The Fair Work Ombudsman has commenced legal action against the Construction, Forestry and Maritime Employees Union (CFMEU) and its former Victorian Secretary John Setka.
In proceedings commenced in the Federal Court, the Fair Work Ombudsman alleges Mr Setka intended to coerce the Australian Football League (AFL) into dismissing former Australian Building and Construction Commissioner Stephen McBurney.
The Fair Work Ombudsman further alleges that Mr Setka took adverse action against Mr McBurney because he had or had exercised workplace rights, including initiating and/or participating in more than 50 court actions against the CFMEU in that previous role as the Australian Building and Construction Commissioner between 2018 and 2023.
The legal action concerns a series of widely reported public statements Mr Setka made last year in relation to Mr McBurney, who is the AFL's Head of Officiating.
The Fair Work Ombudsman alleges that in statements published between 31 May and 14 June 2024, Mr Setka threatened that the CFMEU would disrupt or delay AFL building projects if the AFL did not dismiss Mr McBurney.
The FWO's allegations include that Mr Setka authorised the publishing of a post on the CFMEU Vic-Tas' Facebook page that stated, "Good luck to the AFL with any plans to build any projects, as our members will not be building or supporting any projects that the AFL are involved in" whilst the AFL supported Mr McBurney.
In a statement later published in The Australian newspaper, Mr Setka allegedly said, "They will regret the day they ever employed him". Mr Setka allegedly also gave a radio interview with 6PR which included his comments that, "...as far as we're concerned, we will pursue the ex-ABCC till the ends of the earth...".
After the AFL confirmed Mr McBurney was remaining in his position, Mr Setka, in statements published in the Herald Sun newspaper, allegedly said the CFMEU would not be co-operating with requests for some overtime and weekend shifts on AFL jobs which would make it unachievable to meet deadlines and add to construction costs.
The FWO alleges that the conduct of Mr Setka, and through him the CFMEU, contravened sections of the Fair Work Act that make it unlawful to (i) try to coerce an employer to not employ a person; and (ii) advise, encourage and/or incite, or attempt to coerce, an employer to take adverse action against a person because the person had exercised a workplace right.
Fair Work Ombudsman Anna Booth said the filing of legal proceedings reflected the seriousness of Mr Setka's alleged conduct.
"We are alleging that Mr Setka, and through him the CFMEU, have engaged in deliberate unlawful conduct against a former senior public official," Ms Booth said.
"No one is above the law. It is important that we make it clear to all involved in Australia's workplace relations system that this type of allegedly threatening and coercive behaviour will not be tolerated.
"Mr McBurney had a lawful workplace right to perform his role as the Australian Building and Construction Commissioner without having to fear that he would later be targeted by the type of conduct we allege Mr Setka engaged in.
"We expect all workplace participants, including unions and their officials, to follow the law. As an independent regulator we will continue to take action to deter unlawful conduct.
"Adverse action and coercion inherently undermine the operation of workplace laws and employees' ability to exercise their lawful rights.
"Improving compliance across the building and construction industry is a priority for the Fair Work Ombudsman, and we will continue to hold to account those acting unlawfully," Ms Booth said.
The Fair Work Ombudsman is seeking penalties against Mr Setka and the CFMEU in relation to their alleged contravention of sections 340 and 355 of the Fair Work Act.
Mr Setka faces penalties of up to $18,780 per alleged contravention and the CFMEU faces penalties of up to $93,900 per alleged contravention.
A first directions hearing date in the Federal Court in Melbourne has not yet been set.
The proceedings commenced by the Fair Work Ombudsman specifically relate to statements published by the following media outlets (in addition to Facebook as above): The Australian, 3AW, 6PR, The Herald Sun, The Age and 9 News.
