CFMEU courts war on Labor in High Court challenge

The CFMEU is examining a potential High Court challenge to federal laws forcing the union’s construction arm into administration, as angry left-wing union leaders in Victoria declared they would be willing to fund a rearguard legal action.

United Firefighters Union boss Peter Marshall says CFMEU legislation should be challenged in the High Court. Picture: Aaron Francis

The CFMEU is examining a ­potential High Court challenge to federal laws forcing the union’s construction arm into administration, as angry left-wing union leaders in Victoria condemned the “unprecedented” attack on ­unions, and declared they would be willing to fund a rearguard legal action.

United Firefighters Union boss Peter Marshall backed a High Court challenge after obtaining a legal opinion from senior ­barrister Herman Borenstein KC, that the bill expressly overlooked the views of CFMEU members “by the abrogation of the rules of natural justice”.

“I think all unions should challenge it in the High Court,” Mr Marshall told The Australian.

Electrical Trades Union Victorian secretary Troy Gray said the legislation was a “betrayal” of the union movement by a Labor government and a number of state union secretaries from different unions across the country were appalled at the lack of due process.

“If there was a call to arms to fund a court case, it would not surprise me in the least if there were half a dozen unions that would stump up for it,” he said.

CFMEU national secretary Zach Smith said the union was “considering our legal options” but was yet to make a decision about any legal challenge.

Sources said a High Court ­challenge on constitutional grounds was one option the union was examining.

“This legislation is dangerous,” Mr Smith said.

“These laws undermine the democratic rights of our members to control their union, to control their future.

“It undermines procedural ­fairness and natural justice, and the democratic functioning of trade unions.”

Workplace Relations Minister Murray Watt said he would not be surprised “if we see the CFMEU running off to court”.

“I think anyone who knows the record of the CFMEU will recognise that they are very likely to try to find ways to legally challenge this,” Mr Watt said. “We have drafted this legislation in such a way to withstand as much legal challenge as we possibly can.”

Mr Smith continued on Tuesday to back the union’s NSW ­secretary, Darren Greenfield, who was charged in 2021 for allegedly taking bribes, and the union’s ­Victorian assistant secretary Derek Christopher, whose house was raided in 2017 as part of a police investigation into claims that contractors supplied building materials in return for favourable treatment. Both men have denied any wrongdoing.

Mr Smith said he would seek to stay on at the union when it went into administration despite the positions of CFMEU officials being vacated.

“I want to continue serving the union,” he said.

“Things are tough but that’s when you dig in and I’m determined to see through this period for members. They deserve to have some control over the process. I am their elected representative so my intention, if I’m not removed, is to turn up every day and make sure the CFMEU is stronger for our members, to make sure we can rebuild from this, and to make sure their interests are protected.”

Mr Smith remains a member of the ALP national executive and said it was not his intention to ­resign from the position “at this point in time”.

ACTU secretary Sally ­McManus said on Tuesday the ACTU had urged the CFMEU to consent to administration to avoid legislation ”but unfortunately, they were unable to do so”.

“Building workers need a strong, clean, and democratic union,” Ms McManus said. “There is no place in the union movement for criminal elements, violence, or intimidation.

“The period of administration must result in the union being ­returned to the members as soon as practical and every effort made to ensure the interests of members are protected.”

Mr Marshall said the legislation was “simply bad law” and “more importantly, it’s a decision that will go down in history as the foundation and template to attack any union that is out of favour”. “The fundamental principles in law that are afforded to everyone in our community being ­procedural fairness and natural justice in this legislation are not afforded to the members of the CFMEU,” he said.

He said any unions that ­believed they were immune from similar legislation applying to them in the future were “simply not facing the realities of this ­decision to attack unions through a political process”.

“Having been subject to similar attacks, the fundamental principle of natural justice and procedural fairness has already been considered by the High Court and reinforced as a right and a principle that must be applied in law,” Mr Marshall said. “Having said that, no political party or legislative process has the right to extinguish natural justice principles in law to enable a fair go for all.”

In his legal opinion about the operation of the CFMEU administration bill, Mr Borenstein said the powers given to the administrator were “akin to installing an in-house policeman”.

“In summary, the bill imposes a very strict and broad regime for the imposed administration and contains no accommodation for the views or voices of the ­members whose interests are being directly affected,” he wrote. “In fact, the views and voices are expressly overlooked by the abrogation of the rules of natural justice.”

Mr Gray said the CFMEU ­deserved its day in court to test the allegations against the union but instead the government was turning an industrially strong union into a “glorified accountancy agency”.

“This will be the template moving forward to remove ­competent and campaigning ­unions,” he said. “I know people, even within the union movement, are happy at the stacks on and they’ve got a scalp with the CFMEU. I don’t think people are seeing the precedent that this sets. I think it’s disgusting. Labor and the union movement will regret it because workers will be worse off by this knee-jerk reaction by the IR minister.”