Fair Work (Registered Organisations) Act 2009

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

Applications for certificates under s 177A of the Fair Work Act 2009 (Cth) and ss 323MC and 323MD of the Fair Work (Registered Organisations) Act 2009 (Cth) - Applicant a "removed person" as a result of vacation of his office in the Construction and General Division of the CFMEU - Certificate previously granted under s 323MD of the Fair Work (Registered Organisations) Act 2009 (Cth) - Consideration of applications for certificates to hold office and be a bargaining representative previously deferred - Whether applicant a "fit and proper person" to hold office and be a bargaining representative - Applications granted.

• [1] This decision concerns the applications made by William Kane Lowth for certificates under s 323MC of the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act) and s 177A of the Fair Work Act 2009 (Cth) (the FW Act). Mr Lowth is a former Assistant Secretary of the Queensland and Northern Territory Divisional Branch of the Construction and General Division of the Construction, Forestry and Maritime Employees Union (the CFMEU). On 17 April 2025, I granted Mr Lowth a certificate under s 323MD of the RO Act to be employed or engaged by an organisation.[1] At that time, I deferred consideration of Mr Lowth's applications for certificates under s 323MC(1) of the RO Act and s 177A(7) of the FW Act. Mr Lowth has now asked that I determine those applications.

• [2] Mr Lowth's applications arose from recent amendments to the RO Act and FW Act relating to the administration of the Construction and General Division of the CFMEU. In particular, the amendments resulted in the Division and each of its branches being placed under administration,[2] provided for the creation of a scheme for suspending and removing officers and vacating offices,[3] and prohibiting "removed persons" from holding office, being employed or engaged by an organisation or acting as a bargaining representative unless a certificate was issued by Commission. The Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 resulted, among other things, in the position of "Divisional Branch Assistant Secretary (Plasterers)" then held by Mr Lowth being declared vacant.

• [3] On 11 February 2025, Mr Lowth applied for certificates under ss 323MC and 323MD of the RO Act and s 177A of the FW Act. At the time of my decision to grant Mr Lowth a certificate under s 323MD of the RO Act, I made the following observations in relation to his remaining applications:

[52] I take a different view with respect to Mr Lowth's applications for certificates under s 323MC(1) and s 177A(7). Mr Lowth has no immediate intention of becoming a candidate for election to, or being appointed to, an office in an organisation. It is also not part of the role he proposes to take up with the CEPU that he be a bargaining representative for enterprise agreements. As such, there will be no prejudice to Mr Lowth if determination of those applications for those certificates is deferred. Mr Lowth indicated he wishes to have the three applications determined at one time, including because of the legal costs which have been involved in pursuing the applications. I can understand his position in that respect. However, in light of the existence of the investigation into the Queensland and Northern Territory Branch, the seriousness of the allegations under investigation and the fact that Mr Lowth was a senior official in the Branch, I consider the prudent course is to not consider Mr Lowth's applications for certificates under s 323MC(1) and 177A(7) at this time.

• [4] On 17 June 2025, Geoffrey Watson SC published his report (the Watson Report) titled "Violence in the Queensland CFMEU" which set out his findings in respect of an investigation undertaken into the Queensland Branch of the CFMEU. The Watson Report indicates that it was prepared in two parts, a public report and a private report. The private report was provided only to the CFMEU Administrator. The Commission has access only to the public report.

• [5] On 10 July 2025, my chambers wrote to Mr Lowth to confirm whether he wished to press his remaining applications in light of the publication of the Watson Report. On 11 July 2025, Mr Lowth's solicitor, Tracey Davies, sent an email to my chambers confirming that Mr Lowth wished to have the remaining applications determined. On the same day, Ms Davies provided an email from the CFMEU Administrator's representatives confirming that the Administrator does not oppose the remaining applications made by Mr Lowth. Mr Lowth filed a supplementary outline of submissions in addition to the material filed prior to my first decision in these matters.

• [6] It is useful to set out the relevant provisions in determining the remaining applications, which were also set out in the earlier decision in this matter. Division 2 of Part 2A of the RO Act is entitled "Persons Removed from Office etc. as a result of Scheme of Administration". Section 323MA contains a definition of "removed person" in the following terms:

(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).

• [7] A definition in the same terms is found in s 177A(1) and (2) of the FW Act. Mr Lowth is a "removed person" for the purposes of s 323MA(1)(a)(i) and (ii) of the RO Act and s 177A(1)(a)(i) and (ii) of the FW Act by reason of being removed from office as a result of the scheme determined under s 323B(1).

• [8] Constraints are imposed on certain activities being undertaken by removed persons. Section 323MB of the RO Act provides as follows:

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).

• [9] As will be apparent, s 323MB(2) and (4) contemplate that a removed person may be granted a certificate having the effect of lifting the restrictions on holding office in or being employed or engaged by an organisation which are otherwise imposed by s 323MB(1) and (3).

• [10] The Commission is empowered to grant a removed person those certificates under ss 323MC and 323MD of the RO Act. Section 323MC deals with holding office in an organisation and provides:

(1) The FWC may, on application in writing by a removed person, grant the removed person a certificate to hold office.

(2) The FWC may grant the certificate if satisfied that the removed person is a fit and proper person to hold office in an organisation.

(3) In deciding whether the removed person is a fit and proper person to hold office in an organisation, the FWC must have regard to the following matters:

(a) the reasons the removed person was removed from office, including whether the removed person engaged or allegedly engaged in a kind of conduct described in subparagraph 141(1)(c)(i), (ii) or (iii);

(b) whether the removed person has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving:

(ii) intentional use of violence against another person; or

(iii) intentional damage or destruction of property;

(d) the fitness of the removed person to be involved in the management of organisations.

(4) The FWC may also have regard to any other matters the FWC considers relevant.

(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).

• [11] Section 323MD deals with a removed person being employed or engaged by an organisation and was dealt with in my earlier decision.

• [12] Section 177A of the FW Act falls within Part 2-4 of the FW Act and prevents a removed person being a bargaining representative for a proposed enterprise agreement unless the person is granted a certificate to do so. Section 177A provides:

177A Restrictions on removed persons being bargaining representatives

(a) any of the following events has happened as a result of a scheme determined under subsection 323B(1) of the Registered Organisations Act (a scheme for the administration of the Construction and General Division of the CFMEU and its branches):

(i) the person is removed (however described and including by having their office vacated) or suspended as an officer (within the meaning of this Act), 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, or the person's role as a workplace delegate otherwise comes to an end; and

(b) if the event involved 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) of the Registered Organisations Act, 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).

Removed person must not be bargaining representative without a certificate

(3) A removed person must not do any of the following, whether in their personal capacity or any other capacity:

(a) be a bargaining representative of an employee or employer;

(b) purport to be a bargaining representative of an employee or employer;

(c) hold out that the person is a bargaining representative of an employee or employer.

Note: This subsection is a civil remedy provision (see Part 4 - 1).

(4) Subsection (3) does not apply if the removed person holds a certificate granted under subsection (7).

(5) If, in proceedings for a pecuniary penalty order against a removed person for a contravention of subsection (3), the person wishes to rely on the exception in subsection (4), the person bears an evidential burden in relation to the matter.

(6) Subsection (3) has effect despite subsection 176(1) and section 177. However, subsection (3) does not prevent an employee who will be covered by the agreement concerned from appointing themselves under paragraph 176(1)(c) as their own bargaining representative for the agreement.

(7) The FWC may, on application in writing by a removed person, grant the person a certificate to be a bargaining representative, if satisfied that the person is a fit and proper person to be a bargaining representative.

(8) In deciding whether the removed person is a fit and proper person to be a bargaining representative, the FWC must have regard to the following matters:

(a) the reasons the person became a removed person, including whether the person engaged or allegedly engaged in a kind of conduct described in subparagraph 141(1)(c)(i), (ii) or (iii) of the Registered Organisations Act;

(b) whether the person has ever been convicted of an offence against a law of the Commonwealth, a State, a Territory or a foreign country involving:

(ii) intentional use of violence against another person; or

(iii) intentional damage or destruction of property;

(9) The FWC may also have regard to any other matters the FWC considers relevant.

(a) if the removed person has been disqualified under a scheme determined under subsection 323B(1) of the Registered Organisations Act 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) of the Registered Organisations Act.

(11) Nothing in this section affects the operation of Part VIIC of the Crimes Act 1914 (which includes provisions relieving persons from requirements to disclose spent convictions).

"CFMEU" has the same meaning as in the Registered Organisations Act.

"Construction and General Division" has the same meaning as in the Registered Organisations Act.

• [13] In my earlier decision, I concluded that, on the information then available, I was satisfied Mr Lowth is a fit and proper person to be employed or engaged by an organisation for the purposes of s 323MD(2) of the RO Act. My findings in relation to the evidence that was before the Commission at the time of my earlier decision were as follows:

[45] There is no material before the Commission to suggest that Mr Lowth is not a fit and proper person to be employed or engaged by an organisation. Mr Lowth has been a union official for in excess of 26 years. He has made an affidavit affirming that he has not, in that time, been the subject of any civil penalty orders or any findings of wrongdoing in the performance of his roles as a union official and no other person or organisation has been ordered to pay a pecuniary penalty as a result of his conduct. He has held a right of entry permit for many years and the Commission has repeatedly been satisfied that he is a fit and proper person to hold a permit. Mr Lowth has further affirmed that he has never been convicted of any offence against the law of the Commonwealth, a State or Territory or a foreign country involving fraud or dishonesty, intentional use of violence against another person, or intentional damage to or destruction of property.

[46] Mr Lowth's removal from office, and the termination of his employment with the Construction and General Division, occurred as a result of the making of the Determination in itself. There is no evidence before the Commission that this reflected any finding of wrongdoing specifically relating to Mr Lowth. I also note that the Administrator, the Fair Work Ombudsman and the Minister were all invited to provide any information about Mr Lowth in their possession that might be relevant to the applications made by Mr Lowth. The Administrator, the Ombudsman and the Minister did not provide any material to the Commission or otherwise participate in the proceedings.

• [14] The circumstance that prompted me to defer consideration of Mr Lowth's application for certificates under s 323MC(1) of the RO Act and s 177A(7) of the RO Act was the existence of an ongoing investigation into the Queensland and Northern Territory Branch being conducted by Mr Watson SC.

• [15] Counsel for Mr Lowth submits that the report of Mr Watson is not relevant to the task required to be undertaken by the Commission in determining whether to issue the relevant certificates and is inadmissible and of no probative value. It is submitted that the report is "no more than the author's opinion about whether certain factual events occurred" and is not evidence of those matters. Mr Lowth submits that the report fails to disclose the underlying evidence, is redacted, and that the admission of the report denies him an opportunity to respond to the matters contained therein.

• [16] In my opinion, the submission is unduly simplistic. There are limitations on the extent to which the Watson Report, without more, could provide the basis for making affirmative findings of inappropriate conduct by an individual given its form. However, the matter to be considered under s 323MC(2) of the RO Act and s 177A(7) of the FW Act is whether the Commission is satisfied an applicant is a fit and proper person to, respectively, hold office in an organisation or be a bargaining representative. Sections 323MC(4) and 177A(9) permit the Commission to have regard to "any other matters the FWC considers relevant". A matter could be relevant if it could rationally affect the assessment of whether the person is a fit and proper person to hold office or be a bargaining representative. For a matter to be considered relevant, the Commission must form the view that it relates to those personal characteristics of the official in question which are pertinent to the discharge of the functions and the exercise of the rights and privileges associated with holding office or being a bargaining representative.[4]

• [17] A member of the Commission might consider the conclusions reached as a result of an investigation commissioned by the CFMEU Administrator and conducted by an eminent barrister to be relevant to whether they can be satisfied an applicant is a fit and proper person. The expression "fit and proper person" is intended to give the widest scope for judgment and for rejection.[5] The concept of fitness and propriety should not be narrowly construed or confined.[6] Whether a member of the Commission considers findings made in a report of this nature to be relevant is likely to depend on the nature of the findings or observations, their source or foundation and whether there is any material before the Commission which supports the credibility of the findings. A report of this nature may also prompt the Commission to make further inquiries or require an applicant to answer questions or provide information.

• [18] As such, I consider the Watson Report to be relevant and appropriate to be considered. However, as will become apparent, it provides little assistance in relation to Mr Lowth. Mr Lowth submits that if the Watson Report is admitted, there are three reasons why the report does not weigh against Mr Lowth's fitness and propriety. First, because the matters described in the Watson Report do not relate to Mr Lowth's area of responsibility as he had no responsibility for commercial or civil construction in Southeast Queensland. Second, because there is no evidence that Mr Lowth was aware of any of the incidents set out in the Watson Report. Finally, because the Watson Report sets out that no adverse information in respect of Mr Lowth was received.

• [19] Both s 323MC of the RO Act and s 177A of the FW Act allow the Commission to grant the relevant certificate if satisfied that the person is a fit and proper person to hold office and be a bargaining representative. In my earlier decision, I provided a summary of decisions considering the meaning of the phrase "fit and proper person".[7] The expression should ensure there is a wide scope for judgment and rejection, past conduct as well as character and reputation are likely to be relevant, and the nature of the rights and responsibilities associated with the position should be considered. Whilst the concerns which resulted in the amendments to the RO Act and FW Act are relevant, the determination of whether an applicant is a fit and proper person "is necessarily individual and directed at an assessment of the personal characteristics of the person for whom the certificate is sought".[8]

• [20] Sections 323MC(3) of the RO Act and 177A(8) of the FW Act set out a list of mandatory considerations in deciding whether a removed person is a fit and proper person to hold office and be a bargaining representative. Whilst the words differ slightly, the mandatory considerations for both applications are largely identical.

• [21] The first consideration in ss 323MC(3)(a) of the RO Act and s 177A(8)(a) of the FW Act is the reason for the persons removal from office and whether the removed person engaged in a kind of conduct set out in s 141(1)(c) of the RO Act. The conduct in s 141(1)(c) includes misappropriation of the funds of the organisation, a substantial breach of the rules of the organisation, or gross misbehaviour or gross neglect of duty.[9] Mr Lowth became a removed person by operation of the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 and clause 3(1)(a) of Annexure A to the Determination. That clause declared that Mr Lowth's office was vacant, and he became a "removed person". As set out in my earlier decision, there is no evidence before the Commission which demonstrates that Mr Lowth's removal from office was for any reason other than the making of the Determination.[10]

• [22] The second consideration in ss 323MC(3)(b) of the RO Act and s 177A(8)(b) of the FW Act is whether the applicant has ever been convicted of an offence involving fraud or dishonesty, the intentional use of violence against another person or intentional damage or destruction of property. Mr Lowth's submissions set out that he has never been convicted of an offence of those types and that this should be a matter which "weighs heavily in favour of the application". I accept that this is a matter that weighs in favour of finding that Mr Lowth is a fit and proper person for relevant purposes.

• [23] The third consideration in s 323MC(3)(c) of the RO Act and s 177A(8)(c) of the FW Act is the applicant's general character. Mr Lowth has been a union official for a long period of time, has been granted multiple right of entry permits and has never been the subject of any civil penalty orders nor have pecuniary penalties been imposed on any organisation as a result of his conduct. As Mr Lowth submits, these weigh in favour of finding that the Applicant is a person of good character. There is no other information before the Commission which casts an adverse light on Mr Lowth's character.

• [24] It is appropriate to consider the Watson Report and whether it contains any information which is relevant to whether Mr Lowth is a fit and proper person. The Watson Report contains disturbing accounts of the culture and conduct of officials within the Queensland and Northern Territory Branch of the Construction and General Division, including the attitude to compliance with the law and numerous instances of violence and intimidation. This includes conduct directed at the WHS Inspectorate, officials of the Australian Workers' Union, contractors and employers and instances of hostility towards women. The Watson Report indicates that it is likely that the investigation "only scratched the surface of the violence in the Queensland CFMEU".[11]

• [25] Mr Lowth was elected to the position of Assistant Secretary of the Queensland and Northern Territory Divisional Branch of the CFMEU in 2019 and held that position until he was removed from office on 23 August 2024. The Watson Report concerns the alleged conduct and culture of officials of the Branch in this period and does raise issues as to the responsibility Mr Lowth may have for any of the conduct alleged by Mr Watson. However, the only specific mention of Mr Lowth in the Watson Report is as follows:[12]

Beneath the COM, during the period relevant to the investigation, ... a secretary, Michael Ravbar, and two assistant secretaries, Jade Ingham and Kane Lowth. No adverse information was ever received in respect of Lowth.

• [26] Although the fact that Mr Lowth held a senior position within the Branch during a period in which an array of serious allegations were made in relation to its conduct is a matter of concern, the investigations undertaken by Mr Watson unearthed no adverse information at all in relation to Mr Lowth. I also accept the submission of Mr Lowth that the allegations concerning the Branch do not relate to areas that were within Mr Lowth's responsibility and that there is no evidence before the Commission that Mr Lowth was aware of, or involved in, the matters alleged by Mr Watson. I have considered the Watson Report. I am nonetheless satisfied that Mr Lowth is a fit and proper person to hold office in an organisation and to be a bargaining representative.

• [27] For these reasons, based on the material before the Commission, I am satisfied that Mr Lowth is a fit and proper person to hold office in an organisation for the purposes of s 323MC(2) and am satisfied it is otherwise appropriate to grant Mr Lowth a certificate under s 323MC(1) of the RO Act. I am also satisfied Mr Lowth is a fit and proper person to be a bargaining representative for the purposes of s 177A(7) of the FW Act and that it is otherwise appropriate to grant Mr Lowth a certificate under s 177A(7). The Commission is not prohibited from granting the certificates by s 323MC(5) of the RO Act or s 177A(1) of the FW Act as Mr Lowth is not disqualified under the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 or disqualified from holding office under s 215(1) of the RO Act. Certificates will be issued concurrently with this decision.

C Massy, of counsel, instructed by Davies Lawyers for the applicant.

[1] Applications by William Kane Lowth [2025] FWC 1095.

[2] Fair Work Act 2009 (Cth), s 323A(1).

[3] Fair Work Act 2009 (Cth), s 323B(3)(b) and (c).

[4] Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia, [2015] FWC 1522 at [32]; Application by the Construction, Forestry and Maritime Employees Union for an entry permit for Joshua Thompson and Dylan Howard [2025] FWC 1155 at [17].

[5] Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156-157 (Dixon CJ and McTiernan and Webb JJ); Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2014] FWCFB 5947 at [23].

[6] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348 (Mason CJ).

[7] Applications by William Kane Lowth [2025] FWC 1095 at [35]- [37].

[8] Applications by William Kane Lowth [2025] FWC 1095 at [43].

[9] Fair Work (Registered Organisations) Act 2009 (Cth), ss 141(1)(c)(i)-(iii).

[10] Applications by William Kane Lowth [2025] FWC 1095 at [46].

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