In Whose Interests? Fiduciary Obligations of Union Officials in Bargaining

Abstract

This article examines the proposition that trade union officials owe fiduciary obligations to those they represent in enterprise bargaining under the Fair Work Act 2009 (Cth), as held by the Royal Commission into Trade Union Governance and Corruption. It is argued that there are several formidable hurdles to such a conclusion, including the character of the bargaining regime under the Act, and the potential clash between the contention of the Royal Commission and the existing view of union officials as owing fiduciary obligations to the union as a continuing organisational entity. The importation of individualistic private law norms, if the fiduciary view of union bargaining were to be adopted by the courts, would challenge some fundamental conceptions of collective bargaining and the role of unions. While ‘sweetheart deals’ of the kind exposed by the Royal Commission may call for new legal responses, this article concludes that fiduciary law is not an appropriate legal tool for regulating union behaviour during bargaining.