In Australia, statutory duties are imposed on trade union officers in several jurisdictions. In the 1990s, New South Wales, Queensland and Western Australia introduced duties for officers of employee and employer organisations registered under industrial relations legislation. In 2002, the Federal Government introduced officers’ duties for federally-registered organisations. These federal and state duties have been modelled on the directors’ duties that are found in corporations legislation. This article examines the origins and evolution of these duties at the NSW and federal level and also considers the debates regarding the appropriateness of applying corporate law duties to trade union officers. The article shows how the introduction and development of the duties imposed on trade union officers, and the penalties for contravening them, have been politically contentious — much more so than the development of the duties imposed on company directors.
While legislative frameworks for the registration and regulation of employee and employer associations have been in place at a state and federal level for many years, the imposition of general statutory duties upon officers of these registered organisations is a relatively recent phenomenon in Australia. Statutory duties were imposed on officers of state-registered organisations well before officers’ duties came into effect under the federal regime — New South Wales introduced legislative duties in 1991, Western Australia did so in 1995 and Queensland followed in 1997, but it was not until 2002 that the Commonwealth Parliament passed legislation that placed general duties on officers in relation to the financial management of federally-registered organisations. The South Australian and Tasmanian regimes do not subject officers of registered organisations to any general duties, and neither does Victoria.
The officers’ duties under the Commonwealth, NSW, Queensland and Western Australian industrial relations legislation have been based upon the legislative duties of company directors. Amendments to the statutory duties (and the sanctions and remedies for their breach) have often involved updating the wording to reflect that of the equivalent corporations legislation provisions. Some commentators and politicians have argued that there are significant differences between unions and companies, and that therefore the imposition of a corporate model of regulation on trade unions is ‘inherently flawed’. In particular, the Labor Party has often challenged the appropriateness and necessity of applying corporate law standards to union officers. However, once officers’ duties have been introduced by a Liberal or Coalition Government, subsequent Labor Governments have never completely repealed the duties. The application of corporate law standards to trade unions and their officers now appears to be established. However, proposals to expand and strengthen the officers’ duties, and the related sanctions and remedies for contravening them, remain the subject of politically charged debates.
This is the first detailed Australian study of the origins and the development of the statutory duties of officers of registered organisations. In this article, we trace the history of the duties of trade union officers under the NSW and Commonwealth industrial relations legislation to demonstrate the politically-contested nature of the evolution of these duties. That is, the two main political parties in Australia, the Liberal and Labor parties, have always had some level of disagreement concerning the imposition of legislative duties and associated penalties on trade union officers, at both a state and a federal level. We have chosen to study the NSW and federal jurisdictions because NSW was the first jurisdiction to enact duties for officers of registered organisations, and the federal duties are significant as most employees fall within the Commonwealth system.
In Part 2 of this article, we discuss the development and evolution of the NSW duties. Part 3 considers the introduction of the duties at the Commonwealth level, as well as some significant changes that occurred to those duties and sanctions following the Health Services Union (‘HSU’) investigations. In Part 4 we consider the debates on the appropriateness of applying corporate standards to trade union officers and we further examine the politically-contentious nature of the duties imposed on trade union officers, particularly when compared to the development of the duties imposed on company directors.
This abstract and introduction are extracted from an article originally published in the Australian Business Law Review in 2019, vol 47, p 23. The footnotes have been omitted from this reproduction. The full article is also available for download online on SSRN.