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[97]
[2025] FWC 1363
General information, not legal advice.
Fair Work Commission
2025-05-15
Original judgment source is linked above.
s.323MD RO Act - Application for the FWC to grant a certificate to be employed or engaged by an organisation
Application for a certificate under s 323MD of the Fair Work (Registered Organisations) Act 2009 (Cth) to be employed or engaged by an organisation - Applicant a "removed person" as a result of administration of the Construction and General Division of the CFMEU- Whether applicant a "fit and proper person" to hold office or be employed or engaged in an organisation - Whether Commission has residual discretion to refuse to grant a certificate - Applicant asked to come out of retirement to assist union in administration - Commission satisfied that applicant is a fit and proper person to be employed or engaged by an organisation -- Certificate to be employed or engaged by an organisation granted.
(a) any of the following events has happened as a result of a scheme determined under subsection 323B(1):
(i) the person is removed (however described and including by having their office vacated) or suspended as an officer, or the person's role as an officer otherwise comes to an end;
(ii) the person's employment, as a person employed by the CFMEU or any of its branches, divisions or parts working in the Construction and General Division or any of its branches, is terminated or otherwise comes to an end, or is suspended;
(iii) the person is removed (however described) or suspended as a workplace delegate (within the meaning of the Fair Work Act), or the person's role as a workplace delegate otherwise comes to an end; and
(b) if the event involves suspension - the suspension has not ended.
(a) on or after 1 July 2024 and before the Construction and General Division and its branches are placed under administration by force of subsection 323A(1), the person, by the person's own choice:
(i) ceases to be an officer (within the meaning of this Act) of the Construction and General Division or any of its branches; or
(ii) ceases to be a person employed by the CFMEU or any of its branches, divisions or parts working in the Construction and General Division or any of its branches; or
(iii) ceases to be a workplace delegate for members of the Construction and General Division or any of its branches; and
(b) during the period of the administration, the administrator formed the opinion that, if the person had not made the choice, the administrator would have taken action under the scheme of administration to ensure the person ceased to be an officer, employee or workplace delegate (as applicable).
(3) This Division does not limit the operation of Part 4 of Chapter 7 (disqualification from office).
323MB Removed person must not become an officer or employee etc. in organisation without a certificate
Standing for election or being appointed as officer in an organisation
(a) become a candidate for election to an office in an organisation or a branch of an organisation; or
(b) be appointed to an office in an organisation or a branch of an organisation.
(2) Subsection (1) does not apply if the removed person holds a certificate granted under section 323MC.
(3) A removed person must not start to be employed in, or engaged by, an organisation or a branch, division or part of an organisation.
(4) Subsection (3) does not apply if the removed person holds a certificate granted under section 323MD.
(5) A removed person bears an evidential burden in relation to the matters in subsections (2) and (4).
323MD Certificate to be employed or engaged by an organisation
(1) The FWC may, on application in writing by a removed person, grant the removed person a certificate to be employed or engaged by an organisation.
(2) The FWC may grant the certificate if satisfied that the removed person is a fit and proper person to be employed or engaged by an organisation.
(a) if the removed person has been disqualified under a scheme determined under subsection 323B(1) and the period of the disqualification has not ended; or
(b) at any time while the removed person is not eligible to be a candidate for an election, or to be elected or appointed, to an office in an organisation under subsection 215(1).
[31] The restrictions imposed on removed persons by Part 2A of the RO Act, particularly in s 323MB, are substantial. A removed person is prevented from being a candidate for or holding office in any organisation or being employed or engaged by an organisation. Those restrictions have the potential to interfere with the capacity of a removed person to earn a living and pursue their chosen line of work, and to constrain the freedom of association of the removed person and members and officials of other organisations.
[32] Parliament enacted those restrictions as a result of serious concerns which have been identified about the conduct of at least some officials of the Construction and General Division and the culture of the Division more generally. The Revised Explanatory Memorandum to the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) explained:
The restrictions regarding 'removed persons' are necessary to address serious allegations made against elements of the Division, that members and associates of the Division are not respecting Australian laws. These restrictions would ensure that the actions taken by an administrator are effective and durable, and that alleged non-compliance and poor governance within the Division would be properly addressed if it was the Minister's view that it was in the public interest for a scheme of administration to be determined. The restrictions are necessary to the ensure the integrity of the bargaining process and the role of organisations under the Fair Work framework more broadly, whether within the Division or elsewhere. They would ensure that, in these circumstances, an administrator could quickly address issues contributing to a culture of alleged non-compliance within the Division and would ensure it cannot be transferred elsewhere (for example, by 'removed persons' simply moving to another registered organisation). The measure is proportionate, because it would be time-limited, and would enable removed persons to apply (to an impartial umpire, the Commission) for an exemption on grounds they are fit and proper.
[33] As the Revised Explanatory Memorandum recognises, the operation of the prohibitions in s 323MB and s 177A are subject to an exemption if a removed person applies to the Commission for a certificate on grounds that they are a fit and proper person.
[34] The statutory scheme implicitly acknowledges that the fact a person satisfies the definition of being a "removed person" does not necessarily mean it is not appropriate for them to hold office in or be employed or engaged by an organisation or be a bargaining representative. That is a natural consequence of the provisions which have been enacted. A person might have been removed from office or had their employment terminated simply as a result of the administration. The establishment of the administration does not necessarily entail that an adverse finding has been made about the character or conduct of each individual official, or that each individual has contributed to the state of affairs that the Minister assessed justified the Division, and its branches, being placed into administration.
[35] The requirement about which the Commission must be satisfied under ss 323MC(2) and 323MD(2) and s 177A(7) before the relevant certificate can be granted is that the applicant is a "fit and proper person" to hold office in an organisation, to be employed or engaged by an organisation respectively or to be a bargaining representative. The description "fit and proper person" in the relevant provisions is not defined and has no precise meaning. Some guidance is provided by the judgments in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321. Toohey and Gaudron JJ, for example, said:
The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.
[36] The expression "fit and proper person" is generally used as a measure of the suitability of a person to perform or carry out a particular function, to be appointed to a particular position or to be given a particular right or privilege. The expression is intended to give the widest scope for judgment and for rejection. The concept of fitness and propriety should not be narrowly construed or confined.
[37] Evidence as to the past conduct, general character and reputation of the individual concerned is likely to be relevant to the assessment of whether they are a "fit and proper person". In another context, the Supreme Court of South Australia said in Teachers Registration Board of South Australia v Edwards (2013) 117 SASR 246:
[103] The cases show in my view that although the expression "fit and proper person" takes its meaning from the content of the legislation, there are nevertheless certain consistent notions which emerge in the relevant decisions.
[104] These are that a consideration of whether a person is fit and proper looks to the suitability and eligibility to hold a position. The suitability in turn is viewed against a consideration of the person's previous conduct and their general reputation.
[38] The nature of the rights and responsibilities associated with the position or authority for which permission is being considered is significant. In the context of s 512 of the FW Act, for example, it has been said that the question of whether a person is a fit and proper person to hold an entry permit necessarily requires a consideration of the rights which may be exercised by the holder of such a permit, the limitations on the exercise of those rights and the responsibilities to be discharged in the exercise of those rights.
[39] The statutory context, and the objects of the RO Act and FW Act, provide important context to inform the assessment. The intention of Parliament in enacting the RO Act was to "enhance relations within workplaces between federal system employers and federal system employees and to reduce the adverse effects of industrial disputation" by requiring associations of employers and employees to meet the standards set out in the RO Act. The standards for which the RO Act provides include ensuring that organisations are representative of and accountable to members, encouraging efficient management and high standards of accountability and providing for the democratic functioning and control of organisations.
[40] The passage from the Revised Explanatory Memorandum to the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) set out above discloses a particular concern that a culture of non-compliance and poor governance alleged to have existed in the Construction and General Division is not "transferred elsewhere". That suggests that the likelihood of compliance with the obligations of officials of an organisation, and the standards of conduct expected of them, will be important. The obligations imposed on officials by the RO Act include that officers exercise their powers and functions with care and diligence, in good faith and for a proper purpose and not improperly gain an advantage for themselves or someone else or cause detriment to the organisation.
It is true that s 19(5) says that the Court "may refuse to fix a non-parole period" if satisfied of the matters set out in the provision. But it by no means follows that, if the Court is satisfied of those matters, it then has to exercise a discretion. Rather, s 19(5) is a provision of the kind considered in Finance Facilities Pty Ltd v Federal Commissioner of Taxation and Mitchell v The Queen. The word "may" is used, not to give a discretion, but to confer a power which is to be exercised upon the Court being satisfied of the matters described in the provision. As Windeyer J said in Finance Facilities:
"This does not depend on the abstract meaning of the word 'may' but [on] whether the particular context of words and circumstance make it not only an empowering word but indicate circumstances in which the power is to be exercised - so that in those events the 'may' becomes a 'must'. Illustrative cases go back to 1693: R v Barlow. Today it is enough to cite Julius v Bishop of Oxford; and add in this Court Ward v Williams. But I select one other reference out of a multitude: Macdougall v Paterson. There Jervis CJ said in the course of the argument 'The word "may" is merely used to confer the authority: and the authority must be exercised, if the circumstances are such as to call for its exercise'. And, giving judgment, he said: 'We are of opinion that the word "may" is not used to give a discretion, but to confer a power upon the court and judges; and that the exercise of such power depends, not upon the discretion of the court or judge, but upon the proof of the particular case out of which such power arises.'"
144. It was not in dispute that Mr Davies entered the site on 22 July 2014 at the invitation of Mr Williams and for the purpose of assisting Mr Williams in dealing with perceived occupational health and safety issues under ss 58(1)(f) and 70(1) of the OHS Act. Mr Davies did not provide CCS with any prior notice of his intention to enter the site. He did not enter the site office. He did not sign the visitors' book. When requested, at least twice, by Mr Ireland to produce his entry permit he refused to do so and told Mr Ireland to "fuck off". He failed to comply with a direction from Mr Ireland that he leave the site. When Mr Ireland continued to observe Mr Davies and issued a second direction that he leave the site, Mr Davies said, dismissively, "Why are you following me? Just go away".
145. I am also satisfied that Mr Davies placed his mobile phone close to Mr Davies' face when Mr Davies was stepping down from the scaffolding access step. I do not accept Mr Davies' explanation that he was simply recording the height of the step; he could have taken the photograph easily before or after Mr Ireland came to be standing on the step.
These events on 22 July 2014, both individually and collectively, constituted conduct which fell below the standard which reasonably could be expected of a permit holder. Mr Davies effectively asserted an entitlement to unrestricted access to the site without regard to the statutory obligations which attach to such an entry. He had determined that he would not acknowledge any attempt by site management to exercise some lawful control over his movements. He had determined that he would not comply with any request by site management to produce his entry permit. He persisted in that refusal despite multiple requests to him to produce the permit. He could easily have done so. He had the permit in his possession and later showed it to police officers. In rejecting attempts to have him produce the permit he directed foul and dismissive language to Mr Ireland. He did not comply with Mr Ireland's directions to leave the site. He offered no viable explanation to Mr Ireland for his refusal to comply with Mr Ireland's requests.
146. In my view such conduct was "improper" within the meaning of s 500 and Mr Davies thereby contravened that section on 22 July 2014.
147. Mr Davies attended the site again on 29 July 2014. He did so in the company of Mr Tadic. They attended in response to another request from Mr Williams for assistance in relation to a health and safety issue under ss 58(1)(f) and 70(1) of the OHS Act. Mr Davies had not given any prior notice of his intention to attend on that day. They both signed the visitors' register. Mr Davies refused a request from Mr Ireland to produce his permit although he had it with him. He failed to comply with at least one direction from Mr Ireland that he should leave the site. He proceeded to accompany Mr Tadic on an inspection of parts of the site.
46. On both 22 and 29 July 2014 Mr Davies entered the site at the invitation of the designated health and safety representative. The request for assistance had been made under the Occupational Health and Safety Act 2004 (Vic) ("the Victorian Act"). Mr Davies, as an official of the CFMEU, held entry permits under both the Victorian Act and the FW Act.
47. He proffered various explanations for his failure to produce his FW Act entry permit upon request. He said that he believed that, because he had attended the site, following a request made under s 58 of the Victorian Act, he was not required to produce his Federal permit. No basis for this belief was established. At another point he said that he had not produced his permit because he was on the site for a quick visit and he "thought it would be more than appropriate just to see the problem at hand and just go about business." I do not find these explanations persuasive. Mr Davies had his permit with him and could have easily have produced it upon request. He was determined not to comply with those requests. On one of these occasions he told the requesting manager to "fuck off". On another he told the manager to "go away". He was defiant and dismissive in the face of lawful directions that he leave the site.
48. In July 2014 Mr Davies had not previously contravened provisions of the FW Act, its predecessors or other application industrial legislation.
49. In the absence of any contrition or the provision of any assurances relating to his future conduct, there are no other mitigatory factors which should be brought to account in his favour.
[32] In my assessment, the evidence before the Commission establishes that Mr Davies had a genuine but mistaken belief about the legal effect of s 58(1)(f) when he entered the Bendigo site on 22 and 29 July 2014. That the belief was erroneous only became evident when the decision of the Full Court in Powell No 2 was handed down nearly three years later. Mr Davies' belief was reasonable in the circumstances. It was consistent with his union's understanding of the legal position at the time. It was a belief shared by the Victorian Workcover Authority. The legal argument on which the belief was founded was not without merit. It was accepted by a judge of the Federal Court in the decision of Powell No 1. And when the ABCC appealed that decision, the Victorian Workcover Authority intervened in the proceeding to support the position of the union, contending that the decision of the primary judge was correct.
[54] Based on the evidence before the Commission, I conclude that Mr Davies did not believe that he was legally required to show his entry permit to the occupier of the site in connection with his entries to the Bendigo theatre premises on 22 and 29 July 2014. His understanding of the legal position was reasonable, and only later revealed by a decision of the Full Federal Court to be wrong. His was not a case of a wilful or reckless contravention of the Act. His attitude on site was confrontational, and he should not have used bad language, or placed his telephone close to the project manager's face. But he was responding to a request for assistance from a health and safety representative about a genuine safety issue and believed that he was not exercising entry rights under the Act, and therefore did not need to show his permit.
[1] Fair Work (Registered Organisations) Act 2009 (Cth), s 323B(3)(b) and (c).
[2] Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024, clause 4.
[3] Fair Work (Registered Organisations) Act 2009 (Cth), ss 6 and 323MA; Fair Work Act 2009 (Cth), ss 12 and 177A(1) and (2).
[4] Fair Work (Registered Organisations) Act 2009 (Cth), s 323MB(1) and (3); Fair Work Act 2009 (Cth), s 177A(3).
[5] Fair Work (Registered Organisations) Act 2009 (Cth), s 323MB(2) and (4); Fair Work Act 2009 (Cth), s 177A(4).
[6] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122.
[7] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [50]- [54].
[8] Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 1211 at [77].
[9] Mr Nigel Davies [2019] FWC 2022 at [55].
[10] Application for a right of entry permit for Mr Nigel Davies [2020] FWC 1576 at [12].
[11] Application by William Kane Lowth [2025] FWC 1095 at [31]- [34].
[13] See, for example, Ward v Williams [1955] HCA 4; (1955) 92 CLR 496 at 505-506; Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [38] (Gummow, Heydon and Crennan JJ); John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 at [28] (Gummow and Hayne JJ).
[14] Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1 at [38] (Gummow, Heydon and Crennan JJ).
[15] Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106 at 134-135 (Windeyer J).
[17] Desai v Minister for Immigration and Multicultural Affairs [2002] FCA 320; (2002) 117 FCR 269 at [27]-[31] (Drummond J).
[18] Application by William Kane Lowth [2025] FWC 1095 at [44].
[19] Application for a right of entry permit for Mr Nigel Davies [2020] FWC 1576 at [12].
Printed by authority of the Commonwealth Government Printer
(1990) 170 CLR 321
(2013) 117 SASR 246
(2007) 230 CLR 1
(2017) 251 FCR 470
(1955) 92 CLR 496
(1971) 127 CLR 106
(2007) 230 CLR 291
(2002) 117 FCR 269