GREGOR v Setka (No.2)
[2010] FMCA 973
•20 December 2010
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
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.
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
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”).
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
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.
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 ensure compliance with minimum standards by provision of an effective means for investigation and enforcement of employee entitlements.
· The need for specific and general deterrence.”
It will be readily apparent that some of those considerations are not of any moment in this instance and others are. It should also be noted that, while that was a case under the BCII Act, it is clear that these considerations are applied in other industrial civil penalty proceedings.
It should be noted that this list is not in any sense a checklist or a formula to be followed (see Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith [2008] FCAFC 8). I also bear in mind the observations of Giles J in A & L Silvestri Pty Limited v Construction, Forestry, Mining and Energy Union [2008] FCA 466 at [6], where his Honour said:
“A number of authorities discuss the factors to be taken into account in fixing a penalty, many of them borrowing from related fields, including the criminal law. It is sufficient to refer to the recent case of Kelly v Fitzpatrick [2007] FCA 1080; (2007) 166 IR 14 as an example. However, the discretion is at large. There are no mandatory statutory criteria and it is wrong to regard factors seen as relevant by one court as statutory criteria. Indeed, lists of factors can confuse an essentially straightforward task and lead to over-elaborate reasoning.”
Here it is conceded by both parties that the maximum penalty that may be imposed is $6,600.
The facts
As I found in my Reasons for Judgment, on 6 March 2008 Mr Setka attended the ANZ Docklands site, a very large site, and said to a
Mr Keeble and a Mr McGregor words to the following effect:
“This job’s a fucking deathtrap and a disgrace. If you kill anyone on this job I’m going to quit my fucking job and get you.”
Mr McGregor replied:
“Are you threatening me?”
to which Mr Setka responded:
“I’m not fucking threatening; I’m fucking promising. I will get you and you.”
When saying, “I will get you and you,” Mr Setka pointed at each of
Mr Keeble and Mr McGregor. In my Reasons for Judgment I characterised the conduct of Mr Setka as improper and said, at [91]:
“Any suggestion that he would regard it as appropriate to swear at people in the way that he did and offer what on any view were significant threats to their personal safety cannot, on any view, possibly be thought to be otherwise than intentional.”
I went on to say, at [92]:
“Given the findings of fact I have made and the view I take of the application of the law, it is clear that Mr Setka acted in an inappropriate manner by saying the words that he clearly did say to Mr Keeble and Mr McGregor; and the gesture of pointing to them while threatening them to make it clear that they were being threatened is part and parcel of this conduct.”
The submissions of the applicant
The applicant’s written submissions seek a declaration that, on 6 March 2008, by reason of the matters in paragraphs 9 and 10 of the Statement of Claim, the respondent contravened s.767(1) of the WR Act, and the imposition of a penalty on him for that contravention (paragraph 4 applicant’s written submissions filed 15 October 2010). At paragraph 13 of those written submissions the applicant set out a number of matters said to support the proposition that Mr Setka’s conduct constitutes a serious contravention and warrants imposition of a penalty at, or close to, the maximum.
I do not accept the submission at paragraph 13(a) that the fact that the ANZ Docklands project was one of the largest in Melbourne then underway is a matter of any relevance at all. The conduct would be the same, even if it were to take place on a very small site.
Likewise, I do not accept the submission at paragraph 13(c) of the submissions that Mr Setka’s conduct was disproportionate to “the concerns that were ultimately raised and resolved in the appropriate safety forum”. I am not in a position to evaluate with any precision the nature of the safety concerns that were extant on the day. I will return to this matter later.
Likewise, while it is clear that Mr Setka has a prior record of engaging in breaches of the law, those breaches took place decades ago and are now, at most, of only slight historical significance.
Likewise, I do not think that it is overly helpful to trawl through other previous decisions of courts that have dealt with contraventions either of the WR Act or other industrial legislation. To do so runs the risk of the sort of over-elaboration referred to by Giles J in Silvestri. Such matters are not, of course, irrelevant, but each case necessarily turns on its own facts.
The other matters raised by the applicant are all relevant in my view and I will return to them when I deal with my conclusions.
Respondent’s submissions
The submissions made on behalf of Mr Setka concentrated strongly upon the alleged extent of safety deficiencies on the site on 6 March 2008. Much was sought to be made of the allegedly provocative conduct of the officers of BLL, of the serious safety deficiencies then extant, and the likely effect of these matters upon Mr Setka as a union official with a long history in the industry, and being a person who one would reasonably conclude would be very concerned about the safety of workers on the site.
It was also put that, while Mr Setka said the words that constituted the contravention, there was no evidence the two persons to whom he said them were put in fear as a result. It was also submitted that it could not be concluded that when Mr Setka said he would “come and get”
Mr Keeble and Mr McGregor, that this constituted a threat of physical violence.
Counsel for Mr Setka pointed to the fact that Mr Keeble had answered a question at P-56 under cross-examination as follows:
“So you understood that what Mr Setka was saying to you was that, if anyone was killed on the site, he’d make you accountable. Isn’t that right?‑‑‑Yes.”
At P-74 Mr McGregor had said in answer to a question:
“he would, the expression that’s used was “get you” and
Mr Keeble, is that right?‑‑‑Yes.
Yes. And certainly you understood what he was saying, it was if somebody’s was killed he would attend to you?‑‑‑Yes.”
Before me, counsel for Mr Setka submitted that the Court should not conclude that this phraseology was a threat to commit an act of violence. At P-12 counsel submitted:
“And when Mr Setka refers to criminals, what he’s referring to is it might be a criminal prosecution, was the suggestion by the cross-examination. And it might equally follow, your Honour, that what’s being talked about is a prosecution and “accountable” or “attend to” could equally, in our submission, mean be prosecuted.”
Counsel went on to say:
“They’re in the heat of this discussion as it’s occurring and there’s no evidence from them that they took it as a threat of violence, no evidence at all. And the question was glaringly absent from my learned friend in examination-in-chief from them.”
Counsel for Mr Setka submitted that any penalty should not be imposed at the maximum level. In oral submissions he referred to three matters that differentiated this case from such a category. The first was the absence of any physical violence. The second is that the obstruction did not cause any significant or undue delay to the project. The third is the absence of conduct arising out of base motives.
Consideration
As I made clear to the parties during the hearing, and as, indeed, I expressed in my Reasons for Decision on liability, I have no doubt that Mr Setka was concerned at least in large part with safety matters when he visited the site. I am not prepared to form any more precise conclusion about Mr Setka’s motivation, because he did not give evidence.
Likewise, although Mr Setka’s counsel submitted that the conduct of Mr Keeble and Mr McGregor had been provocative, particularly in relation to taking photographs of Mr Reardon, there is no evidence that Mr Setka knew of this at the time the contravention occurred. He was not present when the photographs were taken.
Given the remarks Mr Setka made, it is clear that he had formed the view that the site was a deathtrap. Whether that was an overstatement or not, I am not in a position to say. What I can say is that it was conceded by the witnesses called for the applicant that various aspects of the safety on the site on that day were inadequate. It was reasonable for Mr Setka to have concerns.
What of course was not reasonable was the way he expressed those concerns. I have found his conduct to amount to behaving in an improper manner.
I roundly reject the submission that Mr Setka’s conduct should be assessed on the basis contended for by him that, when he said he was going to “get” Mr Keeble and Mr McGregor, what he intended to indicate was that there might be a prosecution at a later time.
Mr Setka, on any basis, was in a violent temper at the time he said the particular words. He was in no way hesitant to make it clear that he meant what he said and said what he meant. When Mr McGregor first asked, “Are you threatening me?” he made it clear beyond doubt that it was:
“I’m not fucking threatening, I’m fucking promising. I will get you and you.”
It is true that there is no evidence before the Court that either
Mr Keeble or Mr McGregor were actually scared by these remarks or put into fear. I note, however, that in re-examination, when Mr Keeble was asked whether the sort of language Mr Setka used was part of the normal cut and thrust of the industry that he, Mr Keeble, had been in for over 20 years, Mr Keeble said, “No.”
I have no doubt that when Mr Setka shouted at Mr Keeble and
Mr McGregor, he was indicating an intention, in the event of a fatality, to inflict some sort of violence upon them. No other conclusion can sensibly be made from the words that he used. The submissions to the contrary, and to the effect that he meant there might be a prosecution, are, I regret to say, risible. Prosecution after all does not require physical attendance.
People’s responses to threats of violence obviously vary from person to person. Some are courageous, others not. Some people have phlegmatic and tolerant personalities, others do not.
One might surmise that those who rise to positions of authority on building sites tend to have to be fairly robust simply to survive, but I accept in the ultimate that, in this instance, there is no evidence one way or the other as to exactly how Mr Keeble and Mr McGregor felt when the words were said to them. The artful cross-examination of them by senior counsel for the respondent cannot disguise, however, the fact that Mr Setka was threatening some (albeit unspecified) sort of violent retribution. It should be noted that, scarcely surprisingly, the questions in cross-examination were carefully put to leave open the inference later contended for. The questions and answers do not, however, rob Mr Setka’s words of their obvious meaning and intent.
Looking at the matters that are relevant from the applicant’s submissions, I would deal with a number of them as follows:
a)
This was a serious episode involving Mr Setka screaming at
Mr Keeble and Mr McGregor, employing foul language and threatening them in the clearest possible way.
b)Mr Setka is a senior officer of the CFMEU. As a senior officer, he should be setting a better example.
c)This was not conduct in any way contributed to by the CFMEU as an organisation. It was plainly conduct of Mr Setka alone.
d)Mr Setka has exhibited no contrition.
e)Mr Setka has taken no corrective action.
f)Mr Setka has not cooperated in any way with the applicant.
It should be noted that a number of these considerations are not to be taken to make Mr Setka’s conduct worse. The lack of contrition, cooperation with the authority and corrective action do not call for the imposition of any greater penalty. Rather they mean that Mr Setka does not obtain the benefit of these matters as would be the case if they were present.
As earlier indicated, I do not regard the size of the project as being of any significance at all, and the previous contraventions by Mr Setka do not in my view materially alter the landscape given that they took place so long ago.
Specific and general deterrence
In the context of the facts of this case, both specific and general deterrents are of considerable significance. Here, Mr Setka is a senior officer of a large national union. The conduct in which he engaged was highly reprehensible.
It is true that one could think of a worse case. This case did not involve any actual physical violence. It was of brief duration and caused, to all effects and purposes, no interruption to the work on the site at all. These are all relevant matters.
But if one is considering the concept of abusive, threatening tirades, this would clearly be towards the maximum end of the scale.
Clearly, Mr Setka needs to be the subject of deterrence in the sense that the Court should mark its disapprobation of his behaviour and compel him to appreciate more readily in the future that he must control himself.
It is also important for the Court to emphasise in its decision to all players in this industry that the robust culture referred to by both parties in their submissions cannot legitimise conduct of this sort. It is to be deterred on a general level.
Conclusion
Bearing in mind all the matters to which I have referred, it seems to me that this is not a case that calls for the imposition of the maximum penalty of $6,600. Nonetheless, it was on any view a serious breach of a provision that requires persons not to engage in an improper manner. The appropriate level of penalty, bearing in mind all the relevant considerations is in my view $6,000. I will order that Mr Setka pay a penalty in that sum to the Consolidated Revenue Fund.
The applicant has sought the declaration which I referred to at the start of these Reasons for Judgment. There is a continuing measure of uncertainty, at least in my mind, as to whether declarations ought ordinarily be made in cases of this sort. For my part, I respectfully agree with those who maintain there is no point in declarations if they add nothing to the outcome. Given that I will order Mr Setka to pay the penalty of $6,000 for his contravention of s.767 of the WR Act for the reasons contained in my Reasons for Judgment in any event, I do not think a declaration would, in these circumstances, add any clarity or further insight to anyone who reads the orders.
In the circumstances, I decline to make the declaration sought. I have prepared draft minutes of orders. I will hear from counsel as to whether there are any other matters that are required to be addressed.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 20 December 2010
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