Legal: Decision clarifies what is a union, and what isn't
Queensland Teachers' Journal, Vol 126 No 7, 8 October 2021, page no.29
A recent decision in the Queensland Industrial Relations Commission could have serious implications for members of incorporated associations who have claimed they are trade unions.
The decision of Gilbert v Metro North Hospital Health Service & Ors  QIRC 255 held that the Nurses’ Professional Association of Queensland (NPAQ) is not an industrial association or trade union.
Importantly, the Teachers' Professional Association of Queensland (TPAQ) has a similar legal structure and many of the same personnel as NPAQ.
In his 90-page judgement, Vice President O’Connor of the Queensland Industrial Relations Commission (Commission) described NPAQ’s legal personality and corporate status as “inconsistent” with that of a trade union.
This decision removes any ambiguity as to the meaning of “industrial association” for the purposes of the Industrial Relations Act 2016 (IR Act) and reaffirms that to be an industrial association an organisation’s principal purpose must be the protection of employee interests.
The applicant, a duty nurse manager at the Prince Charles Hospital, was employed by Metro North Hospital and Health Service (Metro North). The applicant was also the Branch Secretary for NPAQ.
In January 2019, a memorandum entitled “Nurses’ Professional Association of Queensland Inc (NPAQ)” was issued by Queensland Health stating that NPAQ could not: be a party to an award or certified agreement; couldn’t represent the industrial interests of employees covered by the Nurses Award or certified agreement; didn’t have standing as a Union in a grievance or dispute resolution process; couldn’t display promotional material in the workplace that implied it could represent the industrial interests of employees; and couldn’t represent an employee in relation to employment matters.
In November 2019, The Sunday Mail published an article in which the applicant made a number of critical comments about nursing graduates and the nursing profession. In January 2020, the Executive Director of the Princes Charles Hospital, on behalf of Metro North, sent a show cause notice to the applicant, asking her to show cause as to why she should not be disciplined for making the comments without authority.
Instead of engaging in the show cause process, the applicant instead filed a general protections claim under the IR Act. The applicant also made ancillary claims under the Anti-Discrimination Act 1991 and the Human Rights Act 2019.
She alleged that the respondent had taken adverse action against her because she was an officer or member of NPAQ and because she had engaged in industrial activity on behalf of NPAQ.
The respondent argued the general protections claim could not succeed because the applicant did not have a workplace right or the protections claimed.
The applicant’s argument was dependent on the Commission finding that NPAQ was an “industrial association” for the purposes of the IR Act, being:
- an association of employees; and
- having as a principal purpose the protection and promotion of employees’ interests.
At  and , VP O’Connor held that NPAQ’s constitution established “something other than an organisation of employees” and that NPAQ “has a legal status independent of its members”.
As NPAQ was not an industrial association, the applicant could not establish that she had engaged in industrial activity for or on behalf of an industrial association.
The applicant also submitted that her activities, in representing and advocating on behalf of NPAQ members, meant that she had engaged in trade union activity.
The respondent argued that NPAQ did not fit the traditional idea of a trade union, by reference to the commercial structure of the NPAQ and its constitution.
VP O’Connor held that NPAQ’s legal personality and corporate status were inconsistent with a typical trade union, and its history was not typical of a trade union.
Because NPAQ was not a trade union, it therefore followed that the applicant could not have engaged in trade union activity on NPAQ’s behalf.
The applicant’s general protections claim was not accepted. The applicant’s ancillary claims were also rejected by the Commission.
This decision has serious consequences for associations with a similar structure to NPAQ, which are now unlikely to be recognised as unions or industrial associations by the Commission.