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.

Introduction

Nigel Davies has applied for a certificate pursuant to s 323MD(1) of the Fair Work (Registered Organisations) Act 2009 (Cth) (the RO Act) which would, if granted, lift the prohibition imposed by s 323MB(3) on him starting to be employed in, or engaged by, an organisation or a branch, division or part of an organisation.

Mr Davies has been involved in the union movement for many years. He says he is a committed unionist, and there is no reason to doubt that statement. The history of his involvement in the union movement demonstrates its sincerity. Mr Davies has worked in the building and construction industry since he was 16 years of age when he commenced working as a builder’s labourer. He became a delegate of the Construction, Forestry, Mining and Energy Union (as it then was) (the CFMEU) from around 2000 and became an organiser for northwest Victoria in 2013. On 29 September 2017, Mr Davies was elected to the position of Assistant National Secretary of the Construction and General Division of the CFMEU and occupied that position until his retirement in June 2022. After his retirement, Mr Davies continued to be involved in the CFMEU and, during 2024, held the position of “Delegate to Divisional Branch Council (Central Victoria Position 1)”.

The need for Mr Davies to seek a certificate arises from provisions recently included in the RO Act. On 23 August 2024, Part 2A of Chapter 9 of the RO Act commenced operation. Those amendments were made by the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth). Among other things, s 323A(1) provides that the Construction and General Division of the CFMEU, and each of its branches, is placed under administration when a determination of a scheme for the administration is made and an administrator appointed. Section 323B(1) permits the Minister to determine a scheme for the administration if satisfied it is in the public interest for the Division and its branches to be placed under administration. If the Minister determines a scheme,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Application by Nigel Davies

Details

AGLC: Application by Nigel Davies [2025] FWC 1363
Case: [2025] FWC 1363
Decision Date: 15 MAY 2025

CaseChat Overview and Summary

Nigel Davies applied to the Fair Work Commission for a certificate under section 323MD of the Fair Work (Registered Organisations) Act 2009 (Cth). The application sought permission for Davies to be employed or engaged by an organisation. Davies was a "removed person" due to the administration of the Construction and General Division of the CFMEU. The crux of the dispute was whether Davies, who had been asked to come out of retirement to assist the union in its administration, was a "fit and proper person" to be employed or engaged by the organisation. Additionally, the court had to determine if the Commission had residual discretion to refuse the granting of a certificate.

The Fair Work Commission examined whether Davies met the criteria of being a fit and proper person. The Commission found that Davies was indeed suitable for employment or engagement by the organisation. The Commission considered the specific circumstances of Davies's application and concluded that the criteria for being a fit and proper person were satisfied. The court also reviewed whether the Commission retained any discretion to deny the certificate despite the applicant meeting the statutory criteria.

In light of the findings, the Commission granted Davies a certificate to be employed or engaged by the organisation. The Commission was satisfied that Davies fulfilled the requirements and there was no basis to exercise any residual discretion to refuse the application. The decision underscored the Commission's role in ensuring that individuals employed by organisations meet the necessary standards and that its discretion is exercised judiciously.

The Fair Work Commission ordered that a certificate under section 323MD of the Fair Work (Registered Organisations) Act 2009 (Cth) be granted to Nigel Davies, permitting him to be employed or engaged by the organisation. This decision recognised Davies's suitability and the absence of any grounds to withhold the certificate.

Orders