Court weighs penalty for John Setka after workplace law breach

Setka, 62, was once one of the most powerful and well-connected men in Victoria as head of the CFMEU. The Fair Work Ombudsman said the campaign was a 14-day operation between May 31 and June 14, 2025, when the court heard Setka called for McBurney's sacking during news interviews, media statements and a Facebook post saying he was "(not) wanted dead or alive". McBurney had participated in more than 50 proceedings against the CFMEU during his time with the Australian Building and Construction Commission (ABCC).

For the Fair Work Ombudsman, Marc Felman, KC, called the contravention very serious and described Setka's statements as part of a calculated operation. "This is a very, very serious contravention," he said. "It's not someone coming onto a worksite swearing inappropriately at a safety manager." Felman rejected Setka's account that he was responding to media interest rather than driving it, pointing to appearances on 3AW, 6PR, Nine News, The Age and a return to The Australian. "There can be no question this is a media campaign," he said.

Setka's barrister, Margo Harris, denied the contraventions were deliberate or calculated, saying the Facebook post was a common technique the union used when campaigning. "This time it was against Mr McBurney," she said, adding that there was no evidence her client actively sought media attention. Harris agreed when pressed by the judge that Setka had said "yes" on live radio to wanting McBurney sacked, and conceded that encouraging the AFL to do so was unlawful. She told the court Setka was unemployed and undergoing divorce proceedings, with his current financial situation unknown; the court heard he was caring for his elderly mother.

McBurney led the ABCC from 2018 to 2023 after a five-year appointment by the Turnbull government. The commission was stripped of its powers shortly after the Albanese government was voted into power in 2022 and officially closed in 2023, and McBurney joined the AFL in March 2024.

Both Setka and the CFMEU accepted that the contraventions occurred. For the union, Andrew White said 292 officers were automatically terminated and a further 150 employees left after an administrator was deployed, and that 39 of the 46 former employees who received civil penalties had since departed. He described an "opportunity for renewal" and a "new robust form of unionism", and called for any financial penalty to be less than $20,000, against a maximum of nearly $100,000. Felman noted that the union's new statement of expectations did not include a provision requiring organisers to comply with the law. "It's a body that's reforming, not a body that's reformed," he said.

The CFMEU's administrator, Michael Crosby, acknowledged in a court statement that reform was not complete and that some members had been terminated for refusing to sign the statement of expectations. Justice John Snaden will hand down any financial penalties at a later date. The judge said: "There is a little bit to unpack." The royal commission into corruption on government building sites resumes on Monday.