Legal: Unregistered “unions” to face penalties for misleading workers
Queensland Teachers' Journal, Vol 127 No 2, 11 March 2022, page no.27
The state government has accepted recommendations to amend the Industrial Relations Act 2016 to impose penalties on unregistered unions that misrepresent their status to workers.
The changes were proposed by former Queensland IR Commissioner John Thompson and former Attorney-General Linda Lavarch in the first review of the state’s IR Act.
The review references the “historical importance attached in Australia to an orderly system of industrial relations regulation” and submits that “there is no benefit from having some provisions that give recognition to the coverage of unregistered associations when they are not asked to fulfil the responsibilities that registered organisations must fulfil”.
Currently, the IR Act does not impose any reporting or governance requirements on associations (that is, on unregistered “unions”) such as the Teachers' Professional Association of Queensland (TPAQ).
In contrast, registered organisations like the Queensland Teachers' Union are subject to rigorous statutory, accountability and transparency requirements as a condition of their ongoing registration.
This is designed to protect the interests of members, as well as providing for transparency over the financial conduct of registered unions, including any political donations.
The legislative framework recognises these significant responsibilities by providing registered organisations like the QTU with exclusive rights to represent workers.
The review warns that in recent years unregistered bodies had sought to gain these benefits without taking on the responsibilities of registered unions, stating: “... another issue has been the apparent potential for unregistered bodies that have no capability or intention to seek registration to try to portray themselves as recognised unions within the IR Act — in effect, wanting some of the benefits but none of the responsibilities associated with registration.
“It is one thing for a group of workers in a poorly unionised area to try to organise themselves to negotiate collectively; it is quite another for an external body to seek to obtain some of the benefits of the system, without exposing themselves to the financial disclosure and auditing responsibilities normally associated with the system. The former group is deserving of the general protections for freedom of association; the latter group is not.”
The review notes some of the rights registered unions, such as the QTU, have.
- Bargaining for certified agreements – the legislation intends that collective bargaining can occur between employers and registered organisations.
- Modern awards – the legislation intends that parties to modern awards are limited to registered organisations, employers and employees.
- Workplace bullying – An unregistered association has no standing under the IR Act in relation to an application for a civil penalty order where an order to stop bullying is contravened.
The review goes on to identify the need for the Queensland Industrial Relations Commission to have the capacity to make orders preventing unregistered bodies from purporting to be able to represent employees under the act when they do not have this capability.
In addition, the review recommends financial penalties for unregistered organisations that misrepresent their right to represent employees within the system, or for otherwise misleading conduct.
The Palaszczuk government has accepted these recommendations in full. This is good news for teachers across Queensland who may be at risk of being led to believe they have the same representation and protections as QTU members, only to find out, often too late, that they do not.