Applications by William Kane Lowth
[2025] FWC 1095
•17 APRIL 2025
| [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 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 221 of Annexure B identified the position of “Divisional Branch Assistant Secretary (Plasterers)” then held by Mr Lowth as one of the positions declared vacant. The scheme appointed Mark Irving KC to be the administrator (the Administrator).
Later on 23 August 2024, the Administrator gave notice to Mr Lowth and other officials of the Construction and General Division that included the following:
Vacation of office
5. Upon the appointment of an administrator, offices set out in Annexure B to the Determination are declared to be vacant (under clause 3(1)(a) of the scheme of administration).
6. Your office has been declared to be vacant upon the appointment of the Administrator. This means that you no longer have any power or authority under the Rules, and you do not hold your office in the union anymore.
Termination of employment
7. Your employment is terminated with immediate effect from 23 August 2024. Your employment terminated by operation of the scheme of administration. Your lawful employee entitlements will be calculated and paid to you as soon as is practicable.
One consequence of these events is that Mr Lowth is now a “removed person” within the meaning of the FW Act and the RO Act.[3] As will be explained, 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 Lowth now wishes to take up alternative employment within the trade union movement. He has been offered part time employment within the Electrical Trades Union Division of the Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allies Services Union of Australia (the CEPU). However, the offer of employment is conditional on Mr Lowth obtaining a certificate from the Commission that he is a fit and proper person to be employed or engaged by an organisation.
On 11 February 2025, Mr Lowth applied to the Commission for a certificate to hold office in an organisation under s 323MC(1) of the RO Act, to be employed or engaged in an organisation under s 323MD(1) of the RO Act and to be a bargaining representative under s 177A(7) of the FW Act.
Procedural history
Mr Lowth’s applications were allocated to me as the National Practice Leader for Registered Organisations on 18 February 2025. On the same day, my chambers wrote to the solicitor for Mr Lowth advising that a case management hearing would be held on 24 February 2025 and that a copy of Mr Lowth’s application would be sent to the Administrator of the Construction and General Division, the Fair Work Ombudsman and the Minister for Employment and Workplace Relations.
On 24 February 2025, solicitors for the Administrator confirmed that he wished to be heard in relation to the application and attended the case management hearing held that day. Following the case management hearing, the following directions were made:
[1] The Applicant is to file with the Commission, and serve on the CFMEU Administrator,
any material he wishes to rely upon in support of the application, including (to the extent
relevant) evidence by way of an affidavit or statutory declaration in relation to the matters
required to be considered by the Commission under s 177A of the Fair Work Act 2009 (Cth)
and ss 323MC and 323MD of the Fair Work (Registered Organisations) Act 2009 (Cth) by
4:00pm (AEDT) on Wednesday, 5 March 2025.[2] The CFMEU Administrator is to indicate its position in relation to his intended
participation in the proceedings and his position in relation to whether certificates should be
granted to the Applicant by communication to the chambers of Vice President Gibian (copied
to the Applicant’s representatives) by 4:00pm (AEDT) Tuesday, 11 March 2025.[3] The application is set down for a report back before Vice President Gibian at 9:00am
(AEDT) on Thursday, 13 March 2025.
An affidavit of Mr Lowth was filed in accordance with direction 1. In accordance with direction 2, the solicitors for the Administrator wrote an email to my chambers which read as follows:
We refer to the directions of Vice President Gibian dated 24 February 2025 in proceedings R2025/15, R2025/16 and R2025/17.
We are instructed that the administrator does not support Mr Lowth’s application and wishes to be heard in respect of it.
On 13 March 2025 and shortly prior to the report-back, the solicitors for the Administrator filed a document setting out the terms of reference of an inquiry that had commenced concerning the Queensland and Northern Territory Branch of the Construction and General Division and the Supplementary Explanatory Memoranda to the Fair Work (Registered Organisations) Amendment (Administration) Bill 2024. The terms of reference document records a request to Geoffrey Watson SC to investigate the branch and to inquire into the following matters:
1. Credible allegations of violence, threats of violence and menacing conduct from the period 2020 to date, including allegations of such conduct by or against employees and former officers of the union.
2. The culture and actions embraced by the former leadership that tolerated, accepted, promoted and failed to confront a culture of violence and menacing conduct in the union and the industry as a way of doing business.
3. The culture of the union that lead to threats against other unions and unionists, disrespect and threats against regulators, and isolation from the broader union movement.
4. Identify the consequences of the union’s culture and attitude to the broader democratic principles of unionism and provide case studies about those consequences.
Following the report-back, further directions were made for the Administrator and Mr Lowth to file any submissions, witness statements or other evidentiary material that each party intended to rely upon. The matter was set down for hearing on 15 April 2025.
On 19 March 2025, the solicitors for the Administrator wrote to my chambers in the following terms:
We refer to the directions in proceedings R2025/15, R2025/16 and R2025/17.
The administrator has considered his position and has decided not to lodge evidence, or make submissions, in these proceedings whilst an investigation is on foot.
Accordingly, the administrator no longer wishes to be heard in respect of the application.
Following this indication, Mr Lowth’s solicitor wrote to chambers asking for a variation of the directions, since only Mr Lowth would be involved. Ms Davies explained that given the applications would impact Mr Lowth’s ability to accept an offer of employment, it was requested that more expedited directions be issued and a hearing be held. I acceded to this request and a hearing was conducted on 1 April 2025.
For the reasons that follow, I have decided to issue Mr Lowth a certificate to be employed or engaged by an organisation under s 323MD(1) of the RO Act. In the circumstances, I will defer consideration of his applications for certificates under s 323MC(1) of the RO Act and s 177A(7) of the FW Act.
The Legislation
Mr Lowth’s applications for certificates under ss 323MC and 323MD of the RO Act and s 177A of the FW Act are the first of their kind to be determined. As such, it is necessary to set out the relevant provisions.
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:
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).
A definition in the same terms is found in s 177A(1) and (2) of the FW Act. There is no dispute that 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.
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
(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).
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).
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:
323MC Certificate to hold office
(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:(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 removed person;
(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.
(5) 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).
Section 323MD deals with a removed person being employed or engaged by an organisation and provides:
(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).
Part 2-4 of the FW Act deals with enterprise agreements and contains various provisions dealing with bargaining and representation with respect to bargaining. Significant to those provisions is the role of a “bargaining representative” for a proposed enterprise agreement. An employer and employee can appoint any person as their bargaining representative.[6] An employee organisation will be the bargaining representative for its members unless an employee appoints another representative and an official of an organisation can be a bargaining representative so long as the organisation is entitled to represent the industrial interest of the employee concerned.[7]
Section 177A of the FW Act now 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
(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.
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.
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.
Mr Lowth’s evidence
Mr Lowth filed an affidavit in support of his application affirmed on 6 March 2025. Mr Lowth indicates that he has been an officer or employee of various unions for in excess of 26 years. He was elected as a delegate of the Australian Manufacturing Workers’ Union in 1998 and subsequently was employed as an organiser for that union from 2003 until 2011. Mr Lowth commenced employment with the Queensland and Northern Territory Branch of the Construction and General Division in March 2012 as an organiser, was promoted to being Regional Coordinator based in Darwin in 2017 and was elected to the position of Assistant Secretary in 2019. He has also been a member of the boards of QLeave and Skylight (Financial Advice) and the Construction Income Protection Queensland Board.
As Assistant Secretary of the Queensland and Northern Territory Divisional Branch of the Construction and General Division, Mr Lowth says that he was responsible for members of the branch involved in the local government sector, offsite manufacturing workshops, regional Queensland and the building and construction and mining sectors in the Northern Territory. Mr Lowth supervised coordinators and organisers responsible for those areas. He also had oversight of the internal legal team. Mr Lowth states that he had no responsibility for commercial or civil construction in Southeast Queensland.
Mr Lowth states that he has never been found to have contravened a civil penalty provision of the FW Act, the RO Act, the Industrial Relations Act 2016 (Qld) or any predecessor or equivalent legislation and that no person has been required to pay a pecuniary penalty on account of his conduct. He states that he has never been convicted of an offence against a 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 or destruction or property. Mr Lowth states he has not engaged in, and it has not been alleged he has engaged in, the kind of conduct described in s 141(1)(c)(i)-(iii) of the RO Act. Mr Lowth also highlights that he has held a right of entry permit since 2003.
In relation to the allegations which have been raised concerning the operations of the Queensland and Northern Territory Branch, Mr Lowth says:
Prior to the CFMEU being placed into administration, various allegations were made in the media about alleged conduct by certain CFMEU officers and the union more generally. So far as I am aware, none of those allegations related to me or my conduct as Assistant Secretary of the QNTDB. I am not aware of any present allegations about my conduct or investigations into my conduct.
Mr Lowth indicates that, since being removed from his position in the CFMEU, he has been performing casual construction work in Brisbane and working a variable number of hours. He says that, in January 2025, he made inquiries with Peter Ong, the Divisional Branch Secretary of the Queensland and Northern Territory Branch of the Electrical Trades Union Division of the CEPU about the availability of work. Mr Ong told Mr Lowth that there was a part-time position available which would involve dealing with matters he was familiar with, including wage complaints, disciplinary matters and award and enterprise agreement interpretation. Mr Lowth was told that employment would be strictly dependent on obtaining a certificate that would permit him to undertake the role.
Mr Lowth more recently confirmed that the offer from the CEPU is still open. He says that he wishes to take up the offer as quickly as he can as he is presently obtaining limited income from his casual work and wishes to perform work commensurate with his skills and experience.
Consideration
Statutory context
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.
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:[8]
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.
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.
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 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:[9]
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.
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.[10] The concept of fitness and propriety should not be narrowly construed or confined.[11]
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:[12]
[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.
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.[13]
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.[14] 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.[15]
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”.[16] 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.[17]
The RO Act and the FW Act provide for three distinct certificates that may be granted to permit a removed person to hold office in an organisation, to be employed or engaged by an organisation and to be a bargaining representative. Although there is overlap between the matters that will be relevant in each case, it is necessary to consider the distinct rights and responsibilities involved in each position or role. Arguably at least, a person who holds elected office in an organisation is likely to have a greater capacity to influence the conduct and culture of an organisation than a person engaged as an employee or contractor. That may be relevant to whether the Commission can be satisfied a particular individual is a fit and proper person to hold office in an organisation as opposed to only being an employee.
In the case of a certificate to hold office, s 323MC(3) requires the Commission have regard to a number of specific matters being the reasons the person was removed from office, whether the person has been convicted of certain offences, the general character of the person and the fitness of the person to be involved in the management of organisations. A similar set of considerations must be taken into account in case of a certificate to a bargaining representative.[18] In case of a certificate to be employed or engaged by an organisation, s 323MD does not specify any particular matters that must be taken into account. That presumably reflects an acknowledgment that particular matters must be relevant to holding office or being a bargaining representative. That is not to suggest that the matters referred to in s 323MC(3) will not often also be relevant to whether an applicant is a fit and proper person to be employed or engaged in an organisation for the purposes of s 323MD(2).
Finally, the concern which prompted the relevant amendments and the making of the Determination placing the Construction and General Division into administration related to the alleged culture and activities of the Division and at least some of its branches. That background, and any role an individual might have played in that culture or those activities, no doubt must be considered. However, 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.[19] That reading is fortified by the mandatory considerations set out in s 323MC(3) and 177A(8) each of which are directed at the conduct, character or fitness of the removed person.
Applications by Mr Lowth
It is then necessary to turn and consider the applications made by Mr Lowth. The circumstance that has prompted Mr Lowth’s application is that he is seeking to take up employment with the CEPU as soon as possible. In that situation, it is appropriate to first address his application for a certificate under s 323MD(1) and whether I am satisfied that Mr Lowth is a fit and proper person for that purpose. Although Mr Lowth has provided a description of the role he is seeking to take up with the CEPU, I consider s 323MD(2) requires the Commission to consider whether he is a fit and proper person to be employed or engaged by an organisation in a general sense rather than only to take up that particular role.
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.
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.
The only matter that has given me pause as to whether I can be satisfied that Mr Lowth is a fit and proper person to be employed or engaged by an organisation is that the Commission was provided with the terms of reference of the investigation currently being conducted concerning the Queensland and Northern Territory Branch. The terms of reference suggest that the Administrator believes there are credible allegations of violence, threats of violence and menacing conduct relating to the Branch and that the culture and actions of the former leadership of the Branch might have tolerated, accepted, promoted or failed to confront such conduct. Mr Lowth held a senior position in the Branch from 2019 to 2024. I consider that the existence of the investigation is a matter that must be considered.
However, in light of the material before the Commission, the mere existence of the investigation is not sufficient to persuade me that I cannot be satisfied Mr Lowth is a fit and proper person to be employed or engaged by an organisation. There is no information before the Commission as to what caused the Administrator to instigate the investigation into the Queensland and Northern Territory Branch or that any information available to the Administrator suggests wrongdoing on the part of Mr Lowth or involvement by Mr Lowth in the culture or conduct alleged to have been present in the Branch. The Administrator has chosen not to put any material before the Commission other than the terms of reference for the investigation.
It is also relevant to observe that granting Mr Lowth a certificate under s 323MD(1) only permits him to be employed or engaged by an organisation and not to hold elected office or act as a bargaining representative. If Mr Lowth takes up the position he has been offered with the CEPU, he will be subject to the direction and control of the senior officials of that union, and could be disciplined or dismissed, in the same manner as any employee. The same situation will exist in the event that Mr Lowth becomes employed by any other organisation if he is granted a certificate. A separate decision would need to be made as to whether he should be issued with a right of entry permit if he were to apply for one.
I have carefully considered whether to delay determination of Mr Lowth’s application for a certificate under s 323MD(1) until the completion of the investigation into the Queensland and Northern Territory Branch. I have taken into account that, if the investigation does result in findings which reflect adversely on Mr Lowth, it may be possible to revoke a certificate granted to him. There does not appear to be any reason that the power of the Commission to vary and revoke a decision under s 603(1) of the FW Act, when read with s 598(2), would not permit the Commission to revoke a certificate issued under s 323MD(1). However, there is some doubt as to the effect of doing so. The prohibition imposed by s 323MB(3) is that a removed person must not “start to be” employed in, or engaged by, an organisation. It is unclear whether s 323MB(3) prevents continuation of employment. In the absence of full argument, however, it is not appropriate to express a view in relation to that question.
In the circumstances and given the absence of any material suggesting that the investigation is directed at the conduct of Mr Lowth himself, I do not consider it to be appropriate to delay consideration of Mr Lowth’s application for a certificate to be employed or engaged by an organisation. Mr Lowth is currently dependent on earnings from casual construction work. He has an employment opportunity with the CEPU that he wishes to take up. I do not consider it is fair to him to defer consideration of his application for a certificate under s 323MD(1) if it would, or might, deny him the opportunity to obtain employment which will provide him with a reliable income and allow him to perform work which he regards as consistent with his skills and experience. On the material before the Commission, I am satisfied Mr Lowth is a fit and proper person to be employed in, or engaged by, an organisation.
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.
Conclusion and Disposition
For these reasons, based on the material that is presently before the Commission, I am satisfied that Mr Lowth is a fit and proper person to be employed or engaged by an organisation for the purposes of s 323MD(2) and am satisfied it is otherwise appropriate to grant Mr Lowth a certificate under s 323MD(1) of the RO Act. The Commission is not prohibited from granting a certificate by s 323MD(3) as Mr Lowth is not disqualified under the Determination and disqualified from holding office under s 215(1) of the RO Act. A certificate will be issued concurrently with this decision.
Consideration of Mr Lowth’s applications for certificates under s 323MC(1) of the RO Act and 177A(7) of the FW Act will be deferred pending completion of the investigation into the Queensland and Northern Territory Branch of the Construction and General Division. Mr Lowth has leave to approach my chambers to press for a determination of those applications upon completion of that investigation or at any time if he chooses to do so.
VICE PRESIDENT
Appearances:
C Massy, of counsel, instructed by Davies Lawyers, for the applicant
Hearing details:
1 April 2025.
Sydney (via Microsoft Teams).
[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] Fair Work Act 2009 (Cth), s 176(1)(c) and (d).
[7] Fair Work Act 2009 (Cth), s 176(1)(b) and (3).
[8] Revised Explanatory Memorandum to the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) at [25].
[9] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 (Toohey and Gaudron JJ).
[10] Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-157 (Dixon CJ and McTiernan and Webb JJ).
[11] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 348 (Mason CJ).
[12] Teachers Registration Board of South Australia v Edwards (2013) 117 SASR 246 at [103]-[104] (Anderson J).
[13] Re Maritime Union of Australia[2014] FWCFB 1973; (2014) 241 IR 216 at [25]; Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Industrial Union of Employees (Qld)[2014] FWCFB 7154 at [26]; Re Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia[2015] FWC 1522 at [32].
[14] Fair Work (Registered Organisations) Act 2009 (Cth), s 5(1) and (2).
[15] Fair Work (Registered Organisations) Act 2009 (Cth), s 5(3).
[16] Revised Explanatory Memorandum to the Fair Work (Registered Organisations) Amendment (Administration) Act 2024 (Cth) at [25].
[17] Fair Work (Registered Organisations) Act 2009 (Cth), ss 285-287.
[18] Fair Work Act 2009 (Cth), s 177A(8).
[19] Director of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union[2014] FWCFB 5947 at [22]-[23].
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