Unregistered “fake” unions have increased their presence in Queensland and New South Wales,[1] and are actively supporting the anti-mandate movement in respect of COVID-19 vaccinations. These organisations are targeting new members in the nursing, teaching and law enforcement industries.

Most (if not all) of these organisations have been established as corporations. This means that the organisations cannot be registered as unions in Queensland (or in the Federal system) as an employee union must be established as an association to be capable of registration. By contrast, an employer union that is established as a corporation can be registered as a union.

These unregistered organisations fall into a ‘grey zone’ for employers. This is because industrial action by their members is not ‘protected’ for the purposes of the adverse action provisions of the Industrial Relations Act 2016 (Qld) (‘IR Act’). However, these activities may attract other protections under the adverse action provisions of the IR Act, or under other legislation.

The issue was considered by the Queensland Industrial Relations Commission (‘Commission‘) in Gilbert v Metro North Hospital Health Service [2021] QIRC 255.

Background

The Applicant, Margaret Gilbert, was employed by the State of Queensland as a nurse at the Prince Charles Hospital, Brisbane. Ms Gilbert was appointed Branch Secretary, Nurses Professional Association of Queensland (‘NPAQ’), about October 2018. NPAQ represents itself as being a cheaper, independent, alternative to a registered union.

In March 2019, the Department of Health issued a Memorandum to staff (including Ms Gilbert) in relation to NPAQ (‘Memo’). The Memo provided that NPAQ:

• was not entitled to be a party to an award or certified agreement made between Queensland Health and its employees;
• was not able to represent the industrial interests of employees covered by relevant workplace instruments;
• did not have standing to be a union party in any grievance / dispute resolution process;
• was not permitted to display material in the workplace that implied it is entitled to represent the industrial interests of employees; and
• could not represent or advocate on behalf of an employee in relation to employment matters.

In November 2019, the Sunday Mail published an article that quoted Ms Gilbert as making critical comments about nursing graduates and the nursing profession generally and identified her as a nurse at the Prince Charles Hospital.

Ms Gilbert did not seek authority or permission from her employer to participate in the Sunday Mail article, and her comments were deemed to be in breach of the Code of Conduct.

In January 2020, Ms Gilbert was issued a notice to show cause why she should not be disciplined for making the comments without authority (‘Show Cause’).

Ms Gilbert lodged a claim with the Commission in which she alleged that the issuing of both the Memo and the Show Cause contravened the general protections provisions of the IR Act. Ms Gilbert made ancillary claims under the (‘AD Act’) and the (‘HR Act’).

Decision

Vice President Daniel O’Connor dismissed Ms Gilbert’s application. In doing so, he relevantly considered the following issues.

Is NPAQ an “industrial association” under the IR Act?

Ms Gilbert alleged that she was subject to adverse action because of her activities as an officer or member of an “industrial association”.

Section 279 of the IR Act provides that a union is an association of employees having, as a principal purpose, the protection and promotion of their interests in matters concerning their employment. The terms “association”, “industrial association” and “industrial activity” are all defined in the IR Act.

The Commission found that NPAQ was not an association of employees, but rather, was an incorporated association under the Associations Interpretation Act 1981 (QLD) (‘AI Act’) and had a legal status independent of its members.

Is NPAQ a “trade union”?

Ms Gilbert argued that although NPAQ was not registered as an employee association for the purposes of the IR Act, it was “in fact an organisation in the nature of a trade union”. On that basis, Ms Gilbert alleged that she has been discriminated against for “trade union” activity for the purposes of s.295 of the IR Act.

The term “trade union” is not defined in the IR Act. In determining that NPAQ was not a “trade union”, the Commission took into consideration various factors including as follows:

• the term “trade union” does not mean an entity with some distinct corporate personality from that of its individual members;
• NPAQ had agreed that the objects of the Association as set out in its Constitution did not include any intention to form a trade union, to negotiate and enter into enterprise agreements, or to seek and maintain registration as an industrial association under the IR Act or any legislation; and
• NPAQ was an incorporated association with a distinct legal personality, which is consistent with a typical “trade union”. It was noted that the business names ‘Nurses Professional Association of Queensland’ and ‘NPAQ’ were only referred to after the events, the subject to these proceedings.

It followed that Ms Gilbert could not have engaged in “trade union activity” on NPAQ’s behalf within the meaning of s.295 of the IR Act.

Did the Show Cause amount to discrimination or adverse action?

In relation to the Show Cause, Ms Gilbert raised allegations of unlawful discrimination and adverse action. Both contentions were unsuccessful as follows.

Firstly, Ms Gilbert alleged that the issuing of the Show Cause amounted to unlawful discrimination for the purposes of s.295 of the IR Act, which proscribes adverse action from being taken because of a protected attribute (including “trade union activity”).

However, the Commission held that Ms Gilbert had failed to establish that she had been engaged in a “trade union” activity (which is not a defined term in either the IR Act or the AD Act). Furthermore, she could not establish that another person without the attribute would not have been issued a Show Cause in circumstances where they had breached the Code of Conduct.

Secondly, Ms Gilbert submitted that the Show Cause was defective and that it constituted unlawful adverse action, on the basis that she engaged in “industrial activities”.

In finding against Ms Gilbert, the Commission held that (pursuant to s.282(6) of the IR Act), adverse action does not include action that is authorised under the IR Act or any other law of the State or a law of the Commonwealth. As the Show Cause was a step the Respondent was required to take before exercising power afforded to it under s.187(1) of the Public Service Act 2008 (Qld), it was “authorised” under the law of the State.

Did the Memo constitute adverse action or misrepresentation?

Broadly stated, Ms Gilbert submitted that the Memo constituted adverse action against her, because it stated she would be liable to disciplinary action if she failed to comply with its terms in relation to NPAQ. Ms Gilbert further alleged that the Memo supported a conclusion that the Respondents had knowingly or recklessly misinterpreted her right to be represented by her chosen industrial association (NPAQ) in contravention of the IR Act.

The Commission held that whilst the Memo did stipulate the activities in which NPAQ may not engage, the contents of the Memo were (in context) aligned with the IR Act and did not amount to adverse action or misrepresentation.

Was the Respondent in breach of the Human Rights Act?

Ms Gilbert argued that the Respondents had attempted to stop her expressing her views on matters concerned with trade union activity, and accordingly, had breached her right to freedom of expression and freedom of association under the HR Act.

In determining that Ms Gilbert’s human rights had not been breached, the Commission noted that the Respondents were concerned with Ms Gilbert’s breach of the Code of Conduct and did not seek to limit her from otherwise expressing her views.

The Commission also referred to the proportionality principal articulated under s.13 of the HR Act, which provides that a human right may be subject to “reasonable limits that can be demonstrably justified in a free and democratic society”.

Takeaways for Employers

It is expected that the prevalence of unregistered “fake” unions will continue to grow over the coming months as the debate regarding mandated COVID-19 vaccinations continues. Accordingly, it is important for employers to be aware of their rights and obligations when dealing with these organisations.

In particular, employers will need to be aware of:

• the risks associated with dealing with unregistered unions, which are often unknown third-party organisations;
• their risks and obligations with regard to notifying employees of their rights (and any limitations) in respect of their activities as a member of an unregistered union;
• their obligations to unregistered unions (particularly with regard to right of entry obligations, health and safety consultation, and during the enterprise bargaining process);
• their rights to challenge applications made by unregistered unions on behalf of employees, where there is no established right to do so.

If you have any questions regarding the above, contact Aitken Legal to speak with an experienced Employment Lawyer.

[1] Earlier this month, two organisations (acting as unregistered employee unions) were incorporated in NSW and promptly joined a legal challenge to the State’s vaccination mandate for health workers, in John Edward Larter v The Honourable Brad Hazzard MP, Minister for Health and Medical Research.