Impact of regulatory and other changes on Australian unions’ strategies and campaigns,2023–2024

Abstract

This article reviews the challenges and opportunities facing Australian trade unions in 2023–2024. It covers industry challenges for specific unions and the changes introduced by the Federal Labor Government through its Closing the Loopholes Amendments to the Fair Work Act. It argues that the Australian Council of Trade Unions (ACTU) and individual unions need to take the opportunity provided by the Federal Government's legal changes to make gains for members so that they are difficult to overturn if the federal government changes. It analyses campaigns and strategies of unions around challenges specific to them: for example, the recruitment of gig workers by the Transport Workers’ Union and campaigns by the ACTU and the Media and Entertainment Arts Alliance around inappropriate use of artificial intelligence by employers seeking to replace workers and usurp employees’ ownership rights to their work. It considers amalgamations (mergers) and disamalgamations (demergers) of concern for some unions. It discusses allegations of inappropriate behaviour facing the Construction and General Division of the Construction, Forestry and Maritime Employees’ Union leading to its forced administration as a concern and possible impediment for the entire union movement if not resolved effectively.

In Australia, the federal Australian Labor Party (ALP) emerged from the colonies and state-based labour parties founded by nascent trade unions prior to federation in 1901. There have been ten periods of federal ALP government, the most recent being the Anthony Albanese one elected in May 2022. With the traditional close relationship between the ALP and trade unions, the question to address in the current industrial relations context is: Does the federal election victory of this Labor Government herald a new era of rejuvenation for unions? Since the early 1990s, Australian trade unions have experienced significant membership decline with the proportion of employees belonging to unions falling from 41.1% to 12.5% (from 45.5% to 11.4% for men and 35.9% to 13.6% for women) between 1992 and 2022 (ABS, 2022). The weakening in representation and mobilisation has been exacerbated by industry changes such as a focus on Industry 4.0 with its shrinking traditional manufacturing in favour of digitisation. The increasing use of Artificial Intelligence (AI) has raised further threats to members’ jobs across various industries, including professional and creative occupations, as have industry and company restructurings and company closures (e.g. in the mining and domestic building sectors). Environmental concerns among various stakeholders including labour and management and the emergence of the circular economy as a priority for both employers and unions are threatening jobs in traditional blue-collar industries where union membership has traditionally been high.

These industry changes were addressed by a Jobs and Skills Summit in September 2022. The Summit saw 149 invited participants representing unions, employers, civil society, and governments meet with the Prime Minister and Treasurer to address ‘shared economic challenges’ such as creating a better trained and more productive workforce while addressing skills shortages. The Summit also sought to improve job security and wages through creating safe, fair, and productive workplaces with reduced barriers to employment. Its aim was to create greater employment opportunities in Australian communities and industries (Treasury, 2022). One of the first outcomes from the Summit was the passing of the Fair Work Legislation Amendment (Secure Jobs, Better Pay) Act 2022 (SJBP Act) (Forsyth and McCrystal, 2023). This amendment became operational in 2023. Further amendments under the Closing Loopholes No. 2 Act 2024 were passed.

This article argues that the Australian Council of Trade Unions (ACTU) and individual unions need to grasp the opportunity provided by the current Federal Government's legal changes to entrench gains for members so that they are difficult to overturn should there be change of federal government. With many industrial relations legislative loopholes closed by the Federal Labor Government, there are opportunities provided to unions to increase their power to achieve multi-employer bargaining outcomes for members in industries where workers have had restricted bargaining power under enterprise bargaining. Thus, unions may be able to increase their power and again make strategic choices ensuring changes to meet current challenges.

On the negative side, there have been allegations of underworld figures and ‘bikie’ connections to the Construction and General Division (CGD) of the Construction, Forestry and Maritime Employees Union (CFMEU) executive in several states. The allegations, as reported by the Channel Nine Group of Media in July 2024, focused on the State of Victoria but then spread to other states. Disharmony within the CFMEU, the union movement more generally, and the ALP at state and federal levels has been exposed to media and public scrutiny as a result. The CGD has been placed in administration from 23 August 2024 for a period of up to five years with the Attorney-General-appointed administrator, Mark Irving KC, overseeing the process. As administrator, he has the authority to make significant changes within the CGD, including removing, expelling, or disqualifying members or office holders, actions which he has already initiated. It is hoped that the process will result in a modern and legally compliant CGD that in the future will continue to represent its members fully.

Nonetheless, this negativity towards the union movement is outweighed by the positive outcomes to be gained under the Closing the Loopholes amendments. These amendments include increased protections and job security for workers in a range of industries which, in turn, will increase potential new members’ and union influence in industry and community. In the long term, unions will need to move beyond legislative reliance and adopt new strategies for campaigning and professionalisation, including greater use of all forms of media to portray an active and positive public face. This article provides, through case studies of select unions and the ACTU, analysis of the impact of regulatory and other changes on the potentially increased power of the Australian union movement – including not just the legal and institutional changes mentioned but also structural and social changes identified by Ellem et al. (2020). The case studies have been selected to analyse the opportunities and challenges experienced by a diverse range of unions in responding to the legislative amendments and specific industry challenges.

The changing legislative context for Australian unions: An enabler for regaining power

Like employer associations, unions are often regarded as reactive rather than proactive in their policy and strategy formation and formulation. However, Wright (2023) argued the previously restrictive legislation around union activities and behaviours has driven unions into this position. The 2022 ALP victory provided opportunities for unions to influence legislative change including two tranches of Closing the Loopholes Amendments in 2023 (Part 1) and 2024 (Part 2) to the Fair Work Act 2009 (Clth). The changes provided general protections for union workplace delegates, beginning in December 2023, and increased rights from 1 July 2024 when representing members and potential members in industrial matters (Fair Work Commission [FWC], 2024a). The changes also provide for reasonable communication with members about their industrial interests, reasonable access to workplaces and facilities, reasonable access to paid time for relevant training purposes (small businesses are exempt), and enterprise agreements with delegates’ rights clauses to override the delegates’ clauses in industry awards (Doyle and Brennan, 2024). There are also increased access rights for union officials around entering workplaces to assist an elected or an appointed workplace health and safety representative (Cant et al., 2024). The Federal Labor Government's ‘reforms are aimed at ensuring employees have support from trained workplace representatives who can help them access their workplace rights [which] is important for ensuring all employees can take advantage of new laws to promote collective bargaining and gender equality at work’ (Burke quoted in Wright, 2023).

Changes to labour hire arrangements were also introduced including the Same Job Same Pay (SJSP) provisions which mean that labour hire workers engaged by a host employer receive the same pay as the employer's direct employees if certain legal requirements are met. From a union perspective, this means that test cases must be run site by site where a union has members; the Mining and Energy Union (MEU) is one of the first unions in 2024 to bring applications before the Fair Work Commission (FWC) (MEU, 2024). The FWC will make an assessment as to whether an SJSP application is reasonable and may make an order setting a ‘protected rate of pay’ in line with the relevant enterprise agreement rates. Pay rises due to Protected Rate of Pay orders come into effect in November 2024 (MEU, 2024). Other unions such as the Transport Workers’ Union (TWU), the Australasian Meat Industry Employees’ Union (AMIEU), and the Australian Manufacturing Workers’ Union (AMWU) have also made applications for SJSP increases.

The changes to the Fair Work Act 2009 (Clth) following the passing of Closing the Loopholes Amendments Part 2 include workplace reforms covering workers who lack agency. Specifically, in mid-2024 there was the introduction of a detailed framework of ‘employment-like’ rights and protections for workers who would otherwise be classed as contractors but are now deemed to be ‘regulated workers’, including those in road transport and employee-like workers in the gig economy. To manage this new FWC jurisdiction, Vice President Ingrid Asbury will be assisted by Commissioner Scott Connolly, who will serve as deputy national practice lead for road transport. Commissioner Oanh Tran will be deputy national practice lead for the gig economy, and Deputy President Ian Masson will manage the new agreements stream for transport and gig workers (Workplace Express, 2024a). This means that the FWC can make minimum standards orders regarding pay and conditions and set guidelines for regulated workers; publish road transport contractual chain orders and guidelines; and register collective agreements for regulated workers and regulated businesses (Cant et al., 2024; FWC, 2024a).

Other changes that may assist unions include multi-enterprise agreements that can occur when a union is involved in negotiations where several employers have agreed to bargain together, although a right to protected industrial action is forfeited. Intractable bargaining workplace declarations can be sought in certain circumstances which may result in a resolution whereby either the parties seek FWC assistance to reach mutual agreement or else they may be directed (Workplace Express, 2024b). This saves union time and resources but does not guarantee an outcome that a union wants for its members, although ‘employees and unions cannot “go backwards” on contested terms and conditions in the FWC arbitration process’ because ‘contested terms can generally be no less favourable than current enterprise agreement conditions’ (Hanrahan et al., 2024). The government has also repealed changes made in December 2020 by the previous federal government to the Fair Work (Registered Organisations) Act which originally made it difficult for unions to demerge from an amalgamated union identity. The changes allow for demerging within two to five years after the amalgamation and became effective on 27 February 2024 (Fair Work Ombudsman [FWO], 2024). This change allows individual unions to distance themselves from other sections or divisions of a merged union and re-establish their occupational or industry identity which can be a membership drawcard.

The risk with relying on legislation to increase union power is that a change of government can see gains removed with a change in legislation. Unions cannot assume the continuity of union-friendly government and need to continue to develop alternate strategies to advance their objectives.

Industry changes

Industries change due to internal and external drivers. Technology remains a major challenge to unions around their members’ job security; for example on the waterfront, in mining, in construction, in food processing (e.g. robotics in abattoirs), and the challenges of AI replacing people in creative and education industries. The Commonwealth Scientific and Industrial Research Organisation (CSIRO) has projected the closure of approximately 240 Australian mines by 2040, with the loss of thousands of jobs, with the assumed jobs growth area being mining rehabilitation (CSIRO, 2023). However, this is of little benefit for members whose jobs are in or associated with mining as it cannot be assumed they would welcome retraining or even that this training will be provided. Such projected industry changes challenge unions’ ability to protect members’ jobs, although a discussion of resources and power theories is outside the scope of this article (see Ellem, 2024; Ellem et al., 2020 for more on these theories).

Recent years have seen a significant number of building and construction businesses going into receivership with the loss of thousands of trades peoples’ jobs, either as direct employees of the company or in the contracting supply chain. However, major state-funded infrastructure projects have continued in many states and major cities across Australia, creating jobs for union members in the infrastructure, building, and construction unions, notably giving the Victorian CGD of the CFMEU a strong platform for enterprise bargaining resulting in significant wage increases for members of five percent per year over four years (Marin-Guzman and McCubbing, 2024).

The loss of construction workers’ jobs with building companies’ closures may be offset by large-scale commercial and residential development sectors. These offer opportunities to unions’ coverage rights such as the multi-coverage and tri-divisional Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union. The Electrical Trades Union (ETU) in various states has identified opportunities to offer new services to potential members and to find ways of directly contacting, recruiting, and organising these workers around new initiatives such as sustainability and the Circular Economy, with training provided in specialist areas such as green jobs, apprenticeships, and clean energy (ETU National Branch, n.d.). Other services like comprehensive and discounted insurance may also be an option for the ETU to consider as other unions such as Police Associations have these packages for members and their families. The TWU also has packages and the Union Assist service available for owner-driver members.

The TWU is making membership gains since experiencing losses suffered because of the downturn in the aviation sector in the ‘COVID-19 years’ of 2020–2021 when Qantas illegally terminated the employment of 1700 baggage handlers and other staff (Byrne, 2023; McGuik, 2023; Qantas Airways Limited v Transport Workers Union of Australia, 2023). The TWU is using the SJSP legislative amendments in its attempts to win improved pay and conditions for workers in outsourced entities in the aviation industry through its ‘Safe & Secure Skies’ campaign (TWU, 2024). The approximately 200 gig workers already recruited by the TWU have been working on its campaign for minimum rights which influenced the Federal Government's amendments after the 2022 Jobs Summit (Workplace Express, 2024c). The union continues to campaign, recruit, and organise workers from the gig economy and road transport using the FWC's extended powers regarding ‘employee-like’ forms of work (FWC, 2024b). The TWU, by proactively using these legislative changes, is embedding itself in two industries – transport and the ever-growing gig economy. These developments provide a new model and set of strategies for unions confronting changes in existing industries and the emergence of new industries. The TWU's focus on employee-like forms of work and owner-drivers – effectively small businesses operating as sole traders – raises the prospect of union coverage of Small and Medium Sized Enterprises’ (SMEs) employees and the self-employed.

SMEs continue to be sources of opportunity and challenge for unions. SMEs represent more than 97% of all businesses in Australia (ABS, 2024) and 66% are ‘a business of 1’ (ABS, 2023). SMEs are a major part of the Australian economy which includes platform work and the gig economy (O’Keeffe, 2024; Orr et al., 2023; Williams et al., 2024; Wood and Lehdonvirta, 2021). Changes to the Fair Work Act 2009 (Clth) following the passing of Closing the Loopholes Part 2 were significant workplace reforms covering the road transport industry and the gig economy, commencing mid-2024. The issue remains that, while gig-work is moving into the industrial arena of unions and the FWC, it has not been seen in the context of self-employment which in Australia is conflated with the area of independent contracting (AiGroup, 2023; Boersma and Bedford, 2023; FWO, n.d.; Underhill and Quinlan, 2024). Although the self-employed or independent contractors have previously been ignored by unions in Australia, they are viewed differently in the United Kingdom where the Association of Independent Professionals and the Self-Employed (IPSE) sees them as a ‘thriving community since 1999’ where IPSE has ‘been helping freelancers, contractors, consultants, independent professionals and interims for over 20 years’ (Association of Independent Professionals and the Self-Employed, 2024) when it comes to employment contracts, working conditions, and pay.

Community, another U.K.-based group, claims to be a ‘union’ and ‘a proud champion of the over four million strong self-employed workers and freelancers across the UK’ (Community, 2024). Both IPSE and Community may be role models for Australian unions to assist them in developing strategies for increased coverage of the gig-economy. (This applies less to the TWU and the Media and Entertainment Arts Alliance (MEAA), both of which already have gig-workers as members.) Community is ‘lobbying for much needed change like extending sick pay, paid parental leave, and better health and safety protections for the self-employed, while maintaining the freedom and flexibility that … [this] work brings’ (Community, 2024). IPSE and Community are collective voice-oriented organisations which run education and training workshops and represent their members through campaigns for a low-cost membership subscription in much the same way that unions operate on behalf of their members. Such strategies to attract non-traditional union members can include campaigns via social media, whether by individual unions or confederations (Carneiro and Costa, 2022), and also the formation of online communities as mentioned by the ACTU's Australian Unions Online Communities (ACTU, n.d.).

Although not a current industry change but rather a recurring concern for the ACTU and other unions arising from past industry practice is the James Hardie sponsorship deal with the National Rugby League's Parramatta Eels from 2025 (Parramatta Eels, 2024). The relationship between the company and the club goes back to the club's successful 1980s’ period at a time when the company had ceased using asbestos in its building products (Parramatta Eels, 2024). However, the sponsorship and publicity may traumatise victims of the terminal cancers previously caused by asbestos products. The struggle for compensation for victims of cancers such as asbestosis and mesothelioma still continue (Workplace Express, 2024d) as additional cases are diagnosed. When Holland and Pyman (2011) examined the ACTU's corporate and community campaign against James Hardie, their analysis of the outcome was positive with the view that a resolution was in sight. The Asbestos Injuries Compensation Fund had been established in 2006 whereby James Hardie Industries committed to funding a trust in New South Wales which would pay compensation awarded against former James Hardie companies. However, James Hardie has pursued various legal challenges since then, including attempting to pay victims in instalments to avoid lump sum payments (Workplace Express, 2014) as victims usually die within two years of diagnosis (Kember, n.d.). Thus, even when a union campaign appears to have achieved its outcome, an employer can still initiate new tactics to avoid financial consequences of past behaviours, necessitating the allocation of additional union resources to continue fighting for justice and compensation. The ACTU, Unions NSW, and asbestos groups have formally contacted the club to voice concerns about the four-year sponsorship deal. Nonetheless, the club has ignored the concerns raised with the sponsorship forging ahead.

Thus, there are a number of challenges and opportunities beyond simply the legislated benefits of the Closing the Loopholes amendments. Despite the increasing professionalism of Australian unions, a perennial problem confronting them remains a lack of resources (Bamber et al., 2022). However, the professionalism of staff in modern unions may assist them in addressing the potential challenges posed by technology and AI.

Unions and AI: A focus on the ACTU and the MEAA

As the ACTU is the umbrella body for its affiliate unions, it plays a significant role in creating unifying objectives and accompanies policies for the Australian trade union movement. The ACTU (2024a) identified that the Australian union movement had generally been ‘positive and proactive’ in its responses to AI and machine learning technologies, seeing opportunities for members to be more productive in the workplace. Australian unions have been considering the implementation of such technologies in a manner that will enhance productivity while ensuring workers enjoy the benefits of productivity gains through improved pay and conditions. AI was a concern expressed by unions at the 2022 Jobs Summit (Treasury, 2022). AI risks for workers were identified, with industry impacts likely to be uneven but perhaps disproportionality borne by women workers either through their jobs being undertaken by AI or in practices such as AI discrimination in hiring (Kohler, 2024; UN Women, 2024). However, there is counter-evidence to show that AI maybe more likely to hire women in certain circumstances (Avery et al., 2023; Black, 2023; Leibbrandt, 2024).

On 26 March 2024 the Australian Senate established the Select Committee on Adopting Artificial Intelligence to inquire into opportunities and impacts of the uptake of AI technologies in Australia (Australian Parliament, 2024). Written submissions were invited and the Select Committee will report in late 2024. The ACTU identified that the terms of reference for the Committee did not specifically include the effects of AI on Australian workers, their skills, their job security, and their careers or upon the broader labour market (ACTU, 2024a). The ACTU's submission was particularly concerned with inappropriate and dehumanising employer practices around the use of AI for monitoring and surveillance, hiring and rostering workers, wages setting, job design and job quality, as well as disempowering of workers through a lack of consultation about how AI is used (ACTU, 2024a). ACTU Assistant Secretary, Joseph Mitchell, highlighted that ‘AI is present in nearly every industry and we [the union movement] need to tackle this problem head-on [because] the risks are clear: workers are being subjected to unreasonable unblinking surveillance, being hired and fired by algorithm, having their creative output stolen by companies, and being discriminated against by bosses’ bots’ (ACTU, 2024b). AI was a major agenda item at the 2024 ACTU Congress with concern expressed for ‘workers’ rights [being] central to AI. [With] Australian Unions … seek[ing] to advance the rights of workers with respect to the adoption and use of AI, by: (a) advocating for law reform; (b) defending and advancing workers’ rights; and (c) campaigning and collective bargaining, privacy, liberty, and freedom’ (ACTU, 2024c).

Australian Services Union, Shop and Allied Distributive Employees’ Union, Finance Sector Union of Australia, Australian Nursing and Midwifery Federation, and the MEAA made their own submissions to the House Standing Committee on Employment, Education and Training's Inquiry into the Digital Transformation of Workplaces. AI took a central place at the 2024 ACTU Congress where the MEAA, the Finance Sector Union, the National Tertiary Education Union (NTEU), and the Health Services Union (HSU) all participated in a plenary discussing key challenges and possibilities of AI for unions (Scalmer and Macdonald, forthcoming).

The MEAA is an example of a union whose members are negatively affected by Generative AI. The MEAA is running a Stop AI Theft campaign on behalf of Australian artists, creators, and journalists who fear AI technologies will be used to steal their work, which is already occurring (Yeomans et al., 2023). This threatens their creativity, intellectual property, professional jobs, wages, and way of life (MEAA, 2024a, 2024b, 2024c). Many of the MEAA's concerns are shared by the Australian Association of Voice Actors, particularly around Large Language Models (LLMs) and their use in AI training. To support its submission, the MEAA undertook a survey of its members to identify their key concerns with AI impacting their jobs and careers. Inspired in part by the longest strike by writers and actors Hollywood had experienced – six months (Yeomans et al., 2023), the MEAA is campaigning for wage increases and protections against AI that are modelled on the agreement reached by its U.S. counterpart, Screen Actors Guild-American Federation of Television and Radio Artists (SAG-AFTRA).

The MEAA's Chief Executive, Erin Madeley, identified Australian industrial relations as the greatest challenge the union and its members face when it comes to industrial action because ‘isn’t set up for industry strikes … so [Australian performers] can’t do what the Americans have just done because [the MEAA] does not have that ability’ (quoted in Yeomans et al., 2023). In Australia, performers negotiate individually for contracts with their employers and there are big differences between television, film, streaming, and live performances and differences between those behind the cameras and those in front (Ingersoll, 2023a, 2023b). It is hoped that by using the Federal Government's stronger protections for workers in the gig economy, the union will be able to gain wage increases and protections for its members.

The MEAA has a professional team who work to ensure the union's strategy is co-ordinated and high profile by making government submissions and public presentations (MEAA, 2024a). For example, presenting a submission to and appearing at the Senate Select Committee on Adopting Artificial Intelligence hearing, the MEAA executive and members are seeking protection from AI, arguing that AI ‘presents the most profound change in the relationship between work and production since the advent of the Internet’ (Madeley quoted in MEAA, 2024a); and that ‘[i]f left unchecked, the increased use of AI tools in the media, arts, and creative industries will lead to mass job losses and the end of intellectual property as we know it’ (Madeley quoted in MEAA, 2024a). MEAA members and executive want the Federal Government to pass legislation requiring disclosure of all data used to train LLMs and to establish legal protections for creators to consent to and be paid for their work being used for such purposes (MEAA, 2024b). The MEAA believes that ‘[g]uaranteeing worker consultation will help ensure that AI will not be used to unnecessarily replace work or undermine conditions’ (MEAA, 2024a). Legislation must also prevent appropriation and reproduction by non-Indigenous people of First Nations’ culture and creative practices, something that appears to have become entrenched in certain areas of creativity and arts (MEAA, 2024b). Australia, unlike the European Union (EU), does not currently have legislation addressing the risks of AI. The AI Act (Regulation (EU) 2024/1689 laying down harmonised rules on artificial intelligence) “provides AI developers and deployers with clear requirements and obligations regarding specific uses of AI” (European Commission, 2024). This EU legislation could provide the Australian Federal Government with a model on which to base legislation which is being requested by Australian unions. The EU Act also seeks to reduce administrative and financial burdens for business, in particular SMEs, which could also benefit those who are self-employed in the creative industries in Australia.

The significance of the MEAA's position on protecting intellectual property rights has consequences for other unionised occupations such as tertiary education where the NTEU and its members are currently confronting job losses through the compulsory recording of lectures, seminars, and other classroom activities. The recordings are held centrally by universities via uploading to subject websites. These centralised holdings have the potential to be used to train LLMs and to infiltrate academic research and writing, along the lines of the CSIRO-published science magazine Cosmos. ‘Cosmos contributors reacted … with disbelief [to the publication of six AI-generated explainer articles on the magazine's website], saying their work had been used to develop an AI service that generated articles and, in their opinion, undermined their role as journalists’ (Purtill, 2024). The NTEU's academic members are also facing the fact that publishers such as Taylor and Francis, owner of Routledge, have sold to Microsoft access to authors’ published research as part of an AI partnership (Battersby, 2024). These are reasons why the MEAA is campaigning to ensure that its members in all areas of coverage keep control of their intellectual and creative rights and are also drivers for NTEU campaigns to protect intellectual rights of members. It is obvious that developments in AI are outpacing federal government legislative responses.

Legislative responses in other areas have had positive impacts for trade unions, namely the 2023 repealing of legislative restrictions on the ability of unions to disamalgamate.

Amalgamations and disamalgamations

Although in the later 1980s and early 1990s, the ACTU pushed for amalgamated industry ‘super’ unions, it now leaves these decisions to individual unions and their members. The case of the March 2018 amalgamation of the Construction, Forestry, Mining and Energy Union with the Maritime Union of Australia and the Textile, Clothing and Footwear Union of Australia to create the CFMMEU has proved most controversial. The then national executive of the CFMMEU stated that the new union ‘would hit the ground running’ (O’Connor quoted in Wright, 2018). Employer organisations such as the Master Builders Australia had opposed the merger because of concern about this new union to indeed be a ‘super’ union (Workplace Express, 2018a; Wright, 2018). While the new union's national executive members were initially positive in their outlook, it did not take long before internecine struggles between Divisions of the CFMMEU started with a right of entry dispute in April 2018 at Queensland's Geofabric manufacturing plant (Workplace Express, 2018b).

Further internal ructions occurred with Victoria's CGD accused by the union's national secretary and secretary of the Forestry and Manufacturing Division, Michael O’Connor, of ‘poaching’ members. Tony Maher, the Mining and Energy Division's national president, launched similar allegations of member poaching (Marin-Guzman, 2019). This was the result of a rule change in the national union that enabled the Division with most members to have most power over union decision-making, and this Division was the CGD (Workplace Express, 2022). In late 2020, O'Connor resigned as national secretary of the CFMMEU following a split with the CGD Victorian branch secretary, John Setka, over membership poaching, a power grab by Setka involving the South Australian branch leadership, and interference in internal union elections resulting in ‘an overall “breakdown of governance structures”’ (Workplace Express, 2022). The 2023 legislative repeal of the 2020 prohibitions on disamalgamations made it possible for the MEU to disamalgamate from the CFMMEU in December 2023, leaving the trimmed down entity as the Construction, Forestry and Maritime Employees’ Union (FWC, 2023). Following the 2023 repeal, the Forestry and Manufacturing Division is also in the process of disamalgamation from the CFMEU.

The AMIEU is looking to merge with the AMWU (Journeaux, 2023). A long history of animosity between the Bacon Factory Union (BFU) and the AMIEU extending back to the formation of the BFU in 1946 (Bowden, 1996) was given by the BFU as the reason for its decision to deregister rather than amalgamate with the AMIEU. Friendlier relations between the AMIEU and AMWU make their proposed merger more likely (Journeaux, 2023). This amalgamation would therefore be similar to the 2019 merger of United Voice and the National Union of Workers to form the United Workers’ Union (Workplace Express, 2019). While smaller unions amalgamating into larger unions lose a craft, occupational, or an industry identity and organisational traditions that may attract members, tradition can only go so far in ensuring the survival that ultimately protects members.

Infighting within an amalgamated union can hinder an agreed way forward for the whole union movement, especially in a large, multi-divisional union as has been seen with the CFMMEU, subsequently the CFMEU.

The 2024 CFMEU ‘imbroglio’

The opportunities offered by the Closing the Loopholes amendments have been undermined by the actions alleged to have been undertaken by the CFMEU's CGD. The loss of social and industrial legitimacy from the public's perception is apparent with the 12 July 2024 resignation of the Victorian CGD secretary, John Setka. This followed Channel Nine investigations – via The Age, The Sydney Morning Herald, Australian Financial Review, and 60 Minutes – into his union branch and alleged criminal associations (McCracken, 2024). Setka's leadership had been controversial – for example his expulsion from the ALP in 2019 for his inappropriate comments about domestic violence campaigner, Rosie Batty, and subsequent calls by the ACTU secretary, Sally McManus, for him to resign as Victorian CGD secretary. She stated that ‘[w]hile John is elected by his members, he also needs to consider the interests of working people and the wider union movement’ (McManus quoted in Karp, 2019). In response, Setka has always proclaimed that his accountability lay with his members. On his 2024 resignation, ‘[he] said he had “proudly served this union in the capacity of an official for close to 40 years and as secretary for the past 12 years”’ (quoted in McKenzie et al., 2024a) and he had followed his immigrant father into the construction industry and the union (the former Builders Labourers Federation) (Workplace Express, 2024e). Indeed, the Victorian CGD reported 2023 membership of 32,242 and net assets of approximately $87 million (Workplace Express, 2024e). Setka claimed the reason for his unexpected July resignation was ‘false accusations’ and ‘malicious attacks’ made about him and his union (Mitchell and Brown, 2024; Offer and Ward, 2024). Nevertheless, there have been further investigative reports that ‘tough’, ‘powerful’ and ‘feared’ leadership of a blue-collar union can lead it onto dangerous ground (McKenzie et al., 2024a). Gains made on behalf of members through enterprise bargaining maybe have been achieved in part through union standover tactics and fear (McKenzie et al., 2024a; Mitchell and Brown, 2024; Smethurst et al., 2024).

The Victorian secretary is only one of many CGD officials across several states who is being investigated for accusations of criminality and thuggery and the Division has been placed in forced administration (FWC, 2024c; Grattan, 2024a; O’Leary, 2024). It could still face deregistration despite the fact that deregistration ‘mainly relate[s] to repeated breaches of awards, agreements, FWC orders or court injunctions’ and not criminal misconduct (Forsyth, 2024). The downside of deregistration for members across all branches of the CGD is the possible loss of hard-won wages and conditions through the annulling of awards and agreements returning them to minimum wages and conditions. Deregistration would also move the militant elements of the union out of the industrial relations system and may ironically result in loss of restraint and extreme behaviours (Forsyth, 2024).

The behaviour of a particular branch tarnishes all branches, the union movement, and arguably the ALP at a time when unions and workers are starting to make headway again after the Closing the Loopholes changes introduced by the Federal Labor Government. Media and public pressure have demanded that the ALP refuse CFMEU donations (Grattan, 2024b) and pursue a thorough inquiry into the union, its activities, and its officials (FWC, 2024c) to ensure ‘the effective functioning of branches within the CFMEU's [CGD] for the benefit of their members’ (FWC, 2024c). While there were several proposed administration schemes considered (FWC, 2024d; Workplace Express 2024f), the Federal Government with support from the Coalition on 20 August saw legislation passed to put the CFMEU's CGD branches into administration (Workplace Express, 2024g). When facing administration, the CFMEU's response came from its National Construction Division's secretary, Zach Smith (also ACT branch secretary), that the union was ‘never given an opportunity to address issues’ and that its members were angry and wanted the union to disaffiliate from the ALP (Smith quoted in Karp, 2024). The federal Attorney General, Mark Dreyfuss, and the FWC appointed an independent administrator, Victorian barrister Mark Irving KC, to investigate the CFMEU's CGD (FWC, 2024d). While Irving dismissed most office holders, Zach Smith remains as national secretary (Bonyhady, 2024; Workplace Express, 2024h).

Bad publicity and alleged inappropriate behaviour are not limited to the CGD and its officials. The secretary of the Victorian branch of the HSU No. 1 branch (also known as the Health Workers’ Union), Diana Asmar, has become embroiled in her own legal and ethical entanglement over donations. Ironically, the donations totalling $186,000 came from the Victorian CGD and its then secretary, John Setka, to support her internal HSU election campaign (Workplace Express, 2024i). The allegations are now the focus of a multi-agency investigation. The HSU national secretary, Lloyd Williams, has called for Diana Asmar to ‘step aside from all union positions’ and have ‘no ongoing or influential role in the branch’ while investigations continue into her possible malfeasance regarding irregularities in the branch's financial situation (McKenzie et al., 2024b; Workplace Express, 2024j). She has been stood down from the HSU national executive (Workplace Express, 2024k). These negative allegations have also been given public airing and have undermined the HSU's Victorian members’ confidence in their branch leadership.

Conclusion

The election of the ALP to federal government and the subsequent Jobs Summit in 2022 have resulted in the Closing the Loopholes Amendments to the Fair Work Act 2009 (Clth). These amendments have provided opportunities for the ACTU and Australian unions in 2023–2024 to address some of the challenges they face and to make gains under a sympathetic legislative framework. Specific unions such as the TWU are using these new provisions to make gains on behalf of existing members and to recruit new members in the gig economy. The SJSP provisions have seen certain unions – such as the MEU, the TWU, the AMIEU – test these provisions before the FWC with a view to increasing pay, with wage rises commencing in November 2024. Ongoing industry changes raise challenges for unions. This is exemplified in the period covered by this article with the media, entertainment, and other industries being confronted by an increase in AI usage by employers either to replace workers or to exploit their work to train AI. In response, the ACTU and the MEAA are running campaigns around the use of AI in workplaces and across industries.

A challenge for unions remains that of organising and servicing SMEs, perhaps in a manner similar to that of the the United Kingdom's IPSE and Community, though the TWU and MEAA have already made recruiting and organising inroads in their respective industries. Challenges continue, such as the struggle by the ACTU and Unions NSW on behalf of victims of asbestos sites relating to James Hardie's products from the 1970s which shows that even when union campaigns appear to be won, an employer can change strategies with negative outcomes for workers.

The issue of survival for unions is an imperative that drives amalgamations and dis-amalgamations and it will continue. July 2024 saw an investigation by journalists into the CGD of the Victorian branch of the CFMEU with findings that led to the resignation of a long-serving state secretary, the standing down of other officials in that branch and across the Division, with the allegations spreading to other state branches, and the placement of all state Divisions into forced administration. This is an ‘imbroglio’ that, no matter the outcome for the CGDs around Australia, has brought a negative spotlight onto unions in general at a time when they are making gains for their members and working people in general. Australian unions must overcome the negative publicity generated by the CFMEU and continue to use the favourable legislative framework to entrench gains for workers in the future, as federal governments can change. Conservative media and employer groups will continue to use allegations like those levelled at the CGD and the CFMEU in general to tarnish the labour movement and the ALP. We conclude that unions must continue to advance strategies beyond sole reliance on legislation passed by union-friendly governments and develop new models of campaigning, recruiting, and organising. At the same time, unions must continue to comply with Australian law and with their own democratic principles.