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The former construction boss doubled down on his comments in defence of the claim. He said he was justified in his comments and that, taken as a whole, they show he explicitly said he was not trying to influence the AFL’s employment processes.
He added that he made the comments while he was acting in the “pursuit of the CFMEU’s objective of better working and living conditions for CFMEU members”.
Stephen McBurney pictured in 2018, during his time as head of the powerful Australian Building and Construction Commission.Credit: Alex Ellinghausen
“Setka believed that the manner in which McBurney had discharged his duties and exercised his statutory powers as the [ABCC] Commissioner had offended that objective by acting with zealotry in respect of his anti-unionism by attempts to intimidate CFMEU members and CFMEU members’ families.”
To support that claim, Setka pointed to comments he made to the Herald Sun in June 2024 about McBurney: “If one of our members sat in the shed in a workplace health and safety dispute … they get a call from the f--king ABCC, and they roll up to their f--king house to intimidate their wives and children.”
Setka’s offence at ABCC officers making home visits stands in contrast with his own activities.
In 2024, this masthead obtained CCTV footage showing him dumping a suitcase scrawled with the word “dog” at the home of a fellow senior union official during a nighttime visit.
Setka has also denied the FWO’s allegations that he sought to break workplace laws by encouraging CFMEU members to work to rule on AFL sites, thus slowing down projects, saying he made it clear in his comments that he could not enforce any such rule.
His defence notes that work-to-rule is a type of industrial action that can only be taken by members if they successfully vote for it, after which it would be considered legal conduct.
He also alleges there is no evidence of delays or problems at AFL building projects.
The former union boss also plans to rely on messages from a WhatsApp group of the AFL’s media team and other executives – including then head of umpiring Laura Kane – he says shows the AFL did not take his threats seriously and viewed them as a publicity stunt because the AFL had no current projects that involved CFMEU workers.
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In one message from the chat reproduced in Setka’s defence documents, AFL head of media Brian Walsh tells the group: “Reality is we have nothing at the moment I don’t think. Is a PR play which has [sic] perfectly to remind of their power?”
An unidentified member of the group chat responded: “Can we have a chat about whether we put anything out. Will defer to your judgement on these matters but is there also a play of ignoring her [sic] that could suck the life out of the story? I might be being naive.”
Setka’s defence argues the AFL had prepared a statement affirming its commitment to McBurney’s employment on June 12 amid Setka’s flurry of media appearances in which he made the allegedly offensive comments.
The CFMEU administration declined to comment on Setka’s counter claim as the matter was before the court.
The parties in the FWO case have now agreed to a timetable to file various documents to the court and have agreed to attend mediation in early November. The matter will return to court in the second half of November.
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