1. A penalty of $6,000 be imposed on the respondent for his contraventions of s.767 of the Workplace Relations Act described in these Reasons for Judgment. 

2. The respondent pay the $6,000 into the Consolidated Revenue Fund within 30 days. 

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLG 783 of 2009

MURRAY GREGOR

Applicant

And

JOHN SETKA

Respondent

REASONS FOR JUDGMENT

Introductory

1. On 29 September 2010 I gave judgment on liability in this matter. This decision deals with the question of what orders or declarations should be made and what, if any, penalty imposed upon Mr Setka by reason of the contravention I found him to have made of s.767(1) of the Workplace Relations Act 1966 (“the WR Act”). 

2. For the reasons that follow, I have determined that Mr Setka should pay a penalty of $6,000 in respect of his conduct, such sum to be paid into the Consolidated Revenue Fund. 

The law

1. In Stuart-Mahoney v Construction, Forestry, Mining and Energy Union (2008) 177 IR 61 at [40], Tracey J set out a non-exhaustive range of considerations to which regard may be had in determining whether conduct calls for a penalty and, if so, the amount of such penalty.

2. At [40] his Honour said:

   “In my view, potentially relevant and applicable considerations for determining the appropriate penalty for a contravention of the BCII Act include:

   ·    The nature and extent of the conduct which led to the breaches.

   ·    The circumstances in which that relevant conduct took place.

   ·    The nature and extent of any loss or damage sustained as a result of the breaches.

   ·    Whether there had been similar previous conduct by the respondent.

   ·    Whether the breaches were properly distinct or arose out of the one course of conduct.

   ·    The size of the business enterprise involved.

   ·    Whether or not the breaches were deliberate.

   ·    Whether senior management was involved in the breaches.

   ·    Whether the party committing the breach had expressed contrition.

   ·    Whether the party committing the breach had taken corrective action.

   ·    Whether the party committing the breach had cooperated with the enforcement authorities.

   ·    The need to…