Fair Work (Registered Organisations) Amendment (Administration) Act 2024

The Fair Work (Registered Organisations) Amendment (Administration) Act 2024 amends both the Fair Work Act 2009 and the Fair Work (Registered Organisations) Act 2009. Its purpose is narrow and specific. It creates a statutory framework for the administration of the Construction and General Division of the Construction, Forestry and Maritime Employees Union, and its branches, and it deals with actions taken under that scheme.

The Act does not set up a general rule for all registered organisations. It is aimed at one identified division of one organisation and that division's branches. That scope matters for businesses because the page should not be read as changing bargaining or union governance rules across the board.

The amendments do two main things. First, they create the administration scheme, including how it starts, what the administrator can do, how long it can run, and how it can end. Second, they add Fair Work Act restrictions on certain people called removed persons acting as bargaining representatives unless the Fair Work Commission gives them a certificate.

The legislation is in scope for the Construction and General Division of the CFMEU and each of its branches. It also affects officers, employees, workplace delegates and members connected with that Division and those branches, because the scheme can deal with suspension, removal, disciplinary action, employment termination, complaints and compliance measures.

For businesses, the most likely direct touchpoints are employers and contractors that bargain with, correspond with, or otherwise deal with that Division or one of its branches. A business may also be affected if a person involved in bargaining has become a removed person under the scheme, or if the administrator's actions change who is authorised to act for the Division.

Businesses that do not deal with the Construction and General Division or its branches may see little or no direct effect. The Act should not be read as automatically changing dealings with other unions, other divisions, or the whole CFMEU beyond the Division and branches covered by the scheme.

Administration does not begin merely because the Act commenced. The Act sets a two-step trigger.

First, the Minister may determine a scheme for the administration of the Construction and General Division and its branches if the Minister is satisfied that, having regard to Parliament's intention in enacting the Act, it is in the public interest for the Division and its branches to be placed under administration. That determination must be made in writing and is a legislative instrument. The Act also says the usual disallowance rule in section 42 of the Legislation Act 2003 does not apply to that instrument.

Second, the General Manager must appoint an administrator in writing as soon as practicable after the scheme is determined. If the scheme specifies the person to be appointed, the General Manager must appoint that person and must not terminate that person's appointment except as the scheme allows.

The Division and its branches are placed under administration from the earliest time when both the legislative instrument determining the scheme and the appointment of the administrator are in force. Until both steps happen, the administration has not started.

The Act requires the scheme to deal with a range of matters. These include who is to be appointed as administrator, suspension or removal of officers, declarations that offices are vacant, timing of elections, disciplinary action by the administrator, termination of employment of employees of the Division or its branches, alteration of rules by the administrator in specified circumstances, reports to the Minister or General Manager, delegation by the administrator, engagement or employment of people to assist the administrator, and cooperation with inquiries by law enforcement agencies or regulators.

The disciplinary powers contemplated by the Act are broad. The scheme must provide for disciplinary actions by the administrator, including expulsion of members and disqualification of officers for up to 5 years, including in circumstances not provided for by the rules of the CFMEU or the Construction and General Division.

The Act also says the scheme may provide for any other matters the Minister considers appropriate. In addition, the scheme and actions taken under it have effect despite anything in the Registered Organisations Act, Part 2-4 of the Fair Work Act, or the rules of the CFMEU or a branch, division or part of it.

For businesses, this means the administrator's authority can override ordinary internal union rules and some otherwise applicable workplace law settings in this specific context. If a business is dealing with the affected Division during administration, it is sensible to check whether a relevant action is being taken under the scheme rather than under the union's ordinary rules.

While the Division and its branches are under administration, the administrator has control of their property and affairs, may manage that property and those affairs, may dispose of property, and may perform any function or exercise any power that the Division, its branches, or their officers could have performed or exercised if they were not under administration.

The Act makes clear that the administrator may investigate past practices of the Division and its branches. The administrator also has the function of promoting compliance by the Division with Commonwealth, State and Territory laws, including workplace laws. The administrator must also ensure, as far as reasonably practicable, that officers and employees have complied and continue to comply with obligations imposed by the Act, including obligations that applied before the administration provisions commenced, and that they are held accountable where they have not complied.

In exercising powers, the administrator must be satisfied they are acting in the best interests of members of the Construction and General Division and its branches, and must have regard to the lawful objects of the CFMEU as defined in the rules at the commencement of the administration provisions.

For businesses, the practical effect is that the person you deal with may change. Authority may sit with the administrator rather than with former office holders or staff. Processes may also change if the administrator is reviewing past conduct, changing internal arrangements, or requiring cooperation with inquiries.

The Fair Work Act amendments create a new concept of a removed person. Broadly, a person is a removed person if, as a result of the administration scheme, they are removed or suspended as an officer, their employment in the relevant part of the CFMEU ends or is suspended, or they are removed or suspended as a workplace delegate and the suspension has not ended. A person can also be a removed person if, on or after 1 July 2024 and before administration starts, they voluntarily ceased to hold the relevant office, employment or delegate role, and during the administration the administrator forms the opinion that the person would have been made to cease that role under the scheme if they had not chosen to leave.

A removed person must not be a bargaining representative of an employee or employer, purport to be one, or hold out that they are one, unless they hold a certificate granted by the Fair Work Commission. The Commission may grant a certificate on written application if satisfied the person is a fit and proper person to be a bargaining representative.

In deciding that question, the Commission must consider the reasons the person became a removed person, including whether the person engaged or allegedly engaged in certain kinds of conduct referred to in the Registered Organisations Act, whether the person has relevant convictions involving fraud, dishonesty, violence or property damage, and the person's general character. The Commission may also consider other relevant matters. It must not grant a certificate while a relevant disqualification under the scheme is still running, or while the person is not eligible under subsection 215(1) of the Registered Organisations Act to be a candidate for election or to be elected or appointed to office in an organisation.

For employers in bargaining, the practical point is straightforward. If someone connected with the affected Division or a branch claims to be acting as a bargaining representative and there is reason to think they may be a removed person, check whether they hold a Fair Work Commission certificate. The Act preserves an employee's ability to appoint themselves as their own bargaining representative.

The Act gives the administrator a special pathway to alter the rules of the Construction and General Division under the scheme. If the administrator makes an alteration, they must lodge particulars with the Fair Work Commission within 35 days, unless the General Manager allows a longer period. The notice must include a signed declaration that the alteration was made in accordance with the scheme and that the particulars are true and correct to the best of the administrator's knowledge and belief. The alteration does not take effect unless the particulars are lodged and the General Manager certifies that, in the General Manager's opinion, the alteration was made in accordance with the scheme and, subject to the scheme and the override provision, complies with and is not contrary to the relevant laws and instruments.

The administrator must also establish a written complaints procedure as soon as practicable after appointment, unless a previous administrator has already done so. The procedure must be publicised to members and made publicly available. It must allow complaints about conduct that is or is alleged to be improper, unlawful or criminal by current or former officers, employees, workplace delegates or members connected with the affected Division and branches. Complaints may be made to the administrator or to a person authorised in writing by the administrator.

The Act protects the identity of complainants, subject to limited exceptions, and allows complaints to be referred to law enforcement agencies or regulators. It also links complaints made under the procedure to whistleblower protections under Part 4A of Chapter 11 of the Registered Organisations Act.

There is also a specific assistance power. The administrator may give written notice requiring certain people to produce documents or provide assistance for the purposes of performing the administrator's functions or exercising powers. The extract available here shows that the notice must specify a period of at least 14 days. Businesses are most likely to encounter this indirectly, for example where site records, bargaining records or correspondence are relevant to dealings with the affected Division, but the direct recipients and full detail of the provision should be checked against the current Act before acting on a notice.

The default position is that the administration ends on the fifth anniversary of the day it began. The Act also says the core provisions dealing with placing the Division under administration, determining the scheme, appointing the administrator, and varying or revoking the scheme cease to be in force on that fifth anniversary.

However, the administration can end earlier in limited circumstances. The administrator may request the Minister to vary the scheme, including to end the administration for a branch, or to revoke the scheme entirely. If the Minister is satisfied that the requested variation or revocation is in the public interest, the Minister must make the change requested.

There is an important minimum period. The Minister must not vary the scheme to end administration for a branch, or revoke the scheme, before the third anniversary of the day administration began unless the administrator gives written notice that the relevant branch, or for full revocation the Construction and General Division and each of its branches, is functioning lawfully and effectively. So the administration cannot simply be ended early as a matter of discretion alone. The administrator's written notice is a statutory precondition to ending it before three years.

Even after the administration ends, actions of the administrator continue in effect. The Act expressly preserves those actions despite the end of administration and despite the expiry of the core administration provisions.

These checks matter because the Act operates through a specific statutory scheme rather than by changing every day-to-day union interaction automatically. The practical position can depend on whether administration has actually commenced, what the scheme says, and whether a particular person has been removed or certified.