Trade union officials have been held to owe fiduciary obligations to their union based on an analogy with company directors. The case law focuses on misuse of union resources, as seen in the recent high profile case brought against former MP Craig Thomson. The Royal Commission on Trade Union Governance and Corruption headed by Justice Heydon has applied fiduciary law in a new context: the Royal Commission held that union officials had breached a fiduciary obligation to members by overseeing a ‘sub-standard’ enterprise agreement at the same time the union was being paid money by the company. The Royal Commission argued that the union official who bargains on behalf of members is an agent for the members, or is agent-like to an extent that a fiduciary obligation arises. Payments to the union, even if the officials don’t personally benefit, is a conflict of interest which Equity will remedy.
In this paper, Dr Murray considers whether or not a relationship of agency (or something akin to that) does in fact form between union officials and members when bargaining under the Fair Work Act Enterprise Agreement provisions. She argues that there are some barriers to such a conclusion. She then argues that the ascription of fiduciary obligations in these circumstances will have serious ramifications for the union movement and, paradoxically, for the capacity of the Act to foster efficiency and productivity increases through bargaining.
Dr Jill Murray is an Associate Professor at La Trobe Law School. She has degrees in Arts, Law and Industrial Relations from Melbourne and Oxford Universities. She has published widely on Australian and international employment law.
Date: Wednesday 19 April 2017
Time: 11.45pm to 1.00pm. Light refreshments will be provided from 11.45am-12noon.
Venue: Level 2, La Trobe Law School Moot Court (Social Sciences building, Room 232), La Trobe University, Bundoora