Margaret Gilbert, president of the Nurses Professional Association of Queensland (NPAQ), is facing the possibility of losing her position at a hospital following an unsuccessful appeal in the Queensland Industrial Court. The court determined that her unauthorised media statements were not protected under industrial activity provisions.
Deputy President Catherine Hartigan's ruling clarified the distinctions between an industrial association and a trade union. The court concluded that the NPAQ did not meet the legal definitions of either entity, allowing Queensland Health to lawfully issue a "show cause" notice to Gilbert in response to her media comments.
This ruling aligns with an earlier mid-2021 decision by the Queensland Industrial Relations Commission (IRC). Deputy President Hartigan pointed out that it would be unreasonable to allow an unregistered organisation like the NPAQ, which has a separate corporate and legal identity, to benefit from the protections intended for registered organisations under Queensland's Industrial Relations (IR) Act without bearing the associated responsibilities.
The IR Act defines an industrial association as either an employee organisation or an association of employees. An employee organisation must be registered under the Act, which the NPAQ is not. Moreover, an "association of employees" refers to a collective of workers who join forces to protect and advance their workplace interests, explicitly excluding incorporated entities like the NPAQ.
Deputy President Hartigan noted, "It is inconsistent to consider an incorporated organisation as an 'association of employees' within the meaning of the IR Act." She emphasised that registered organisations gain specific rights and responsibilities through their registration, a status the NPAQ does not hold.
As a result, the NPAQ cannot be classified as an "association of employees," and Gilbert's activities do not qualify as protected industrial activity under section 290 of the IR Act.
Additionally, the court addressed Gilbert's argument that the NPAQ should be considered a trade union and that she engaged in trade union activities. While not being a registered employee organisation does not automatically disqualify a group from being a trade union, the NPAQ's status as an incorporated association and its focus on professional representation, rather than workplace advocacy, were found to be inconsistent with trade union characteristics.
Gilbert also contended that Queensland Health infringed upon her rights to freedom of expression and association. However, Deputy President Hartigan concluded that since the NPAQ is not a trade union and Gilbert did not engage in trade union activities, her specified human rights were not applicable in this case.
With the appeal dismissed, Gilbert now faces potential dismissal from her hospital role. This case underscores the importance of understanding the legal distinctions and requirements for industrial associations and trade unions in the context of workplace rights and protections.
The case attracted further attention when Deputy President Hartigan took over from Justice Peter Davis, who recused himself due to potential bias concerns related to a letter he sent to the Industrial Relations Minister about regulating unregistered unions.
The outcome of Gilbert v Metro North Health and Hospital Service and Ors (No. 2) [2023] ICQ 020 highlights the intricacies of industrial relations law and the critical distinctions between registered and unregistered organisations in Australia.
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