Fair Work (Registered Organisations) Act 2009

s.323MC RO Act - Application for the FWC to grant a person a certificate to hold office

s.323 MD RO Act - Application for the FWC to grant a certificate to be employed or engaged by an organisation

s.177A FW Act - Application for the FWC to grant a person a certificate to be a bargaining representative

Applications by a removed person for certificates under ss 323MC and 323MD of the RO Act and s 177A of the FW Act - applications granted

[1] This decision concerns applications made by Gerard McQuaid under ss 323MC and 323MD of the Fair Work (Registered Organisations) Act 2009 (RO Act) for a certificate to hold office and for a certificate to be employed or engaged by an organisation registered under the RO Act. In addition, Mr McQuaid has made an application under s 177A(7) of the Fair Work Act 2009 (FW Act) for a certificate to be a bargaining representative for a proposed enterprise agreement.

[2] Mr McQuaid's applications arise in the context of amendments to the RO Act that commenced in August 2024, whereby the Construction and General Division of the Construction Forestry and Maritime Employees Union (CFMEU) was placed in administration, following the determination of a scheme of administration and the appointment of an administrator (see s 323A of the RO Act and the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 (Determination). Pursuant to the Determination, various offices and positions were declared vacant. As a consequence, Mr McQuaid, along with many others, became a 'removed person' (see s 323MA of the RO Act). Mr McQuaid then automatically ceased to be an officeholder in the CFMEU (he had been a divisional delegate). He did not automatically cease to be an employee, but subsequently his employment ended for reason of redundancy.

[3] A removed person cannot become a candidate for or be appointed to an office in an organisation or a branch of an organisation, cannot start to be employed in or engaged by an organisation or a branch, division or part of an organisation, and cannot be a bargaining representative for a proposed enterprise agreement. However, these consequences can be lifted if the Commission issues a certificate under ss 323MC and 323MD of the RO Act and s 177A(7) of the FW Act respectively.

[4] Section 323MC provides that the Commission may grant a removed person a certificate to hold office if it is satisfied that the removed person is 'a fit and proper person to hold office in an organisation' (see s 323MC(2)). In deciding whether the removed person is a fit and proper person, the Commission is required to have regard to the matters in ss 323MC(3)(a) to (d), which in short are as follows: the reasons for the removal; whether the person has ever been convicted of offences involving certain types of conduct; the person's general character; and the fitness of the person to be involved in the management of organisations. The Commission may also have regard to any other matters it considers relevant (s 323MC(4)). The Commission must not grant a certificate if the removed person has been disqualified under an administration scheme if the period of the disqualification has not passed, or if the person is not eligible for office under s 215(1) of the RO Act (s 323MC(5)).

[5] Section 323MD states that the Commission may grant a certificate to be employed or engaged by an organisation if it is satisfied that the removed person is 'a fit and proper person to be employed or engaged by an organisation' (see s 323MD(2)). There are no mandatory considerations of the kind that apply to applications for certificates to hold office. But the prohibition of granting a certificate that is found in s 323MC(5) is substantially replicated in s 323MD(3).

[6] Section 177A(7) provides that the Commission may, on application, grant a person a certificate to be a bargaining representative if it is satisfied that the person is a fit and proper person to be a bargaining representative. Section 177A(8) requires the Commission to have regard to the same matters as those prescribed by ss 323MD(3)(a) to (c). Other relevant matters may also be considered (s 177A(9)). The prohibitions on granting a certificate found in s 323MC(5) also apply (s 177A(10)).

[7] Mr McQuaid filed a witness statement in which he affirmed that to the best of his knowledge, he became a removed person solely by operation of law and that he was not aware of any allegations of wrongdoing against him. Mr McQuaid said that in the 10 years for which he had previously worked for the CFMEU he was not aware of any person having alleged that he had engaged in misconduct, and he had not been part of any proceeding alleging a contravention of the FW Act. Mr McQuaid further stated that he has never been convicted of an offence against a law of the kinds referred to in s 323MC(3)(b); that he was unaware of any reason that the Commission would consider that he was not generally of good character and that he believes he is of good character, and that he is also fit to be involved in the management of organisations; and that the prohibitions in s 323MC(5) were not applicable as he was neither disqualified by the scheme nor ineligible for office under s 215.

[8] In my opinion, each of the mandatory considerations that bear upon the applications under s 323MC and s 177A(8) weigh in favour of the issuing of certificates. As to the question of Mr McQuaid's general character and fitness, Mr McQuaid's statement briefly addressed his professional history and involvement in the union movement. He has a long and unblemished history as a union official. The Commission must be positively satisfied that a person is a fit and proper person in the relevant sense. It is clear to me in this case, and I am satisfied, that Mr McQuaid is a fit and proper person to hold office in an organisation, to be employed or engaged by an organisation, and to be a bargaining representative for a proposed agreement.

[9] Having taken into account the mandatory considerations and other material, I am satisfied, based on the information before the Commission, that Mr McQuaid is a fit and proper person to hold office in a registered organisation for the purposes of s 323MC(2) of the RO Act, to be employed or engaged by an organisation for the purposes of s 323MD(2) of the RO Act, and to be a bargaining representative for a proposed enterprise agreement for the purposes of s 177A(7) of the FW Act. The prohibitions on granting a certificate that are found in ss 323MC(5) and 323MD(3) of the RO Act and s 177A(10) of the FW Act do not apply.

[10] Certificates will be issued concurrently with this decision.

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