Certificate to be a bargaining representative

Section 177A of the Fair Work Act restricts certain persons from being a bargaining representative for an employer or employee, or purporting to be or holding themselves out to be a bargaining representative, unless we have granted them a certificate.

Find out more about Bargaining representatives for agreements.

On 23 August 2024, the Construction and General Division of the Construction, Forestry and Maritime Employees Union (CFMEU) and its Divisional branches were placed under administration for a period of up to 5 years. The scheme of the administration (scheme) is contained in the Fair Work (Registered Organisations) (CFMEU Construction and General Division Administration) Determination 2024. 

Restrictions on being a bargaining representative apply to ‘removed persons’, as defined in section 177A of the Fair Work Act.

A person will be a ‘removed person’ under section 177A of the Fair Work Act if: 

• any of the following events has happened as a result of the scheme:
  • the person has been removed or suspended as an officer (as defined in section 12 of the Fair Work Act) or the person’s role as an officer otherwise ends
  • the person’s employment with the CFMEU, working in the Construction and General Division or any of its branches, is terminated or otherwise ends, or is suspended
  • the person is removed or suspended as a workplace delegate, or their role as a workplace delegate otherwise ends
•  if the event involved suspension, the suspension has not ended.

A person will also be ‘removed person’ if:

• on or after 1 July 2024 but before 23 August 2024 (when the CFMEU Construction and General Division and its Divisional branches were placed under administration) the person has, by choice, stopped being:
  • an officer (as defined in section 12 of the Fair Work Act) of the CFMEU Construction and General Division or any of its branches, or
  • employed by the CFMEU working in the Construction and General Division or any of its branches, or
  • a workplace delegate for members of the CFMEU Construction and General Division or any of its branches; and
• 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 to ensure the person stopped being an officer, employee or workplace delegate.

We may grant a certificate for a 'removed person' to enable that person to be a bargaining representative if we are satisfied that the person is ‘a fit and proper person to be a bargaining representative’.

Unless a 'removed person' holds a certificate granted by us, they must not represent that they are, or can be, a bargaining representative of an employee or employer. Penalties could apply if a removed person breaches these restrictions.

A 'removed person' does not need a certificate to appoint themselves as their own bargaining representative. 

A ‘removed person’ can apply under section 177A(7) of the Fair Work Act for a certificate to be a bargaining representative.

To decide whether the 'removed person' is a ‘fit and proper person to be a bargaining representative’, we must have regard to:

• the reasons the person became a 'removed person', including whether the person engaged, or allegedly engaged, in these kinds of conduct:
  • misappropriation of the organisation’s funds
  • a substantial breach of the organisation’s rules, or
  • gross misbehaviour or gross neglect of duty
• 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:
  • fraud or dishonesty
  • intentional use of violence against another person, or
  • intentional damage or destruction of property
• the general character of the person, and
• any other matters we consider relevant.

We can’t grant a certificate if the 'removed person' is:

• disqualified under the scheme of administration, and the period of the disqualification has not ended, or
• ineligible to hold office under section 215(1) of the Registered Organisations Act because they have been convicted of certain offences. Find out more here: Disqualification from holding office.