CFMEU forms legal ‘dream team’ to challenge administration decision in the High Court

Former CFMEU leaders are launching a High Court challenge against the federal government’s legislation that placed the construction division of the union into administration, hiring a crew of star-studded barristers to get the job done.

Previous heads of the Construction, Forestry and Maritime Employees Union (CFMEU) are revolting against the federal government’s legislation that placed the union into administration by launching a High Court challenge to overturn the “unconstitutional” laws.

Led by former national president of the construction arm, Jade Ingham, the CFMEU is directly challenging the exercise of power by Attorney-General Mark Dreyfus, who decided last week (23 August) to place the construction arm of the union into administration on behalf of “public interest”.

“I have determined a written scheme of administration, and the general manager of the Fair Work Commission has appointed Mr Mark Irving KC as the administrator and contacted Mr Irving to notify him of his appointment,” the A-G wrote.

“The scheme of administration of the construction and general division of the CFMEU takes effect immediately.”

The decision was made in accordance with s323B of the Fair Work (Registered Organisations) Act 2009 and was authorised by the Minister for Employment and Workplace Relations.

The decision from Dreyfus and the Albanese government sent shockwaves through CFMEU supporters, who quickly gathered, galvanised, and took to the streets to protest what they deemed as anti-union legislation.

The CFMEU was supported in these protests by fellow unions, the Electrical Trades Union (ETU) and the Maritime Union of Australia (MUA).

Fast-forward to now, and the CFMEU has gone out and hired a collection of prolific barristers to represent it in the High Court, including Bret Walker SC, who has previously represented Google, Elon Musk, and Chinese billionaire Huang Xiangmo, just to name a few.

According to The Age, alongside Walker are Hall Payne Lawyers and counsel Craig Lenehan SC, Naomi Wootton, and Christopher Tran, each decorated in their own right.

As the High Court challenge announcement was made, academics, workplace, and legal experts have been weighing in on whether the “dream team” can actually put together a successful challenge against this legislation.

HR Leader reached out to Dean Cameron, legal practice director at Workforce Advisory Lawyers, about the High Court challenge and how it could play out.

“Yes, they should have a right to present any arguments to the High Court. No, we don’t believe such an argument will work, the members are the union and the union are the members,” said Cameron.

“That is the union remains just under administration members and all. Administration does not impact on the members’ right to join or the members’ right to strike. We have seen members already demonstrate their ability to rally, protest and take protected action in administration in week one.”

It’s a direct rebuttal to Ingham’s claims that the government has “stolen” the union through “unconstitutional” means and, therefore, directly infringed on the democratic rights of union members. This is the basis of the claims against the laws behind the forced administration.

“The High Court may be hard-pressed to identify any restriction on members’ right to organise, stop work, bargain, etc.,” said Cameron.

In a recent episode of The HR Leader Podcast, produced in partnership with global law firm Dentons, we unpacked the CFMEU saga in full and what businesses across the country can and should take away from it.