depaNews July 2014

IRC President Michael Walton

It’s not unusual for the IRC to acknowledge the significance of agreement from complicated and intricate negotiations and the President of the IRC Justice Michael Walton on 16 July handed down his Reasons for Decision, identifying the real achievements of the complex negotiations that led to the making of the 2014 Award on 25 June.

We thought there were significant achievements in the Award – general improvements in conditions, clarification of things that may have been unclear to make life easier and no loss of anything, plus: increased obligations on councils to facilitate and implement flexible arrangements for employees’ family needs; better provisions on adoption leave; access to sick leave for family reunions for stolen children and other closed adoptions; an acknowledgement of the importance of health and wellbeing by providing access to sick leave for preventative health and fitness measures; a discretion for councils to provide half pay sick leave in extenuating circumstances of chronically ill or injured employees; and many more.
 
Amongst other things, the President said this:

The award established conditions of employment which struck an appropriate balance between the provision of fair conditions of employment and the maintenance of an industry which is economically sustainable and meeting its core objectives. The public interest is served by this approach because the significant contribution that the Local Government industry makes to the community of New South Wales will be enhanced by a harmonious industrial environment and the maintenance of a vibrant and stable Local Government sector.

The Award represents the latest in a succession of consent awards made in the industry since 1992. This outcome is a reflection of the maturity and sophistication of the industrial parties and their capacity to reach agreement in circumstances involving complex negotiations across an industry which is diverse in nature.

The combination of these considerations represented an overwhelming basis for the grant of the amended application and should result in congratulations being extended to the industrial parties to the award for this significant achievement.
 
So, everyone was happy, we’re mature and sophisticated, it was a significant achievement, and we can now start building on these improvements.

But, not everyone was happy …

The only dissident in the exercise was the Local Government Poseurs Association which, even though not registered as either an employer organisation or an employee organisation, likes to dabble every now in both roles and again, like a true dilettante, does both badly.

Starting out as the old Town Clerks Society, then the Institute of Municipal Management, then the Local Government Managers Association and now, Local Government Professionals Association - a name which pinches “Professionals” from the name we’ve had for a decade, also pinches the same word from “Professionals Australia”, the Federal name of the LGEA but, more importantly misrepresents its role with the sole purpose of sucking in professionals.

They offer networking and training but really relish the opportunity of acting like a narky 1950’s bosses’ organisation, ignorant of the processes of negotiation and uncomprehending of the nuances and intricacies of the Industrial Relations Act.

Their new interest in professionals unfortunately doesn’t extend to the employment conditions or salaries of professionals, whether at low levels or managerial levels, as they regularly demonstrate.

They had their chance to represent employee interests when involved in the Senior Staff Contracts Working Party last year but their representatives failed to look after the interests of senior staff as employees. They opposed the paying of cash bonuses, the removal of the term requirement altogether and the proper extension of the minimum notice period.

When they sat down to develop the first Standard Contract with the LGNSW and the DLG, they weren’t really sure what role they were playing. Still, desperate for recognition and flattered by being invited to sit down with public servants of the Crown with far better protection and entitlements and the LGSA (which really is the employers’ organisation and does do mature and sophisticated) they were unrestrained by their ignorance.

Away they went, allowing the DLG to then claim employees affected by the contracts were represented, and ultimately bearing responsibility for the rigidity and unacceptability of that first Standard Contract and the continued capacity of a Council to sack good general managers as well as bad. Thanks for that. It’s beyond argument that more good general managers get sacked under the “for any other reason” provisions than bad ones for any reason.

While the President of the IRC can acknowledge the significance of the harmonious industrial relations evident in the final agreement that came from 150 varied and diverse claims, LGPA, by resolution of their Board, intervened in the relationship between employer organisations and employee organisations wanting a harder line.

LGPA President Paul Bennet wrote to the President of LGNSW on 29 April (demonstrating his own professionalism by spelling his name wrong – hey Paul, its Keith, not Keth) and then later, with their CEO as a co-signatory, to the Manager of Employee Relations - two hysterical letters with multiple factual errors (especially the first one) and levels of shock and horror rarely seen in local government correspondence.

There were three things that they wanted to derail.

The first was a proposal in the negotiations to ensure that if councils set up employment arrangements, the employees concerned remained covered by the State Award. This was one of the original claims made but they claimed it was “lodged at the last minute” which was completely untrue. They argued in favour of Councils being able to set up other arrangements to pay less than the State Award and to provide worse conditions. Nice. Given that this claim, which did find its way into the final Award, would protect employees if a number of councils set up planners or EHOs, for example, to work across a number of council areas, we are entitled to challenge their commitment to the interests of professionals.

They opposed a provision restricting labour hire to encourage proper employment conditions in the industry but they revealed the depth of their misanthropy by opposing the provision to allow a Council to provide sick leave at half pay under “extenuating circumstances” - namely for the chronically ill or injured and dying.

The letter was ill-informed, ignorant of century-long processes developed in New South Wales for industrial relations and foresaw horrific consequences. The letter, signed by CEO Annalisa Haskell and President Paul Bennett claimed “the implications for the sector are significant and precedents are potentially nasty”, for a start. Nasty? Nothing much nasty about protecting pay and conditions.

The image from the Wizard of Oz is perfect - the cowardly lion, the tin man with no heart and the scarecrow with no brain - cowardly, heartless and brainless. That will always be LGMA/LGPA for us.

Beware.

The 2014 State Award provides two significant improvements for working parents that coincide with publication by the Australian Human Rights Commission of their Supporting Working Parents: Pregnancy and Return to Work National Review.

On a weekly basis we provide advice to members dealing with councils reluctant to embrace the flexibility provided in the Award for parents returning to work - particularly mothers. It seems extraordinary that we would need to do so but two improvements in the 2014 Award will make it harder for councils to ignore their obligations.

First, the 2010 Award acknowledged the intention of the parties to the Award to “ensure flexibility for work and family responsibilities” but at many councils this didn’t happen. The 2014 Award has taken this commitment further with the addition of two simple words, with the Award now requiring that they facilitate these arrangements as well. The Award now commits the parties to the Award to “ensure and facilitate the flexibility for work and family responsibilities”, so unsympathetic, unsupportive or even hostile Councils really will have to do something.

Second, clause 22 Flexibility for Work and Family Responsibilities now provides this new wording:

“In recognition of the commitment to provide flexibility for work and family responsibilities and the need to retain skills and experience within the industry, employers are encouraged to develop and promote flexible work and leave arrangements to enable their employees to better manage their work and family responsibilities”.

We are already familiar with snide observations from supervisors and managers about accommodating what they see to be unrealistic or unreasonable requests; negativity from the same managers or supervisors when the Council’s own policy document encourages “your positive attitude towards flexible work arrangements is essential”; the reliance on obsolete policies which pre-date the Fair Work Act and its absolute requirements to respond positively to flexible working arrangements; dawdling and ignoring reasonable timeframes; expecting child care arrangements are easily found and almost instantly changed; smug reliance on assertions that the flexible working hours policy doesn’t operate concurrently with the working from home policy (even though neither policy specifies this); ignorant assertions that flexible arrangements are not available for “long-term dependent care” when the policy doesn’t mention childcare or parental responsibilities but focuses only on caring for the ill or injured - and where the Fair Work Act and the Award require otherwise; responding to a request by proposing a 50% reduction in working hours instead, with the loss of the leaseback car; arguing that working from home arrangements are not there to accommodate childcare responsibilities even though other employees at work are doing precisely that; and demanding special requirements for working parents to keep appropriate credits in their flexitime, when that doesn’t apply to people who aren’t parents; and, part-time working arrangements that require a capacity, without reasonable notice, to be available for weekend work.

And all of this while the Council boasts its commitment to doing the right thing. A glossy booklet with the General Manager smiling with the caption “A great place to work …” that promises flexibility in attracting and retaining quality staff and flexible work environments that help all staff to balance their work, family and other responsibilities, but which are clearly more honoured in their breach than their observation. And so far, we’re only talking about Penrith.

We will tell you more about Penrith in subsequent issues as we move them into 2014.

While Australia falls well below the arrangements for employing women with young children in OECD countries, less attention has been paid to making employers provide more flexible arrangements for working parents. The Australian Human Rights Commission’s Report found that much needs to be done to make workplaces more welcoming for mothers and fathers returning from parental leave, and to prevent discrimination.

The Report found that 49% of mothers had experienced discrimination during pregnancy, parental leave and their return to work, 32% suffered discrimination requesting or taking parental leave and 34% in dealing with their family responsibilities. These figures seem consistent with our experience.

In addition to the protections available in the State Award, progressive National Employment Standards are incorporated in clause 21F Parental Leave (General) and 21G Requests for Flexible Working Arrangements. Some councils still don’t understand this.

The Report also found amongst employers “confusion and uncertainty about their legal obligations, and about employee rights”. We are always happy to help the confused and the uncertain.

If you are having issues of discrimination at work because of your family responsibilities, let us know.

And if you are making a request for flexible working arrangements, here is a link to your rights through the State Award and the Fair Work Act 2009.

Clause 24 Health and Wellbeing is a new provision that apart from providing encouragement to councils to develop workplace health and/or wellbeing programs, allows councils to agree to provide up to 2 days paid leave each calendar year from employees’ accrued sick leave to participate in a health and/or well-being activity.

This is subject to some considerations but the critical issue is that there is a discretion for each Council to opt in, or opt out of the option, to provide the additional leave.

What’s your Council doing? This was one of our claims and we would like to keep a record of which Council is providing this as an option as part of its commitment to looking after the health and well-being of its staff - and those councils deciding to do otherwise.

We’ve already seen one draft policy from Penrith (Penrith just can’t seem to do the right thing at all these days) which proposes to restrict the provision to “medical appointments or medical treatments/screenings by medical/health practitioner”. This frustrates the intention of the clause and directs it away from fitness, healthy lifestyle activities, general exercise programs and their establishment with a trainer or in a gym and a whole range of other activities that will contribute to the well-being of an employee.

Penrith won’t be the only Council trying this on (let’s hope the employee representatives on the Consultative Committee rejects this) and we would like to know who and which Council is trying to frustrate the intention of this clause. Is it just indolent or lazy HR people or others higher up?

Please let us know. Would also like to know those councils which are embracing it and trying to do the right thing by their staff. It’s not all about bad news.

Like finding a Japanese soldier on some obscure island in the Pacific, who still thinks he’s fighting the Second World War, we have found a council that looks like it didn’t properly grade its senior health and building surveyors (as they used to be known in the Health Surveyors State Award) way back in 1992.

Everywhere else (until we discovered Taree and Hastings a couple of years ago and fixed them) has had seniors as band 3 level 3 since 1992. So how does it happen that Shoalhaven have them at 3/2?

The systemic and chronic rorting of job evaluation at Shoalhaven was exposed in their current restructure. This was a process where, not only did they breach their obligations under the State Award to advise employees affected and the union to which they belong, but it was only when they tried to jam existing “seniors” into even bigger jobs, with even more staff, and still at 3/2 and no more money that the whole questionable system started to unwind.

We filed an industrial dispute which has been before the Commission on five occasions. On the first occasion the USU and the LGEA wanted to intervene because they had concerns about the process as well and this was contested by the Council - asserting that this was really only about the evaluation of one position when the dispute notification made it abundantly clear it was about much, much more. They lost that argument. We welcome the other unions. That’s 1 nil.

In the dispute proceedings Council agreed to re-evaluate the team leader jobs using 00Soft (the old Wyatt) and we then discovered they were using version 19, the 1993 version that was made obsolete when it was superseded by version 20 in 1995. Version 20 provides more reliable evaluation consistent with the skill descriptors in the Award – particularly in the professional area. As part of the dispute, despite their original defence of the superseded obsolete system, the Council has agreed to transition to version 20 from 1 January 2015. That’s 2 nil.

Council was adamant they had properly evaluated these positions (as a general rule, councils never admit to rorting or fiddling the system) but the re-evaluation found that the positions really were 3/3. Council then had to agree that the positions would be 3/3 because it was their idea that we’d sit down and go through the evaluation. That’s 3 nil.

The upgrading led to a redundancy for one of our long-standing members John Britton (well done John and enjoy your retirement) and may well provide another. I think we can count that as 4 nil.

Then two members were offered the Team Leader positions but under the condition that access to a leaseback car would be “discretionary” and not a continuation of the condition of employment cars they had enjoyed in their current positions. This was subsequently claimed to have been a mistake, but the realisation this was a mistake was very slow in coming and while they were wondering whether it was a whether it wasn’t, they kept asserting locally that they are entitled to do this. That’s 5 nil.

And we discovered other employees who had a car as a condition of employment, when offered promotional positions, have been asked to sign away their condition of employment car for a car that can be removed with six months’ notice.

Group Director Tim Fletcher and a movable feast of HR functionaries are up to their eyeballs in this fiasco. GM Russ Pigg delegates things down the organisation so, ironically at least, he can devote some time to going along and present at a convention of the Local Government Poseurs Association about “Transformational Change – The Shoalhaven Story”. Oh Russ, you are such a wag! You have to admire self-deprecating humour. That’s a story that should be R rated.

The Council has a pay policy which prevents employees, concerned about the accuracy of the evaluation of their position, asking for the position to be re-evaluated unless there have been “significant changes” to the position. This sort of provision sets the rorted level in concrete. But on the last occasion this was argued out in the Commission, the Council agreed to re-evaluate positions of those members who wanted their positions re- valuated given the new understanding about the appropriate level for Team Leader positions. That’s 6 nil.

They also agreed to provide a list of those employees who may have been asked to sign a letter of offer including a discretionary car - something that they had refused to do before. So, that’s 7 nil.

And on every single issue, the Council dawdles, obfuscates and then precious and sensitive people in management get distressed about the tone of emails the union sends to its members. Poor little loves.

In particular, they didn’t like us saying this:

• rorting the job evaluation system to keep positions out of 3/3

• we’ve sprung them and remedied the issue

• chronic rorting of job evaluation, trying to forcibly redeploy people into positions without giving the opportunity of taking a redundancy

• for trying to cheat (two members’ names deleted) out of their rights to a car and being sprung

• and robbing who knows how many people of their rights to a condition of employment car in taking another promotional position.

Funny, they never objected on any of the occasions when precisely that sort of language was used in the Commission. What do you think? If it looks like a duck and quacks like a duck, it’s a duck.

Shoalhaven has made itself an unbackable favourite. The award can sit alongside the GM’s Certificate of Appreciation from LGPA for his “Transformational Change- The Shoalhaven Story” presentation.

The shortcomings of the private certification system continue.

The ACT Auditor-General Maxine Cooper has conducted an investigation into development assessments and made observations about “potentially improper” relationships between builders and certifiers. Oh no, another “we told you so” moment.

“Dr Cooper has called for more auditing of certifiers’ decisions, more training for certifiers and a public register of demerit points against them”, according to an article in the Sydney Morning Herald by authoritative local government editor Harvey Grennan on 22 July. The Herald reports that the Auditor-General’s office conducted seven case studies and “found that two dwellings should have been subject to a full development application and three others gave rise to consideration of disciplinary action against certifiers.”

Dr Cooper criticised the inadequacy of penalties against certifiers and prominent authority on construction liability and certification, Kim Lovegrove, Melbourne solicitor and partner in a building and planning law firm Lovegrove Smith and Cotton, observed that “the Auditor-General has hit on a number of serious issues which extend beyond ACT borders.”

“Last year my colleague Stephen Smith called for a number of reforms to private certification more generally, including not only mandatory auditing and continuing professional development for certifiers, independent peer review, more oversight powers and higher penalties but also a regulated floor on certifier fees to ensure these cannot drop to a level which would compromise professional standards”, Professor Lovegrove said.

The Herald observes “the Canberra findings mirror some of those of the NSW Independent Pricing and Regulatory Tribunal in a draft report on local government compliance and enforcement released in May. This found inadequate penalties being imposed. Disciplinary action was taken against only 1% of all accredited certifiers and 0.1% received more than a fine and a reprimand. No action was taken on 72% of all complaints.”

There have been no adverse findings against accredited council employees.