Document ID: chunk:federal_register_of_legislation:C2025C00150:section:177a:p2
Version: federal_register_of_legislation:C2025C00150
Segment Type: section
Provision Reference: s 177A (pt 2/3)
Character Range: 525561–528177

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.