particularly with respect to the ‘right to silence’(or to resist interrogation). Far removed from the
investigation of union corruption and maﬁa-style scandals, compulsory interrogation of trade union
ofﬁcials is permittedand frequently occurs in relationto routine industrial matters suchas unprotected
and ‘coercion’(the extent of union pressure applied most commonly to employers
Indeed, it is difﬁcult to contemplate why union ofﬁcials would undertake such
acts were itnot to improve the livelihood andconditions of union members.Meanwhile, courts extend
the same form of compulsory interrogation to company directors, most commonly accused of
dishonesty offences —deceiving stakeholders such as the general public, consumers, business
partners, creditors and workers by misappropriating corporate funds to their own ends.
This article takes issue with the procedural legal treatment of corporations and trade unions as
‘equals’. Indeed, just as different as the offences of which union ofﬁcials and company directors are
accused, are the fundamentally different social roles performed by trade unions and corporations —
large, publicly listed corporations, in particular. Where corporations exist to privately accumulate
socially produced wealth,
trade unions exist to ensure the fair treatment of the society that produces
it. Accordingly, it is the central platform of this paper that their formal equalitarian treatment by
Australian procedural law produces unequal results.
Formally treating trade unions, corporations, their ofﬁcers and ofﬁcials as equals is a problem
that can be analysed on many socio-legal levels in Australia. For instance, industrial law may be
conceived of as operating across three key dimensions of Australian socio-legal power involving:
ﬁrst, the type of industrial capitalism or constitutional legal game being played; second, the rules of
the game or legislative and rule-making capacities of the state, primarily within its parliaments and
courts; and third, the moves within the game which take place at both court and tribunal levels.
Consideration of the type of game being played raises constitutional legal issues which are ulti-
mately beyond the scope of this article. Accordingly, this article explores the problem of equal
treatment of trade unions and corporations within second and third dimensions of Australian legal
power: the rules of the game; and moves within it. It is within the rules of the game, since the mid-
2000s, that consecutive legislatures have equated trade unions with corporations in a raft of
legislation concerning trade union elections, auditing, duties of ofﬁcials and general trade union
governance. These issues have been well-traversed by academic literature since the 1980s and are
only broadly touched upon here.
The moves in the game, on the other hand, take place at a base or
3. See, eg, Australian Building and Construction Commission v Construction Forestry Mining Maritime and Energy Union
 FCA 998 (‘ABCC v CFMMEU’);Directorof the FairWorkBuilding Industry Inspectorate v Construction Forestry
Mining Maritime and Energy Union  FCA 652 (‘DFWBII v CFMMEU’).
4. See, eg, Construction Forestry Mining Maritime and Energy Union v Australian Building and Construction Commission
(2018) 259 FCR 20.
5. Harry Glasbeek, Capitalism: A Crime Story (Between the Lines, 2018) 4.
6. The ‘rules of the game’analogy is derived from Robert Alford and Roger Friedland, The Powers of Theory: Capitalism,
State and Democracy (Cambridge University Press, 1985) 6-11.
7. See, eg, Michael Christie, ‘Legal Duties and Liabilities of Federal Union Ofﬁcials’(1986) 15(4) Melbourne University
Law Review 591; Anthony Forsyth, ‘Trade Union Regulation and the Accountability of Union Ofﬁce-Holders: Examining
the Corporate Model’(2000) 13(1) Australian Journal of Labour Law 1, 11-12 (‘Trade Union Regulation’); Joel Silver,
‘For the Union Makes Us …Rich?: Preventing Trade Union Corruption in Law After The Health Services Union Saga’
(2013) 18(1) Deakin Law Review 127; Ian Ramsay and Miranda Webster, ‘The Origins and Evolution of the Statutory
Duties of Trade Union Ofﬁcers’(2019) 47(1) Australian Business Law Review 23.