Consideration
78 The four firefighters applied to be members of the Federal Union, with the State Union now accepting that that was the firefighters' intention in completing the double-sided forms. Each witness understood that payment of their subscriptions to the State Union would render them financial members of both the State and Federal Unions. The evidence of the State Union's two witnesses was to the effect that it was always the intent to treat members as financial members of both the State Union and the Queensland Branch.
79 As noted above, Mr Oliver, who was Queensland Branch Secretary since 2010, had authority to enter in the Register the name of any applicant for membership if in his opinion there was "no doubt as to the admission of the applicant": r 64(1)(ee). There was no evidence to suggest that this rule was not given effect to or complied with. That is, there was no doubt about the admission of these four firefighters into membership of the Federal Union. I accept the applicant's submission that an inference should be drawn that this power was "exercised in the manner contemplated".
80 There was only one membership database. Membership details were entered onto the membership database, and Ms Oliver accepted that, having been entered on the database as a member, the database was the only evidence she used on a day-to-day basis to check whether a person was a member of the Queensland Branch. That membership database was used to calculate the affiliation/capitation fees payable to the Federal Union, which were based on the number of members of the Queensland Branch.
81 Ms Oliver accepted that this one database was used to satisfy compliance with the obligations in the FW(RO) Act. She also confirmed that the information placed into the membership database was used for the purposes of complying with both state and federal statutory requirements, including in respect of producing a roll of members for the Australian Electoral Commission's (AEC) conduct of Queensland Branch elections.
82 The membership database, which is from where the roll of members of the Queensland Branch prior to 3 September 2018 was generated (referred to above at [64]), contained the names of these four firefighters. As at that date, the four firefighters were members of the Federal Union. Likely in or around September 2018, (although noting [64] above) these firefighters, without their knowledge, had their names removed from the Register, with the effect they were no longer members. The precise date of their removal from the Register is unclear, and of no practical moment. The lists of members from the Register compiled by Ms Oliver for membership post-3 September 2018 have their names removed (which was before the s 168 letter was posted on the UFUQ website). It is their position as members held prior to that occurring, which the four firefighters want restored by the declarations sought.
83 Once entered on the Register as a member of the Federal Union, members remain on the Register until they resign, or when one of the circumstances set out in the FW(RO) Act (for example, s 172 of the FW(RO) Act, where a member ceases to pay required fees for 2 years) or the UFUA Rules arises, to warrant removal. Absent that, there is no power or basis to revoke membership: see for example, Australian Education Union v Lawler [2008] FCAFC 135; (2008) 169 FCR 327 at [14], [19] and [239]-[240]. Neither of these situations has been suggested by anyone to have been the cause of the action taken at the time, removing these four firefighters from the Register. The respondent does not point to any provision of the FW(RO) Act or UFUA Rules to justify what occurred, and nor does Mr Chalmers, the then Acting Secretary of the Queensland Branch.
84 Rather, as noted above, the respondent's evidence and submission is that the removal of the names of these four firefighters (and approximately 2500 others) was done in accordance with legal advice. The legal advice was admitted over the objection of the applicant. Its relevance was said to establish the bona fides of what occurred, in a context where the applicant had made allegations as to the respondent's conduct. The legal advice was tendered and admitted not for the truth or correctness of its content, but the fact of it. However, the respondent does not seek to defend the correctness of that advice which was obtained by them (and nor does it rely in this Court on any reasoning about membership akin to that contained in the advice). Its concession in respect to the membership of these four firefighters appears to cut across the concerns said to be had about membership. Nonetheless, the respondent's submission starts from the position that as the four firefighters have been removed, there is a real question as to their status because of the absence of them making any subscription payment to the Queensland Branch (and the alleged failure of the Queensland Branch to set such a subscription payment).
85 The State Union submitted that this application only relates to the four firefighters whose application for membership was made prior to the form changing in July 2013. It was submitted that the s 167 application was not about the removal of members from the membership roll, and in any event, that was done in good faith acting on legal advice. In that context, it was submitted much of the Federal Union's submissions as to those events which occurred after the form changed in July 2013 were irrelevant. It is correct that this application only relates to four firefighters, and that each did apply prior to the form changing in July 2013. However, contrary to the State Union's contention, the circumstances which resulted in them being removed from the Register of the Federal Union are plainly relevant to a consideration of this application. This is all the more so given the State Union is opposing the declarations sought, contending that any declarations, if made, should not be retrospective.
86 Before addressing the respondent's evidence as to acting on legal advice, it is appropriate to consider some factual matters, in addition to those referred to above.
87 The evidence establishes that all new members who joined after 1990 were treated in the same manner as existing members. They were recognised as financial members of the Federal Union by reason of having paid membership subscription fees to the State Union and having applied to join "the Union". As Ms Oliver, who was called by the respondent accepted, it was always the intent to treat members as financial members of both the State Union and the Queensland Branch. And each member was treated as a financial member of both the State Union and the Queensland Branch. For example, Mr Chalmers accepted that the payment of one set of fees entitled him to be nominated for election in both the Federal Union and State Union (noting that financiality was a precondition to nomination).
88 That position is reflected in the contemporaneous documentary evidence. To take just some examples.
89 The information document produced by the respondent as to the benefits of membership, which is typical of that provided to recruits at induction training, relevantly includes the following:
Upon joining the UFU, you become a member of two organisations, the Queensland registered United Firefighters Union of Australia, Union of Employees, Queensland and the Federally registered United Firefighters Union of Australia, Queensland Branch.
90 Financial statements filed by the Queensland Branch also refer to the members as "dual members" of the two unions. For example, the Queensland Branch's financial reports for the FY ending 30 June 2013, under the heading 'Related Party Disclosures', provided that (emphasis added):
During the financial year, in accordance with a resolution of the Branch Committee of Management, a grant of $250,000 was received from the United Firefighters Union of Australia, Union of Employees Queensland to ensure that the Branch is presently able to effectively function and provide ongoing support to the dual members of the UFUA/UFUQ.
91 From January 2014 to August 2018, the State Union website provided that:
On acceptance of your membership, you receive member status of both the Queensland registered United Firefighters' Union of Australia, Union of Employees, Queensland and the Federally registered United Firefighters' Union of Australia, Queensland Branch.
92 The audited financial statements for the State Union, including up until the FY ending 30 June 2019, recorded payments to and from the Queensland Branch. In that financial statement, 'Note 7 on Related Parties' relevantly recorded that:
The members of the United Firefighters Union of Australia Union of Employees Queensland (State Union) are also members of the United Firefighters Union of Australia Qld Branch (Federal Union).
93 The financial statements are required by s 268 of the FW(RO) Act to be filed with the ROC and it can be accepted that these statements are admissions made pursuant to statutory duties, signed off by Mr Oliver, which appeared in public documents, and as such are made in circumstances of "the utmost solemnity": NT Power Generation Pty Ltd v Power & Water Authority [2004] HCA 48; (2004) 219 CLR 90 at [55].
94 As referred to above, the officers in the State Union applied every three years, from 2006 onwards, to the Queensland Industrial Relations Commission (QIRC) to be exempt from the need to run elections for the State Union. The applications were made and granted based on the fact that membership of the Federal Union was the same as membership of the State Union. As described above at [80], the State Union maintains an electronic membership database which was used for the purposes of producing a roll of members to satisfy requirements in respect of the AEC's conduct of elections in relation to the Queensland Branch. As noted above, Ms Oliver confirmed that the information included on an applicant's membership form was ordinarily entered onto the membership database and that information was treated as being definitive of any question of membership.
95 The exemption applications made each election cycle were supported by an affidavit of Mr Oliver, the Secretary of the State Union. In these affidavits, Mr Oliver deposed on a number of occasions that: "All members of the UFUQ are eligible to be, and are, members of the UFUA pursuant to rule 6 of the UFUA rules". These statements were on oath, with all that that entails. That statement was made most recently by Mr Oliver in an affidavit sworn on 24 May 2018, in respect to an exemption for the 2018 election. Such statements were also made in other affidavits dated 10 September 2012, 30 January 2013, 15 May 2013, and 19 May 2016.
96 In addition, the terms of the membership application forms in both the pre-2013 and the 2013 versions, referred to above at [20]-[27], reflect this.
97 Turning then to Mr Chalmers' evidence, that whatever was done was on the advice received from Hall Payne. That advice was dated 29 August 2018. The respondent tendered a copy of that advice in support of Mr Chalmers' evidence. However, on a proper reading, that advice does not support that contention. As noted above, the respondent's closing submission did not appear to seek to defend the advice or advance the positions advocated therein.
98 First, the advice reflects that certain instructions were provided which formed the basis of the advice, including that the membership form provided to Hall Payne on which the advice was sought was in "long-standing use". The form provided was the 2013 version, which had only been in operation for five years, and, as the membership figures set out above at [31] show, only applied to a small number of its members. As is apparent from the forms reproduced above, there is a difference in language between the 2013 form and the pre-2013 form. The vast majority of members submitted the pre-2013 form which applied for over 20 years. It follows that at best, the advice on that aspect could only have applied to a limited number of members. Mr Chalmers in cross-examination conceded as much. This raises the issue of why such inaccurate instructions were provided. Nonetheless, the BCOM (and the State Union) must have been aware that the advice had limited application, but chose irrespectively, on Mr Chalmers' evidence, to act on it in respect to all members. I observe also in this context that on 10 September 2018, Mr Marshall had responded to Mr Oliver's letter of 3 September 2018 and expressly raised the issue with him of how long the defective application form had been in use: see [41]-[42] above.
99 Second, on the issue of membership, the advice suggested that it was arguable that persons may be members on the basis that there was evidence (other than the membership application form) they were treated as members. Hall Payne, although it expressed some doubt that any such conduct existed (other than officers nominating for elections), indicated that it "would appreciate discussing this aspect further". Even given their concerns, the advice was that nonetheless the BCOM would be members by virtue of the fact they had been treated as members. There is no evidence of any further advice being sought, or indeed, of any further discussion with Hall Payne on this topic. There is also no evidence, and therefore no explanation, as to why seeking further advice did not occur. It would have been the obvious step to undertake if the BCOM was acting in the interests of its members.
100 Third, the BCOM instead simply concluded, in effect, that members of the Federal Union, which included these four firefighters, were no longer members of the Federal Union (apart from the BCOM and employees of the Federal Union) and on 18 September 2018 placed a link on the UFUQ website purporting to provide notice of the issue and a solution via s 168. The Hall Payne advice did not recommend that a notice directed to members be put on the website in the manner which occurred. The issue of s 168 arose in the advice in respect to the BCOM, although I note that the advice did state "the notice should invite any UFUQ members who wish to make an application to be members of the Branch, to make an application". That said, the advice cautioned against the use of s 168 as a means to rectify individual memberships because of the time limits, noting that it is "unlikely to have value". I note also that if such notice was to be given, the advice referred to the need for it to direct attention to the issues with the membership and to the provisions of s 168.
101 Even if, for the purpose of argument, Mr Chalmers had concerns about some membership forms, the Queensland Branch members were not properly notified by him of any issues.
102 There was no information readily accessible on the website that would alert either the four firefighters, or any other person, to there being any issue with their membership. Rather, as discussed above, Mr Chalmers simply placed a link on the State Union website in an obscure manner, described above at [43]-[44]. The link did not alert any member to there being an issue with their membership. The name of the link was "UFUA-Q members form - s168". The link was not brought to their attention. As posted, no member accessing the website, even if they had clicked through to the page with the link, would know to click on that link unless they already knew there was an issue with their membership. Nothing on the face of the link alerted them to the fact of an issue as to the status of their membership. Nothing on the link alerted them to any time sensitivity of actions one might take. The link was placed on the website about two weeks after receipt of the Hall Payne advice. Once the link was accessed, the information provided there did not include any reference to the statutory time limit which applies to s 168. If it was genuinely intended that persons who understood themselves to be members of the Federal Union be given proper notice that they were no longer members and that they be provided with an opportunity to rectify that, it would not have been done in the manner in which it was.
103 The information provided in the letter, recited above at [45], was also inaccurate. I note at the outset, that although the letter was signed off by Mr Chalmers as Acting Secretary of the Queensland Branch, it is addressed to State Union members (by this time they had been removed from the roll as Federal Union members). The statement that the view of the State Union's lawyers was that members did not become a member of the Federal Union is incorrect. If that statement is based on the Hall Payne advice, it was not the advice given. As noted above, Hall Payne needed more information to consider if the members had been treated as members of the Federal Union. I note also that the letter acknowledges the obvious: State Union members had been treated by the Federal Union as Federal Union members. The statement that they are not members of the Federal Union, and that the error in membership "appears to have been inherited by the current executive and at no point in time since the formation of the federal union over 20 years ago, was it picked up" is also incorrect. It will be recalled that the only membership form provided to Hall Payne was the form in use from July 2013. Mr Oliver was the Queensland Branch Secretary at that time, and Mr Chalmers was a member of the BCOM. Both Mr Oliver and Mr Chalmers held equivalent positions with the State Union. The change of form in 2013 occurred under their watch. The changes were instigated or undertaken by the State Union (see [24]-[25] above). The letter also refers to the issue of membership applying to all members; it was not confined to those who applied using the 2013 form, which was the only form about which advice was given. Ms Oliver believed the State Union's lawyer or industrial officer drafted the letter. That was not Mr Chalmers' evidence, which was silent on the topic. It is also unlikely to have been, given the plain inaccuracies. Irrespective of who drafted it, Mr Chalmers published the letter on the website, which even a cursory reading of it by a person in his position, would have made it readily apparent that it contained statements which were incorrect.
104 Given the manner in which the notice was posted on the website, unsurprisingly, only 20 applications for membership were made, and they were all made outside the 28 day time limit imposed by s 168. The four firefighters did not become aware of the membership issue via the website; rather, their attention was drawn to it, outside the time limit, by another firefighter.
105 There was evidence that members could have been notified of important matters via a Code Red or Code 2, the State Union's news bulletin. Mr Chalmers agreed that these labels are used to describe important announcements that impact union members, but gave evidence that Code Red had not been used for a long time and he did not think about or view the notice as being a Code Red. In that context, in each of Mr Oliver's affidavits accompanying the exemption applications, he notes that information amongst firefighters is shared using methods such as a Code 2, which, at least in the case of elections, is forwarded to every fire station and location where State Union members are employed, placed on the worksite noticeboard and State Union website, and faxed directly to members of the SCOM, who ensured it was circulated to members of the State Union. It is noted that these are "very effective" means by which members "traditionally receive notice". I note that a Code 2 was published in respect to each of the triennial elections (up to and including 2018).
106 Regardless of the label used, given the significance of the message, and given that loss of membership with the Queensland Branch would result from a failure to complete the s 168 form, one would expect at the very least that Mr Chalmers, as Acting Secretary of the Queensland Branch, would take whatever steps were necessary to ensure this notice was brought to the attention of members. That could easily have been done, but it was not. The removal of a person as a member of a union, in the circumstances, can hardly be classified as anything other than an important issue. Mr Chalmers' explanation for the manner in which this notice was posted, and the failure to take steps to bring such an important matter to his members' attention, is at the very least disingenuous. In all the circumstances, the actions taken by Mr Chalmers were not consistent with a person who had responsibilities to his members. It cuts across Mr Chalmers' evidence that he was genuinely taking action to remedy the situation and find a workable solution (particularly given the form was changed in 2013 by the State Union itself).
107 Fourth, as noted above, Mr Chalmers' actions affected all members of the Queensland Branch (but for the 56 persons referred to previously), regardless of which application form was completed. They were taken knowing that the 2013 form only applied to a limited number of members (which Mr Chalmers accepted in his evidence was the case). In evidence, particularly re-examination, Mr Chalmers said that the Hall Payne advice also related to the subscription issues. Although that can be accepted at face value, that evidence does not assist in explaining Mr Chalmers' actions. The explanation provided by Mr Chalmers' in the letter posted on the UFUQ website refers only to the membership form. There is no reference at all to subscription issues. The s 168 form attached to the letter, the completion of which was all that was necessary to reinstate a person's Federal Union membership, does not make any reference to subscription. It was not then seen as a hurdle to reinstatement of membership. There is no suggestion that any issue of subscription would prevent reinstatement occurring. This reflects that the issue of concern was one of membership and not financiality. It will also be recalled, as referred to above at [56], that Mr Chalmers' report to the ROC dated 30 November 2018, which responded to the ROC's inquiry into the sudden drop in membership, explained the loss solely by reference to an issue with membership forms. There was no reference to financiality. Mr Chalmers' letter of 30 November 2018 also states that the s 168 notice was placed on the UFUQ website to "put beyond doubt" that the "officers of the Branch" and "national system employers" were members. Even leaving aside that these statements misrepresent the effect of the letter and s 168 notice put on the UFUQ website, there is again no reference to financiality. I note also that Mr Oliver's letter to Mr Marshall dated 3 September 2018, referred to above at [41], which purports to outline his conclusion in respect to his investigation, although referring to financial issues, does not identify financiality as affecting the question of membership. Indeed, the letter sets out proposals to rectify the position of dual members which relevantly included that "the UFUA rules be amended to provide that dual members who are financial in the UFUQ are recognised, whilst attached to the UFUA Queensland Branch, as financial members of the UFUA without the payment of further subscription". This implies an acceptance by the State Union that such members were also financial members of the Federal Union.
108 Most importantly, the Hall Payne advice, while providing advice to remedy the issue of subscriptions, did not advise that the consequence was that this resulted in members no longer being Federal Union members. It did not advise that the Queensland Branch members be removed as members on that account. Any issues relating to financiality were not destructive of membership. In so far as Mr Chalmers suggests in his evidence that the subscription aspect of the advice explained his actions, or that his actions accorded with that aspect of the advice, that suggestion cannot be accepted.
109 In any event, Hall Payne advised inter alia, that a rule change could be made so that a financial (dual) member of the State Union would be recognised as a financial member of the Queensland Branch. Such a rule would recognise what was intended: that payment of one subscription fee entitled a firefighter to membership with both unions. The BCOM had the power to effect rule changes which affected the Queensland Branch: r 87. It did not affect such a rule change. Moreover, an amendment to the rules with the same effect was also suggested in the letter from Mr Marshall on 8 November 2018, and was rejected by Mr Oliver on 22 May 2019.
110 I note also that in respect to the s 323 application, the applicant submitted that there should be nothing stopping the administrator (if one is appointed) corresponding with persons who were members of the Queensland Branch at the time of the purported wrongful disenfranchisement. The State Union did not challenge that submission. In particular, it was not suggested by the State Union that a scheme encompassing such an approach was inappropriate because these persons were not properly members of the Federal Union, or that they were not financial members, or that they were properly no longer members.
111 Finally, as will be recalled, each of these four firefighters applied for membership prior to the change to the membership forms in 2013. The pre-2013 form has not been the subject of any issue. The Hall Payne advice in relation to any concerns about membership arising from the post-2013 form, did not apply to them. The wording on the pre-2013 form is clear. Moreover, the evidence establishes that when the change was made to the form in 2013, it was not to be a change of substance, but rather a cosmetic change. The basis of application for membership was not to change. I note in that context r 7(4), which provides that the validity of any membership is not affected by matters of form.
112 I note also that union membership rules such as r 7 should be construed liberally: see for example, Re Carter; Re Federated Clerks Union of Australia, Victorian Branch (No. 1) (1989) 32 IR 1 at 27; Brown v Health Services Union [2012] FCA 644; (2012) 205 FCR 548 (Brown v HSU) at [81].
113 The respondent called only two witnesses: Mr Chalmers, Secretary of the State Union, and Ms Oliver, Operations Manager of the State Union. I note that the affidavit evidence of Mr Chalmers refers only to the State Union and not to anything he did with the Queensland Branch, although that was the subject of cross-examination. In Mr Chalmers' evidence it became apparent that he had an agenda to push, being that of the State Union. I note that the State Union's initial approach to the issues in this case, including the approach when questioning the four firefighters, was on the basis that there was no benefit to being a member of the Federal Union, and that it was the State Union that looked after the firefighters' interests. That strategy was eventually abandoned in closing submissions. I note also that Mr Chalmers is currently a member of the SCOM.
114 That said, it is to be recalled that the action which resulted in these four firefighters being disenfranchised was one taken by the BCOM, in the context where, in May 2018, the minutes of a meeting record the breakdown of the relationship between the Federal and State Unions. When the issues were raised by Mr Oliver (and the BCOM) with the Federal Union following the Hall Payne advice (leaving aside that there are questions of its accuracy), responses were provided promptly, including possible amendments to the UFUA Rules. Mr Oliver did not respond to the Federal Union for over 6 months, and when he did respond, it took the form of a flat denial: see [54] and [58] above. When the members of the BCOM resigned it was effectively at the same time. Where an explanation for doing so was given, it was to the same effect: see [62] above. At that time, the composition of the BCOM and the SCOM was identical.
115 Given the allegation made by the applicant as to the circumstances in which these four firefighters were removed from membership, it is notable that Mr Oliver, who had been the Queensland Branch Secretary from 2010 until 29 August 2018 (the day the Hall Payne advice was received), was not called. In his position he would have been instrumental in what occurred at the Queensland Branch and State Union during that time. As noted above, the change of membership form in 2013 occurred while he was Queensland Branch Secretary, and given his position, under the UFUA Rules, he was responsible for being satisfied that a person could be admitted as a member. Given his position, he would have been involved in obtaining the advice from Hall Payne, and the inference is that he would have provided the instructions. This is reinforced by the fact the Hall Payne advice is addressed to Mr Oliver, and refers to there being recent discussions (which given the context it can be assumed likely involved him). Since receiving that advice, the evidence reflects it was Mr Oliver who was communicating with Mr Marshall about the purported issues of concern. Although he had removed himself from the position of Secretary of the Queensland Branch, the evidence reflects he still had involvement in their affairs.
116 The unexplained failure by a party to call a witness may in appropriate circumstances support an inference that the uncalled evidence would not have assisted the party's case: Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298 (Jones v Dunkel). Although it is unnecessary to consider and resolve some of the factual assertions advanced by the applicant as to the conduct of the BCOM, and in particular Mr Oliver, in the circumstances, the failure to call Mr Oliver does give rise to a Jones v Dunkel inference.
117 As noted above, the respondent does not appear to defend the propriety of the conduct of removing these four firefighters from the Register on the basis of the Hall Payne advice, or indeed for any other reason.
118 In my view, Mr Chalmers' evidence, that the actions taken, which had the consequence that these four firefighters were disenfranchised, along with many others, were in accordance with legal advice, was disingenuous. Regardless of who was said to have driven the actions which resulted in the disenfranchisement, or whether the actions taken were by one person or multiple people, the action, the manner in which it was taken, the timing, and the inevitable consequences thereof, could not reasonably have been seen to accord with legal advice, particularly given the obligations of the BCOM towards its members.
119 The respondent's submission that any declaration made as to membership of these four firefighters should not be retrospective because there is an absence of fees paid to the Queensland Branch by any of the four individuals, and there is a real question as to whether the individuals were properly members, must be considered in the above context. The submission proceeds on the basis that the four firefighters did pay subscriptions that were received by the State Union. This submission raises the issue of whether membership subscriptions received by the State Union were in satisfaction of the requirements for financial membership of the Queensland Branch.
120 The only evidence is from Mr Chalmers and Ms Oliver, and the highest that evidence goes is that they were not aware of a subscription fee set for the Queensland Branch, or any financial agreement. No witness gave evidence directly on this point about whether membership fees had been set. Although Hall Payne were instructed for the purposes of their advice that no subscription fee was ever determined pursuant to r 80, given the inaccuracies in the other instructions provided to them, that does not assist the respondent. As explained above, it can be inferred that the instructions were given by Mr Oliver, who did not give evidence. In addition, there was no evidence led of any person having undertaken an investigation into such matters.
121 In the notes to and forming part of the financial statements for the year ending 30 June 2017 for the Queensland Branch, the first item states:
The Branch is reliant on the agreed financial support of the United Firefighters Union of Australia, Union of Employees Queensland to continue on a going concern basis.
122 Ms Oliver, when cross-examined about this, gave no explanation, except that she had not seen any such agreement. This illustrates the limitations of the witnesses called by the respondent.
123 The Federal Union accepted there was no direct evidence that a subscription fee was set by the Queensland Branch, but argued that it can be inferred that it was determined by the branch that payment of a contribution by the State Union to the Federal Union satisfied the relevant rules. Mr McConville, in cross-examination, accepted that the direct debit form was evidence of a subscription fee being set by the Federal Union because it was authorised by the Federal Union (see [29] above). Mr McConville always took the view that the subscription fee for the State Union and Federal Union was "one and the same". That form does reflect that the subscription is one for membership to both unions. In so far as the respondent places reliance on the absence of some documentary record evidencing any membership fee arrangement, the submission must be considered in a context where the practice of paying one subscription fee was sufficient to gain both memberships and where some records of the unions were destroyed by flood in 2011.
124 This submission must be viewed in the context where the evidence was that it was always the intent of the Federal Union and the State Union to treat members as financial members of both the State Union and Queensland Branch. As is plain from the evidence recited above, the evidence was that it was accepted that the payment of a single subscription fee was what was required for a person to be a member of both unions. As noted above, payment of the single subscription fee resulted in those paying becoming financial members of both unions. Although the respondent contends that there is a real question as to whether these four firefighters were properly members before they were removed, financiality was not the basis for their removal. Nor, on the evidence, was it the basis on which the removal from the Register of membership occurred. The four firefighters were not removed on the basis that they had failed to pay a subscription.
125 In that context, I do not accept the respondent's submission that as s 166 of the FW(RO) Act provides that a condition of eligibility to membership of an organisation is that a member pays a fee in relation to membership and s 172 provides that a member can be removed if they fail to pay their membership dues, this calls into question the historical membership of these four firefighters. Moreover, as noted in the paragraph above, this was not the basis of their removal. Nor was it considered at the time as a basis to prevent a successful s 168 application. I note also, in any event, that the UFUA Rules provide for non-financial members. Section 167 contemplates that an applicant may be unfinancial: s 167(5)(b) and see r 35.
126 It was accepted by the respondent during argument that a subscription fee could be set as a single fee for the two unions, although it was submitted that there was no evidence to suggest that occurred. The payment of a single subscription fee can, in certain circumstances, be effective to discharge the obligation for financial membership to each organisation: Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Gray [2012] FCAFC 158; (2012) 207 FCR 548 at [16], [37] and [52]. In Bailey v Krantz (1985) 13 IR 339, Gray J observed at 384 that:
A member paying one sum of money, which he or she believed was all that he or she was obliged to pay, would expect that all obligations arising under both sets of rules would be met from that sum of money, and that any further decisions made to spend that sum of money would be made in accordance with both sets of rules
127 And further:
If no intention may legitimately be inferred on the part of the payers, then it may be proper to look at the intention of the payees. These are, in effect, the elected officials, whose obligation it is to comply with both sets of rules.
128 The issue here is not whether the members could be admitted to membership pursuant to a fresh application, but rather that the four individuals be taken to have been members of the organisation, and in this instance, continuous membership.
129 The circumstantial evidence gives rise to the inference that there was an arrangement or understanding as to the subscription fees, which reflects the practice adopted since 1990. At the time of the membership of these four firefighters, it was understood by them, the Federal Union, and the State Union that the single subscription fee paid to the State Union entitled them to membership of both unions. As is apparent from the direct debit form recited above at [29], the one fee was for both unions, and both unions authorised this. They were admitted as members and entered onto the membership database, and that was used as being definitive of membership. They were financial members of both unions. Capitation fees were paid by the State Union to the Federal Union on the basis that they were financial members. The amount of the capitation fee paid to the Federal Union depended on the number of members. This implies the existence of some arrangement or understanding. The members had been exercising the rights of membership including voting in elections, and had paid dues which they were told would be sufficient to entitle them to financial membership of the Queensland Branch. On that basis, they were treated as members of the Federal Union.
130 It is that context in which the respondent's submission that the declarations ought not to be retrospective must be considered. The respondent submitted it was not necessary that the retrospective dates sought by each member were different, and one witness in cross-examination said that it would be sufficient for his purposes if he was declared a member at present.
131 The respondent's submission does not grapple with the circumstances which gave rise to the disenfranchisement of these four firefighters. It now appears that the basis on which the firefighters' membership was removed is not defended. In that circumstance, the Federal Union should not be in a position of having to seek declarations. Whether it is in this position because of the deliberate conduct of the BCOM, or whether it was the unintended consequence of the actions of the BCOM, as Mr Chalmers' claims, it is a result of flawed conduct. Nothing was pointed to in the FW(RO) Act or the UFUA Rules supports what occurred. I note that some persons on the BCOM at the time, or involved in this process, for example, Mr Oliver and Mr Chalmers, still hold positions with the State Union, as the State Secretary and Senior Vice President, respectively. It is unclear what genuine interest the State Union has in opposing a declaration of membership to the Federal Union being made retrospectively for these four firefighters.
132 Moreover, it is the Federal Union bringing this application, not the four firefighters. The UFUA Rules place significance on continuity of membership, for example, for electoral purposes: see sch 3, r 1(a).
133 I note that it is not necessary to resolve or comment upon the submissions of the Federal Union that retrospectivity would quell the outstanding dispute between the parties in the District Court of Queensland. This application concerns only four firefighters, in the context of s 167 of the FW(RO) Act.
134 Given the circumstances of the four firefighters' removal from the membership of the Federal Union, the respondent has not established any proper basis for why the declaration of membership should not reflect that the firefighters have been members since joining, and that their membership is continuous.