177ARestrictions on removed persons being bargaining representatives

177A  Restrictions on removed persons being bargaining representatives Definition of removed persons  (1) A person is a removed person if:  (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.  (2) A person is also a removed person if:  (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.  (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. Certificate to be a bargaining representative  (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:  (i) fraud or dishonesty; or  (ii) intentional use of violence against another person; or  (iii) intentional damage or destruction of property;  (c) the general character of the person.  (9) The FWC may also have regard to any other matters the FWC considers relevant.  (10) The FWC must not grant the certificate:  (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).  (12) In this section: 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.