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

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

The Full Court held that Mr Setka contravened s 767(1) of the Workplace Relations Act 1996 (Cth) by acting in an improper manner in the exercise of occupational health and safety entry rights, but the penalty imposed by the Federal Magistrate was manifestly excessive given the conduct, maximum available penalty, and absence of prior contraventions. A penalty of $3,000 was appropriate.

Jurisdiction
Australia
Judgment Date
28 July 2011
Procedural Posture
Appeal / On Appeal From the Federal Magistrates Court of Australia
Outcome
Appeal allowed. Penalty reduced.
Legal Topics
['right of Union Official to Enter Work Site' 'occupational Health and Safety Legislation' 'contravention of S 767 Workplace Relations Act' 'improper Conduct' 'penalty Manifestly Excessive' 'standard of Proof Under S 140 Evidence Act']
['industrial Law'] ['right of Union Official to Enter Work Site' 'occupational Health and Safety Legislation' 'contravention of S 767 Workplace Relations Act' 'improper Conduct' 'penalty Manifestly Excessive' 'standard of Proof Under S 140 Evidence Act']

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Procedural Posture

Appeal / On Appeal From the Federal Magistrates Court of Australia

Legal Issues

  1. 1 ['Whether the appellant contravened s 767 of the Workplace Relations Act 1996 (Cth)' "Whether the appellant acted in an 'improper manner'" "Whether 'improper' conduct requires intent" 'Whether penalty imposed was manifestly excessive' 'Whether evidence supported inference that appellant was exercising or seeking to exercise rights under Workplace Relations Act']

Ratio Decidendi

The Full Court held that Mr Setka contravened s 767(1) of the Workplace Relations Act 1996 (Cth) by acting in an improper manner in the exercise of occupational health and safety entry rights, but the penalty imposed by the Federal Magistrate was manifestly excessive given the conduct, maximum available penalty, and absence of prior contraventions. A penalty of $3,000 was appropriate.

Court Disposition

Appeal allowed. Penalty reduced.

Orders

  • ['The appeal be allowed.' 'The orders made by the Federal Magistrates Court on 20 December 2010 be set aside.' 'A penalty of $3,000 be imposed on the respondent for contravention of s 767 of the Workplace Relations Act 1996 (Cth).' 'The respondent pay the penalty of $3,000 into the Consolidated Revenue Fund within...