Application by Nigel Davies
[2025] FWC 1363
•15 MAY 2025
| [2025] FWC 1363 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work (Registered Organisations) Act 2009
s.323MD RO Act - Application for the FWC to grant a certificate to be employed or engaged by an organisation
Application by Nigel Davies
(R2025/46)
| VICE PRESIDENT GIBIAN | SYDNEY, 15 MAY 2025 |
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, the scheme must provide for “suspension and removal of officers” and “declarations that offices are vacant”.[1]
Also on 23 August 2024, the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024 (the Determination) was made. The Determination is an instrument made under s 323B(1) and determined a scheme for the administration of the Construction and General Division in the form set out in Annexure A to the Determination.[2] Clause 3(1)(a) of Annexure A to the Determination had the effect of declaring vacant the offices listed in Annexure B. Item 119 of Annexure B identified the position of “Delegate to Divisional Branch Council (Central Victoria Position 1)” held by Mr Davies as one of the positions declared vacant. The scheme appointed Mark Irving KC to be the administrator (the Administrator).
As a result of the appointment of the Administrator, Mr Davies is now a “removed person” within the meaning of the RO Act and the Fair Work Act 2009 (Cth) (the FW Act).[3]. A “removed person” is prohibited from becoming a candidate for or being appointed to an office in an organisation or a branch of an organisation, starting to be employed in, or engaged by, an organisation or a branch, division or part of an organisation and being a bargaining representative in relation to a proposed enterprise agreement.[4] Those consequences are lifted if the Commission grants a relevant certificate to the person.[5]
Mr Davies was approached in March of this year by the National Secretary of the CFMEU, Zach Smith, about returning to work for the union. Mr Smith indicated that, in light of the administration, the CFMEU needed the assistance of experienced officials to assist it and its members. Mr Smith explained that he envisaged that Mr Davies could perform a role formulating and rolling out organiser and delegate training and occupational health and safety training across the country as well as being involved in formulating and running campaigns for better terms and conditions of employment for members of the CFMEU and in relation to health and safety matters. Mr Davies cannot take up this role without being issued with a certificate by the Commission under s 323MD(1) of the RO Act.
On 16 April 2025, directions were issued for Mr Davies to file material in support of his application and for the Administrator, the Fair Work Ombudsman and the Minister for Employment and Workplace Relations to indicate whether they wished to be heard in relation to Mr Davies’ application. On 23 April 2025, Mr Davies filed an outline of submissions and a statutory declaration in support of his application. No other person or organisation indicated that they wished to be heard in relation to the application.
For the reasons that follow, I am satisfied that Mr Davies 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. A certificate under s 323MD(1) will be granted to Mr Davies.
The Legislation
Mr Davies has applied for a certificate only under s 323MD(1) of the RO Act. Section 323MD is contained within Division 2 of Part 2A of Chapter 9 of the RO Act which 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:
323MA Application of this Division
(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):
(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.
(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), 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).
Section 323MB of the RO Act limits the capacity of removed persons to hold office or be employed without a certificate being granted:
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
(1) A removed person must not:
(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.Civil penalty: 600 penalty units.
(2) Subsection (1) does not apply if the removed person holds a certificate granted under section 323MC.
Being employed or engaged by organisation
(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.
Civil penalty: 600 penalty units.
(4) Subsection (3) does not apply if the removed person holds a certificate granted under section 323MD.
Evidential burden
(5) A removed person bears an evidential burden in relation to the matters in subsections (2) and (4).
Section 323MD provides that the Commission can grant a removed person a certificate which permits their employment or engagement by an organisation:
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.
(3) The FWC must not grant the certificate:
(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).
As will be apparent, the matter about which the Commission must be satisfied to issue a certificate under s 323MD is that the removed person is a “fit and proper person to be employed or engaged by an organisation” for the purposes of s 323MD(2). Section 323MC(1) of the RO Act and s 177A(7) of the FW Act make provision for the Commission to issue certificates for a removed person to hold office in an organisation and to be a bargaining representative respectively. In case of those certificates, the Commission is required to have regard to the matters specified in s 323MC(3) and 177A(8) in deciding whether the applicant is a fit and proper person to hold office or be a bargaining representative. Section 323MD does not specify any matters to which the Commission must have regard in deciding whether a removed person is a fit and proper person to be employed or engaged by an organisation.
Mr Davies’ evidence
Mr Davies’ witness statement sets out that he has a long history of employment in the construction industry. As I have recorded, Mr Davies has worked in the building and construction industry since he was 16 years of age. He became a delegate of the CFMEU and a health and safety representative at various companies. In November 2013, Mr Davies became an organiser for northwest Victoria prior to his election to the position of Assistant National Secretary of the Construction & General Division in 2017. From 2014 until his retirement in 2022, Mr Davies held a federal right of entry permit as well as a permit under the Occupational Health and Safety Act 2004 (Vic) and permits under State and Territory occupational health and safety laws in Western Australia, South Australia, New South Wales, the Northern Territory and Tasmania.
Mr Davies described his work in the role of Assistant National Secretary as including assisting the Secretary of the Construction and General Division in the governance of the Division, organising campaigns on behalf of the CFMEU, political lobbying, training of organisers and site delegates and day to day management of the national office of the Construction and General Division. He indicates that his role also included responsibility for coordinating the CFMEU’s activities with respect to occupational health and safety, including educating and training delegates and organisers in OHS-related issues and coordinating OHS campaigns.
In 2018, Mr Davies was found to have engaged in six contraventions of ss 497 and 500 of the FW Act relating to his conduct at the Bendigo Theatre site on two occasions being 22 July 2014 and 29 July 2014.[6] Mr Davies was ordered by Justice Tracey to pay pecuniary penalties of a total amount of $19,000 in respect of those contraventions in a judgment handed down on 14 August 2018.[7] The CFMEU was ordered to pay pecuniary penalties totalling $245,000 with respect to the six contraventions by Mr Davies and one contravention by another official.[8]
The fact that Mr Davies was ordered to pay a pecuniary penalty with respect to a contravention of Part 3-4 of the FW Act, required that the Commission revoke or suspend the entry permit held by him unless satisfied that the suspension or revocation would be harsh or unreasonable in the circumstances. In a decision handed down on 27 March 2019, Deputy President Colman found that the suspension or revocation of Mr Davies’ entry permit would be unreasonable.[9] In 2020, Deputy President Colman considered a further application by the CFMEU for a right of entry permit for Mr Davies. The Deputy President was satisfied that Mr Davies was a fit and proper person to hold an entry permit notwithstanding the pecuniary penalties he had been ordered to pay, and an entry permit was issued for Mr Davies.[10]
Consideration
Statutory context
In Application by William Kane Lowth [2025] FWC 1095, which was the first application for a certificate under ss 323MC and 323MD of the RO Act and s 177A of the FW Act to be decided, I described the statutory context in which such an application is required to be considered as follows (references omitted):[11]
[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.
The matter to be considered in deciding whether to grant a certificate under s 323MD(1) is whether, for the purposes of s 323MD(2), the removed person is a fit and proper person to ben employed or engaged by an organisation. In Application by William Kane Lowth [2025] FWC 1095, I said the following in relation to the “fit and proper person” test (again omitting references):
[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.
Mr Davies did not take issue with those observations. However, Mr Davies makes two further submissions in relation to the construction of s 323MD. The first submission is that, despite the use of the word “may” in s 323MD(1), the preferrable construction of the section is that it is a provision which confers a power on the Commission to issue a certificate which must be exercised if an applicant satisfies the Commission that they are a fit and proper person for the purposes of s 323MD(2) (unless either of the proscriptions in s 323MD(3) apply). That is, Mr Davies submits that s 323MD(1) does not confer any residual discretion on the Commission to refuse to grant a certificate but rather confers a power that the Commission is obliged to exercise if the circumstances for its exercise are met.
Where an Act provides that a person, court or body may do a particular act or thing, and the word “may” is used, the act or thing may be done at the discretion of the person, court or body unless contrary intention appears.[12] However, contrary intention may be found where the word “may” is used to confer a power on a court or tribunal to be exercised if particular circumstances or a particular state of affairs is found to exist. It has been said that, where a court or tribunal is conferred with a power to be exercised if particular criteria are met, it will commonly also be the duty of the court or tribunal to do so.[13] In Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1, for example, Gummow, Heydon and Crennan JJ said:[14]
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.’”
The question is ultimately one of statutory construction.[15] That is, whether the intention of s 323MD(1) is to require the Commission to grant a certificate to a removed person if the Commission is satisfied that they are a fit and proper person to be employed in or engaged by an organisation for the purposes of s 323MD(2) or to confer a discretion in the event the Commission is satisfied of that matter. Although this matter involves an application only for a certificate under s 323MD(1), the same question arises with respect to s 323MC(1) and (2).
I was initially attracted to the proposition that the statutory context and purpose of Division 2 of Part 2A of the RO Act is fulfilled so long as the Commission is satisfied that the removed person is a fit and proper person to be employed or engaged by an organisation or to hold office. The restrictions imposed by s 323MB(1) and (3) on a removed person holding office in or starting to be employed in, or engaged by, an organisation represent a substantial interference in the capacity of a removed person to earn a living and pursue their chosen line of work, and on the freedom of association of removed persons and members and officials of other organisations. It might be thought that it is unlikely Parliament intended that the Commission have a discretion to withhold the grant of a certificate even if satisfied that a removed person is a fit and proper person for the purposes of ss 323MC(2) and 323MD(2).
However, in my opinion, the text of the provisions is against the submission advanced by Mr Davies. Section 323MD(1) provides that the Commission “may” grant a certificate to a removed person to be employed or engaged by an organisation. The word “may”, which is prima facie indicative of the conferral of a discretion, is then repeated in s 323MD(2) in setting out the circumstances in which the Commission can grant a certificate. Furthermore, s 323MD(3) then provides that the Commission “must not” grant a certificate in particular circumstances. The prohibition on a certificate being granted in s 323MD(3) must be understood to operate even if the Commission is satisfied that the removed person is a fit and proper person for the purposes of s 323MD(2). As such, the section contemplates that a certificate will not necessarily be granted in all cases in which the fit and proper person test is satisfied. The same structure is found in s 323MC(1), (2) and (5).
A provision using the word “may” to confer a power on a court or tribunal to be exercised if particular circumstances exist will often be construed as requiring that the power be exercised if the specified prequisites are satisfied. However, as I have indicated, it is ultimately a question of statutory construction. Context may be important. A great many provisions of the FW Act and the RO Act expressly provide that the Commission “must” or “must not” make an order, determination or instrument, grant an application or take some other step, if satisfied that specified statutory criteria are met.[16] Other provisions, such as ss 323MC(1) and 323MD(1), provide that the Commission “may” do so in the stipulated circumstances. I am not so bold as to suggest that legislation as lengthy, complex and frequently amended as the FW Act and the RO Act can be construed confident that language has been used consistently throughout.[17] However, the contrast between those sections which require that the Commission “must” take a particular step if certain criteria are met and those which provide that the Commission “may” do so is striking. Combined with the internal structure of ss 323MC and 323MD, that aspect of the statutory context supports the conclusion that ss 323MC(1) and 323MD(1) confer a residual discretion.
Having said that, for the reasons which I have explained, the discretion is likely to be a narrow one. It is difficult to envisage that there will be many circumstances in which the Commission will be persuaded that a certificate should not be granted even if satisfied that the removed person is a fit and proper person to be employed or engaged by, or to hold office in, an organisation. It is not necessary or appropriate, in this matter, to speculate as to whether that might ever be an outcome to such an application. If a residual discretion exists, I would not decline to grant a certificate if I am otherwise satisfied that Mr Davies is a fit and proper person to be employed or engaged by an organisation.
The second submission made by Mr Davies is that the fit and proper person test is focused on an assessment of the present fitness and propriety of the removed person. That is said to be the consequence of the use of the third person present indicative “is” in s 323MD(2). Having regard to the language and purpose of the provision, it is plain that the focus must be on the present fitness and propriety of the removed person. Past misconduct or indiscretions on the part of the removed person may influence whether the Commission can be satisfied they are a fit and proper person. However, the purpose of a certificate is to lift the prohibition on present and future employment. The inquiry must be directed at whether the removed person is a fit and proper person to now and in the future be employed or engaged by an organisation.
Application by Mr Davies
It is necessary to turn and consider the application made by Mr Davies. On the basis of the material that is before the Commission, I am satisfied that Mr Davies is a fit and proper person to be employed or engaged by an organisation for the purposes of s 323MD(2) and that he should be granted a certificate under s 323MD(1). In making that assessment, I have considered Mr Davies’ fitness and propriety in the context of the obligations of employees of organisation, the objects of the RO Act and the concerns which motivated the enactment of Part 2A of Chapter 9 of the RO Act. Although s 323MD does not dictate matters that the Commission is required to take into account in making the assessment, the type of considerations listed in s 323MC(3) are likely to be relevant in many cases and I have considered them in the present matter.
Mr Davies worked in the building and construction industry for approximately 38 years until his retirement in 2022, was a delegate of the CFMEU for 13 years and was a union official for approximately 9 years, including a senior official. He has never been convicted of a criminal offence. With the exception of the incident at the Bendigo Theatre site to which I will return, Mr Davies has not been found to have contravened the FW Act, the RO Act or other industrial legislation. Mr Davies has held entry permits under the FW Act, and health and safety legislation, for many years and has been assessed by the Commission to be a fit and proper person to hold a permit on a number of occasions. Mr Davies is a “removed person” solely as a result of the commencement of the administration and there is no evidence to suggest that the administration was the result of allegations of that related in any direct way to Mr Davies.
Mr Davies gave evidence, which I accept, as to the nature of the work he undertook for the CFMEU as an organiser and as National Assistant Secretary. As an organiser, Mr Davies was involved in representing CFMEU members and workers eligible to join the CFMEU in relation to industrial and health and safety matters. Mr Davies indicated that his work as Assistant National Secretary included particular responsibility for coordinating the CFMEU’s activities with respect to occupational health and safety, including educating and training delegates and organisers, coordinating workplace health and safety campaigns and assisting in investigating suspected health and safety contraventions. That experience, and Mr Davies’ evident commitment to health and safety in the building and construction industry, supports the conclusion that he is a fit and proper person to be employed or engaged by an organisation.
I have previously expressed the view that s 323MD(2) requires the Commission to assess whether a removed person is a fit and proper person to be employed or engaged by an organisation in a general sense and not by reference to any particular job or role.[18] I maintain that view. The present task is not merely to consider whether Mr Davies is a fit and proper person to take up the role offered by Mr Smith. However, it is appropriate to take into account the fact that Mr Davies is willing to come out of retirement to answer the request by Mr Smith to return and assist in establishing organiser and health and safety training for the CFMEU in the circumstances of the administration. That is important work, and it is a credit to Mr Davies that he is willing to assist the CFMEU in that manner. I also take into account that the Administrator, Mr Irving, does not oppose Mr Davies being employed by the CFMEU.
On the material before me, the only aspect of Mr Davies’ past conduct which calls his fitness or propriety into question concerns the findings of the Federal Court in the proceedings concerning the Bendigo Theatre site. In his statutory declaration, Mr Davies stated that he attended the site on 22 July 2014 and 29 July 2014 at the request of an elected health and safety representatives, Kent Williams, who had concerns about incomplete and dangerous scaffolding. Mr Davies says that, when he attended the site, he understood that s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic) did not relate to rights of entry regulated by the FW Act and that he was not required to show the occupier his entry permit on request and refused to do so. Following the Federal Court proceedings, Mr Davies says that he now understands that the effect of the judgment of the Full Court in Australian Building and Construction Commissioner v Powell [2017] FCAFC 89; (2017) 251 FCR 470 is that an official of a federally registered union who seeks to enter a site under s 58(1)(f) of the Victorian legislation must produce their federal entry permit. Mr Davies says he has received training from the CFMEU’s National Legal Officer, Lucy Weber, in relation to the proceedings concerning the Bendigo Theatre site and the Powell decision.
It must be said that Mr Davies’ explanation does not fully describe the findings made by the Federal Court concerning his conduct and that Justice Tracey did not fully accept Mr Davies’ explanation. In Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) [2018] FCA 122, Tracey J described Mr Davies’ conduct as follows:
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.
In the subsequent decision concerning penalty in Australian Building and Construction Commissioner v Construction, Forestry, Mining and Energy Union (Bendigo Theatre Case) (No 2) [2018] FCA 1211, Tracey J concluded with respect to Mr Davies:
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.
As will be apparent, his Honour did not fully accept that Mr Davies’ conduct was explained by a mistaken understanding of the law or that he had provided an adequate explanation for his asserted misapprehension of the law.
Those issues were revisited by Deputy President Colman in Re Davies[2019] FWC 2022 which involved consideration of whether Mr Davies’ entry permit should be suspended or revoked under s 510 of the FW Act. Further evidence was put before the Deputy President as to the basis upon which the CFMEU believed, at the time, that an official exercising right of entry powers under the Occupational Health and Safety Act 2004 (Vic) was not required to show their entry permit on request. Deputy President Colman accepted that Mr Davies was under a reasonable but mistaken belief as to the legal effect of s 58(1)(f) of the Occupational Health and Safety Act 2004 (Vic) and concluded in that respect:
[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.
Deputy President Colman went on to consider other aspects of Mr Davies’ conduct which were not explained by his mistaken belief as to the correct legal position, the degree of his contrition, the passage of time and training he had received. The Deputy President concluded as follows:
[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.
As I have observed, Mr Davies was later granted a new entry permit and the Deputy President was, at that time, again satisfied that Mr Davies was a fit and proper person to hold an entry permit.[19]
Having considered the material before the Commission, I am satisfied that Mr Davies is a fit and proper person to be employed or engaged by an organisation notwithstanding his conduct at the Bendigo Theatre site. In light of the material before the Commission in Re Davies[2019] FWC 2022 and Mr Davies’ statutory declaration in these proceedings, I accept that his refusal to produce his entry permit was based on a reasonable albeit mistaken view of the law. There were other aspects of Mr Davies’ conduct that were regrettable, particularly the use of abusive language. However, those events took place more than 10 years ago. There is no evidence before the Commission of any further incident of a like nature in the period up to Mr Davies’ retirement in 2022. In the context of the other evidence concerning Mr Davies’ history and conduct, those incidents are not sufficient to dissuade me from being satisfied that Mr Davies is a fit and proper person for the purposes of s 323MD(2).
Conclusion and disposition
For these reasons, based on the material presently before the Commission, I am satisfied that Mr Davies is a fit and proper person to be employed or engaged by an organisation for the purposes of s 323MD(2) and that it is otherwise appropriate to grant Mr Davies a certificate under s 323MD(1). The Commission is not prohibited from granting a certificate by s 323MD(3) as Mr Davies is not disqualified under the Determination or disqualified from holding office under s 215(1) of the RO Act.
A certificate will be issued concurrently with this decision.
VICE PRESIDENT
Appearances:
P Boncardo, of counsel, for the applicant.
Hearing details:
16 April 2025.
Sydney (by video using Microsoft Teams).
Final written submissions:
23 April 2025.
[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].
[12] Acts Interpretation Act 1901 (Cth), s 33(2A).
[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) 127 CLR 106 at 134-135 (Windeyer J).
[16] See, for example, Fair Work (Registered Organisations) Act 2009 (Cth), ss 19(1), 20(1), 38(3), 43(4), 55(1), 100(1), 134(1), 151(5) and 158(3) and (4).
[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].
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