Applications by William Kane Lowth - [2025] FWC 1095

[2025] FWC 1095

FAIR WORK COMMISSION

DECISION

Fair Work (Registered Organisations) Act 2009 (Cth)
Fair Work Act 2009 (Cth)

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 William Kane Lowth

(R2025/15, R2025/16 and R2025/17)

VICE PRESIDENT GIBIAN

SYDNEY, 17 APRIL 2025

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 – Whether applicant a “fit and proper person” to hold office or be employed or engaged in an organisation – Purpose of restrictions on removed persons – Meaning of expression “fit and proper person” – No evidence that applicant not a fit and proper person – Relevance of ongoing investigation into the Queensland and Northern Territory Branch – Certificate to be employed or engaged by an organisation granted – Consideration of applications for certificates to hold office and be a bargaining representative deferred.

Introduction and background

William Kane Lowth was formerly an 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). Mr Lowth has applied to the Fair Work Commission for certificates under ss 323MC and 323MD 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). The certificates for which he has applied would, respectively, permit him to hold office in a registered organisation, be employed or engaged by an organisation and be a bargaining representative for a proposed enterprise agreement.

The need for the applications to be made arises from provisions recently inserted into the RO Act relating to the administration of the Construction and General Division of the CFMEU and its branches. On 23 August 2024, Part 2A 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) of the RO Act provides that the Construction and General Division, 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 include provision for “suspension and removal of officers” and “declarations that offices are vacant”.[1]

Also on 23 August 2024, the Fair…

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.

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Details

AGLC: Applications by William Kane Lowth [2025] FWC 1095
Case: [2025] FWC 1095
Decision Date: 17 APRIL 2025

CaseChat Overview and Summary

William Kane Lowth made applications for certificates under the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009, following his removal from office in the Construction and General Division of the CFMEU. Lowth sought to be recognised as a "fit and proper person" to hold office or be employed or engaged by an organisation, despite being considered a "removed person" due to the vacancy of his office. The court had to determine whether Lowth met the criteria of being a "fit and proper person" and the implications of the term within the legislative framework.

The primary legal issues revolved around interpreting the expression "fit and proper person" and whether Lowth qualified under these terms, given his status as a removed person. The court also needed to consider the purpose of the restrictions placed on removed persons and how these restrictions aligned with the overarching objectives of the Acts. Furthermore, the relevance of an ongoing investigation into the Queensland and Northern Territory Branch of the union was examined in relation to Lowth's applications.

The court found that there was no evidence presented to suggest that Lowth was not a fit and proper person to hold office or be employed or engaged by an organisation. It concluded that the restrictions on removed persons were intended to prevent individuals who had been removed from office due to misconduct or other disqualifying reasons from continuing their roles within the union. The term "fit and proper person" was interpreted to mean an individual who is deemed suitable and trustworthy for their position, based on their conduct and integrity. Given the absence of evidence to the contrary, Lowth was deemed a fit and proper person. Consequently, the court granted Lowth a certificate to be employed or engaged by an organisation but deferred consideration of the applications for certificates to hold office and be a bargaining representative.

The final orders of the court were that Lowth was granted a certificate to be employed or engaged by an organisation under s 177A of the Fair Work Act 2009 and ss 323MC and 323MD of the Fair Work (Registered Organisations) Act 2009. The applications for certificates to hold office and be a bargaining representative were deferred pending further information or developments.

Orders