United Firefighters' Union of Australia v United Firefighters' Union of Australia, Union of Employees, Queensland

Federal Court of Australia|2022-03-18|Before: Mr P, Abraham J

Pursuant to s 167 of the Fair Work (Registered Organisations) Act 2009 (Cth), the following persons have been members of the United Firefighters' Union of Australia (UFUA) continuously from the time that each of those persons joined the UFUA as indicated below: (a) Paul Hagger, from no later than 2 November 2001; (b) Lam Pham, from 17 August 2010; (c) Daniel Feeney, from no later than 10 January 2013; and (d) Scott Neumann, from 14 January 2013. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ABRAHAM J: 1 In United Firefighters' Union of Australia v United Firefighters' Union of Australia, Union of Employees, Queensland [2022] FCA 145, I determined, inter alia, an application pursuant to s 167 of the Fair Work (Registered Organisations) Act 2009 (Cth) brought by the United Firefighters' Union of Australia (UFUA or Federal Union) in relation to four firefighters seeking declarations of membership of the Federal Union. Although the originating application sought declarations reflecting that each of the firefighters are, and have been, members of the Federal Union since 30 April 2013, in closing submissions the applicant contended that it sought declarations as to "continuous and unbroken membership": at [74]. 2 If I was satisfied that declarations ought to be made, the United Firefighters' Union of Australia, Union of Employees, Queensland (UFUQ or State Union) contended they ought to only be made from the date of making the declaration, and not be retrospective. I did not accept that submission, but rather concluded that the declarations should reflect that the firefighters have been members since joining, and that their membership is continuous: at [134]. 3 I ordered that the parties provide chambers with draft declarations pursuant to s 167, consistent with my reasons for judgment. 4 A dispute has since arisen in respect to the date of membership in the draft declarations in relation to Mr Daniel Feeney and Mr Paul Hagger (although the latter only involves the difference of one month). There was no dispute in respect to the date of joining for the other two firefighters, being Mr Lam Pham and Mr Scott Neumann, which was in August 2010 and January 2013 respectively. As the parties accepted, the precise date of joining was not an issue in the hearing of the s 167 application. 5 In that context, and as described in more detail below, the parties were provided a further opportunity to address the issue.

Consideration 6 The applicant submitted that the operative date of the declaration should reflect the evidence of Mr Feeney. In contrast, the respondent submitted the operative date of the declaration should reflect [23] of the judgment which, relevantly, reflects the evidence of Ms Oliver. It was submitted by the applicant that Mr Feeney's evidence should be preferred as the dates reflected in Ms Oliver's affidavit of 8 February 2021 were inaccurate. It was suggested that she may have become confused between Mr Hagger's joining date and Mr Feeney's joining date and/or the date Mr Feeney signed a direct debit form in 2013 with the date he joined. It was also submitted that there was no basis in any event for rejecting Mr Feeney's evidence. 7 In his affidavit of 28 August 2020, Mr Feeney stated that he joined both the Federal Union and the State Union at the time of his induction, which was in May 2010. I note that Mr Feeney commenced employment with the Queensland Fire and Emergency Service (QFES) in May 2010. Mr Feeney gave evidence, and in cross-examination he was not challenged on either the date of joining or the date when he commenced employment with the QFES. 8 As explained above, the precise date of joining was not an issue in the hearing as all four firefighters relevantly joined the State Union and Federal Union using the double-sided form that was in use prior to July 2013: at [20]-[24]. The respondent ultimately accepted that when Mr Feeney and the other firefighters completed the double-sided membership form they intended to join both the Federal Union and the State Union. Mr Feeney completed the form, on his evidence, in May 2010. 9 Ms Angela Oliver, who was called by the respondent, provided evidence as to the membership register, which reflected that Mr Feeney's membership with the State Union commenced on 10 or 11 January 2013: at [23]. Ms Oliver expressed the view that she considered the date of 10 January 2013 was an error because Mr Feeney would have joined on his induction, which would not have occurred until 11 January 2013. Ms Oliver was not challenged as to her evidence of the dates she had provided as to Mr Feeney's membership with the State Union. 10 A copy of the double-sided membership application form completed by Mr Feeney, if it still exists, was not produced during the hearing of the s 167 application. As noted in the substantive reasons, Ms Oliver's evidence was that the hard copies of membership forms prior to July 2013 were stored in the basement of the offices of the State Union and Queensland Branch of the Federal Union which, as noted above, were flooded in 2011, likely destroying them: at [23]. 11 Ms Oliver gave some evidence of the membership register being modernised. The evidence is unclear as to when that happened, although it was likely in 2013, around the time that the membership form was changed (which was in July 2013). The date in Ms Oliver's affidavit is also reflective of the receipts of payment of membership dues annexed to her affidavit, which for Mr Feeney was between 2013 and 2020. The evidence was that the payment method for membership dues changed in 2013, with Mr Feeney giving evidence that he signed a form enabling credit card payments to be made in 2013. 12 In that context, a reference to the dates in Ms Oliver's affidavit at [23] of the judgment was a reference to the membership register and not a resolution of any dispute, or a rejection of Mr Feeney's evidence. 13 The significance of the precise date of membership for the purposes of this proceeding is entirely unclear. This is particularly so in a context where the original declaration sought by the Federal Union was to the effect that each of the firefighters were to be recognised as members from 30 April 2013 (only some three months or so after the date which Ms Oliver says was reflected on the register in respect to Mr Feeney). It follows that, at the time the application was filed, the applicant considered a declaration from that date to be sufficient for its purposes. 14 Given that this matter was not addressed during the hearing of the s 167 application (with the consequent unsatisfactory state of the evidence), and in light of the preceding paragraph, I raised with the parties the issue of a declaration recognising that Mr Feeney has continuously been a member of the Federal Union since he joined, being no later than 10 January 2013 (noting that the precise date was not in issue in the s 167 application and there is a conflict in the evidence). The respondent accepted that approach was appropriate. The applicant submitted that such a declaration in those terms does not reflect the reality of the situation. That submission seems somewhat curious given the terms of the declaration originally sought in the originating application. The applicant did not and it was conceded, could not, identify any significance in the date. Moreover, and as the applicant appropriately conceded, a declaration in these terms is not inconsistent with Mr Feeney's evidence. In those circumstances, it is unnecessary to resolve the factual dispute.

Conclusion 15 In the circumstances described above, noting that the precise date was not in issue in the s 167 application and there is a conflict in the evidence, it is appropriate to make the declaration in respect to Mr Feeney that he has continuously been a member of the Federal Union since he joined, being no later than 10 January 2013. 16 I also consider it appropriate to make the declaration in respect to Mr Hagger that he has continuously been a member of the Federal Union since he joined, being no later than 2 November 2001. This is in a context where Mr Hagger, in his affidavit of 29 August 2020, stated that he joined the State and Federal Union "around the same time that [he] commenced employment" (noting that Mr Hagger commenced employment with the QFES in October 2001), and Ms Oliver has him joining the State Union on 2 November 2001. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Abraham.

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