Setka v Gregor (No 2)

Case [2011] FCAFC 90


FEDERAL COURT OF AUSTRALIA

Setka v Gregor (No 2) [2011] FCAFC 90

Citation: Setka v Gregor (No 2) [2011] FCAFC 90
Appeal from: Gregor v Setka [2010] FMCA 690
Parties: JOHN SETKA v MURRAY GREGOR
File number: VID 10 of 2011
Judges: LANDER, TRACEY & YATES JJ
Date of judgment: 28 July 2011
Catchwords:

INDUSTRIAL LAW – right of union official to enter work site – arises under occupational health and safety legislation –limited in operation by s 767 Workplace Relations Act – contravention of s 767 - whether respondent acted in an “improper manner” - construction of s 767 - whether “improper” conduct requires intent - whether penalty imposed was manifestly excessive

EVIDENCE – s 140 of Evidence Act – whether evidence supported inference that appellant was exercising or seeking to exercise rights under Workplace Relations Act

Legislation:

Acts Interpretation Act 1901 (Cth) ss 13, 15AB
Building and Construction Industry Improvement Act 2005 (Cth)

Crimes Act 1914 (Cth) s 4AA

Evidence Act 1995 (Cth) s 140
Occupational Health and Safety Act 2004 (Vic) ss 81, 87, 88, 89
Workplace Relations Act 1996 (Cth) ss 756, 760, 767, 769

Cases cited: AB v The Queen (1999) 198 CLR 111 applied
Australian Ophthalmic Supplies Pty Ltd v McAlary-Smith (2008) 165 FCR 560 referred to
Briginshaw v Briginshaw (1938) 60 CLR 336 referred to
Construction, Forestry, Mining and Energy Union v John Holland Pty Ltd (2010) 186 FCR 88 discussed
Darlaston v Parker (2010) 189 FCR 1 discussed
Hogan v Riley (2010 182 FCR 583 cited
Markarian v The Queen (2005) 228 CLR 357 applied
Pine v Doyle (2005) 141 IR 98 cited
Date of hearing: 12 May 2011
Place: Melbourne
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 51
Counsel for the Appellant: Mr P G Priest QC & Mr C Dowling
Solicitor for the Appellant: Slater and Gordon
Counsel for the Respondent: Mr J L Bourke QC and Ms J M Maclean
Solicitor for the Respondent: Clayton Utz

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 10 of 2011

ON APPEAL FROM THE FEDERAL MAGISTRATES COURT OF AUSTRALIA
BETWEEN:

JOHN SETKA
Appellant

AND:

MURRAY GREGOR
Respondent

JUDGES:

LANDER, TRACEY & YATES JJ

DATE OF ORDER:

28 JULY 2011

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1. The appeal be allowed.

2.The orders made by the Federal Magistrates Court on 20 December 2010 be set aside.

3.In lieu thereof it be ordered that:

(i)A penalty of $3,000 be imposed on the respondent for contravention of s 767 of the Workplace Relations Act 1996 (Cth).

(ii)The respondent pay the penalty of $3,000 into the Consolidated Revenue Fund within 30 days of the date of this order.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 10 of 2011

ON APPEAL FROM THE FEDERAL…

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Setka v Gregor (No 2) [2011] FCAFC 90
Case
[2011] FCAFC 90
Decision Date

CaseChat Overview and Summary

The case of Setka v Gregor (No 2) involved Mr Setka, a union official, and Mr Gregor, a respondent who was involved in an incident at a work site. Mr Setka was found to have contravened section 767 of the Workplace Relations Act 1996 (Cth) by acting in an improper manner while exercising his rights under occupational health and safety legislation. The dispute centred around whether Mr Setka's conduct, which included verbal abuse and threats towards Mr Gregor and another manager, was considered "improper" as defined by the Act, and if so, whether the penalty imposed was excessive. The Federal Magistrate had found that Mr Setka's actions were indeed improper and imposed a penalty of $6,600, which was later reduced by the appellate court.

The primary legal issues the court had to address were whether the term "improper" in section 767 required intent and whether the penalty imposed by the Federal Magistrate was manifestly excessive. The court examined the evidence and the context of Mr Setka's actions to determine whether his conduct was justified by the circumstances, and if the penalty was commensurate with the severity of the offence. The court had to balance the seriousness of Mr Setka's actions against his role as a union official and his intent to address safety issues at the site.

The court's reasoning involved a detailed analysis of the evidence presented and the legislative framework governing union officials' rights to enter work sites. The court found that while Mr Setka had a legitimate purpose in attending the site, his manner of addressing the managers was indeed improper. The court also held that the penalty imposed was excessive, taking into account the circumstances and the fact that Mr Setka's actions, though improper, were not premeditated. The court reduced the penalty to $3,000, reflecting a more proportionate response to the misconduct.

The final orders of the court were to allow the appeal against the penalty imposed by the Federal Magistrate, set aside the original orders, and impose a new penalty of $3,000 on Mr Setka. Mr Setka was required to pay this amount into the Consolidated Revenue Fund within 30 days of the order.

Orders

Orders of the court

1. The appeal be allowed.

2. The orders made by the Federal Magistrates Court on 20 December 2010 be set aside.

3. In lieu thereof it be ordered that:

(i) A penalty of $3,000 be imposed on the respondent for contravention of s 767 of the Workplace Relations Act 1996 (Cth).

(ii) The respondent pay the penalty of $3,000 into the Consolidated Revenue Fund within 30 days of the date of this order.

Note:

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 769 provided for the imposition of a pecuniary penalty on a person who contravened a civil remedy provision. Under s 769(2) the maximum pecuniary penalty which could be imposed on an individual for a single contravention was 60 penalty units. This corresponds with the monetary amount of $6,600: see s 4AA of the Crimes Act 1914 (Cth).THE FEDERAL MAGISTRATE’S DECISION The Federal Magistrate found that Mr Setka had contravened s 767 of the Act. He found that Mr Setka had attended the site to deal with safety issues and did so as a holder of a permit under the OHS Act. He had regard to a range of matters including:·Mr Setka’s complaint, immediately on entering the site, that it was a “fucking pigsty”.·The avowed purpose of the officials who attended the site in company with Mr Setka which was to deal with health and safety issues. ·The taking of photographs, by one of them, of works on the site which were said to present a risk to the health and safety of workers.·The tenor of Mr Setka’s exchange with the managers.·The conduct of a meeting (albeit one not attended by Mr Setka) shortly after the incident to deal with health and safety issues.·The parts of the cross-examination of Mr Keeble recorded above at [10]. He held that: “[y]elling the sort of abuse and threats that [Mr Setka] did is plainly improper on any view of the meaning of those words.” His Honour concluded:“In the light of the evidence as a whole, it is clear that Mr Setka intended to act in the fashion that he did. 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.” The Federal Magistrate recognised that the maximum penalty available to him was $6,600. He accepted that reasonable grounds existed for Mr Setka’s concern that there were problems at the site that posed risks to the health and safety of workers. This concern did not, however, justify Mr Setka’s conduct towards the two managers. The Federal Magistrate referred to Mr Setka being “in a violent temper” when he “shouted” at them. He concluded that:“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.”THE APPEAL TO THIS COURT Mr Setka challenged the Federal Magistrate’s finding that he contravened s 767 of the Act and, in the event that he is unsuccessful on this point, further complained that the penalty which was imposed on him was excessive.

Ratio Decidendi

Legal Principle Established

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