May depaNews

The announcement by the NSW Treasurer and Minister for Local Government on 26 April of $112.5 million to match the Federal Government’s JobKeeper program may have missed the publicity it deserved but it was a revelation for the industry with a cautious optimism about how councils would qualify. It was provided to complement and work alongside the Splinter Award and was a sign that if local government needed financial support, the State Government would provide it.

A lot of councils are desperate for a cash injection to keep services going but it’s clear that the requirements attached to JobKeeper don’t necessarily open the doors to financial assistance for councils. The Government needs to move quickly to announce how the money will be available and the funding needs to be significant and universal.

As this issue of depaNews is published, we’re not aware of any Council confident it will get enough of the $112.5 million and there are lots of GMs pessimistic about getting any.  Neither have we heard, after the first flush when Sutherland dumped casuals from Council services closed by State government proclamation, of anyone stood down in the industry drawing upon the Splinter Award for income maintenance.

We’re all geared up ready, optimistic for easier access to the drastically needed funding to keep services flowing as the restrictions start to come off.

The good news is that the industry has almost universally accepted that it is an essential service and that even those employees who can’t be given useful work in their normal jobs can be transferred across to other areas of the Council’s operations where they can. This has meant, as far as we are aware, continuing employment despite councils encouraging employees to take leave at short notice, or even to start working shorter work weeks.

Next month we should have a better picture of how the money flows and whether the industry has managed to continue to protect the normal levels of employment.

In related news, on 12 May the NSW Parliament is scheduled to consider two important initiatives as part of a COVID-19 Emergency Measures Bill – titled COVID-19 Legislation Amendment (Emergency Measures) Bill (No 2) 2020 NSW.

The first, which is not before time, is found in Schedule 3 Amendment of other legislation where at 3.1 Annual Holidays Act 1944 No 31, the government proposes to allow cashing out annually of annual leave, with protections, and extending the opportunity for long service leave to be taken at half pay or full pay by agreement with the council, to accumulated annual leave.

It will be about bloody time, LGNSW and the unions have been pursuing governments for about fifteen years to allow half pay or double pay for annual leave but both the cashing out, and the double pay will only be available for two weeks of every twelve months. While employees will have more options than they do now, they don’t go anywhere near far enough. Double pay annual leave by agreement will fund superb holidays and other things and dramatically reduce annual leave accumulations at those councils which have failed to properly manage it over the years.

And the second, which seems like a grossly unacceptable restriction on local government’s authority, imposes a limit on expenditure on council administrative buildings above $1 million for the next two years, unless it’s an emergency or maintenance. Cramped, unsuitable accommodation is typical in local government and councils should not be prevented from doing things to provide suitable accommodation for staff to get the job done properly.

And we’re absolutely convinced that one of the reasons Cumberland keeps crying poor and asking staff to sacrifice and forfeit entitlements is that they run two administrative centres from the olden days of Holroyd and Auburn when they’d be much better off in one. And they could stop harassing staff by passing the hat around.

Finally, the Splinter Award has now been varied twice since it was made and there are now only Balranald, Blayney, Broken Hill, Eurobodalla, Georges River, Kyogle, Lake Macquarie, Maitland, Murray River, Northern Beaches, Richmond Valley, Strathfield and Wollongong not parties to it. Goulburn-Mulwarree is not a party but has a more beneficial Council Agreement with the unions.

The last time LG Professionals (sic) or as we like to call them, Local Government Poseurs, thought they should get themselves involved in employment and industrial issues did them no favours at all. Not sure at the time whether they were an employer organisation looking after the interests of the boss or trying to be an employee organisation looking after the interests of employees, they retired hurt.

But, LG Poseurs supremo, Narrabri GM Stewart Todd, has now launched an initiative to press GMs and CEOs to forfeit their annual pay increase under the standard contract.

The standard contract provides that senior staff annual pay increases are determined by the NSW Government’s Statutory and Other Offices Remuneration Tribunal like senior executives in the State Public Sector. There is also an opportunity for an annual increase for performance or other reasons.

But the President of LGP confidentially wrote to all GMs and CEOs (whether they were members or not) on 22 April claiming there was a ground swell that:

“Senior Officers, not subject to the Award, should ideally have some consistent and agreed to position. I have been approached by a number of metropolitan and regional General Managers/CEOs who strongly believe that in this COVID-19 climate and as leaders of our respective councils, there should be a wage freeze for senior staff. Given that we apply the NSW Remuneration Tribunal’s SOORT determinations, there has been a lot of reorientations(sic) that collectively we should agree to apply a zero increase for Senior Staff for twelve months, owning it and leading it.”

And that LGP could act on their behalf, you know, just like a union would.

“we are also no different from (sic) our community members when it comes to an expectation for a wage freeze at this time. Again I have had strong representations that this is the right thing to do, and what we should proactively do rather than in reaction to us doing nothing, and of course it would be better if we were united in an approach to this issue.”

Go, Comrade! That’s the way a union operates.

Sadly for the heroes of LGP, owning it and leading it wasn’t embraced wildly by the GMs and CEOs, and of the 93 votes recorded (remember there are 128 Councils), there were only 57 in favour - well short of a majority and effectively just over 40% of all GM’s. And if they intended no senior staff to get an annual increase this year, they should have asked other senior staff as well...

A bit presumptuous really but the President was big enough to acknowledge “there are also those that (sic) shunned the survey and were quite negative about the association even asking the question”. Yes, we agree, get back to doing what you do best...

The Final report of the NSW Legislative Council’s Public Accountability Committee Regulation of building standards, building quality and building disputes has been handed down and here is a link.

The Report contains significant recommendations addressing building certification and encourages the NSW Government “as a matter of urgency to provide the NSW Building Commissioner with new powers to ensure building standards”.

Significantly for us, the Chair observes in the foreword:  

“this report also focuses on the concerns surrounding private certification. It is clear that the experiment of the last 20 years of private certification has not worked. Many participants and stakeholders told the committee that the conflicts of interest inherent with private certification were not able to be remedied. They pointed to years of attempted reforms that so far have failed to restore confidence or integrity in the system of private certification. Others suggested that it was possible to conceive of further reforms to make the system work better. Whilst it is clear that the status quo is broken, and that public control of certification needs to be strengthened, the Committee did not at this stage recommend building certification revert back to local councils. The committee has instead recommended that this proposal be considered in a further inquiry we plan to establish at the end of 2020 to continue to review the NSW Government’s reforms into the building and construction industry.”

Recommendation 17 proposes “the Legislative Council’s Public Accountability Committee as part of its foreshadowed inquiry to review the NSW Government’s reforms into the building and construction industry and consider as one of its terms of reference the strengthening of public control of certification, such as returning certification to local councils.”

Recommendation 18 proposes implementing the recommendations, where practical, put forward in the report by Mr Michael Lambert “to improve the certification system as soon as possible and no later than within two years” and recommendation 19 includes the observations about considering returning building certification to councils as quoted above from the Chair’s foreword.

In our 17 February issue we reported an acknowledgement by the BPB that we had “identified an unintended problem with the current provisions of the Building and Development Certifiers Act 2018”.

This was an “inadvertent” arrangement that would mean Ordinance 4 building surveyors working doing certifying in councils could no longer do so using their existing qualifications.

The advice from the BPB was that this unintended problem would be addressed in the new Building and Development Certifiers Regulation, and it has been.

There is now a “grandparenting” provision for all people who hold accreditation immediately before the rescission of the Building Professionals Act. Clause 23 of Schedule 2 of the Building and Development Certifiers Regulation 2020 provides:

23   Additional pathway—all classes of registration

(1)  In addition to any other pathway set out in this Schedule, a person has the qualifications and experience required to be granted registration in a particular class if—

(a)  immediately before the repeal of the Building Professionals Act 2005, the person held a certificate of accreditation in a category that corresponds to that class of registration, and

(b)  the person has held a certificate of registration in that class continuously since that repeal with no period since the repeal during which the person was not registered that is longer than 3 months or such longer period as the Secretary may allow in a particular case.

(2)  For the purposes of this clause, clause 4 of Schedule 1 specifies which class of registration corresponds with a category of accreditation.

While we’ve all been isolated, working from home, taking leave or whatever, it’s been better than business as usual for development and construction. There have been a few positive effects from the pandemic, reduced traffic, no one much getting traditional flu because of social distancing, clear skies, clean water and even a chance to meet our Paris emissions targets.

But proposals by the NSW Government to ease restrictions on construction on weekends and development restrictions won’t be one of those positive effects.

Here is a link to an opinion piece by the inestimable Elizabeth Farrelly in the SMH on 25 April 2020. No one ever says it better.

The State Award is invariably made late in June for three years and operating from 1 July. We are all used to the idea of pay increases from the first pay period after 1 July and, as we get perilously close to needing to get a final document together, there are significant “in principle” agreed changes already, and only really two issues to finalise.

The USU in September last year convened a roundtable in Parliament House, opened by the Minister for Local Government, and involving everyone with an interest in bullying and mental health in the industry - LGNSW, the unions, workers compensation insurers, Local Government Superannuation, the Office of Local Government etc. Everyone got on board philosophically with the need to dramatically address what was acknowledged to be a widespread problem in the industry.

Unlike the Fair Work Act, the NSW Industrial Relations Act 1996 does not have specific provisions about bullying and the capacity for employees to seek orders preventing bullying. And it seems remiss, in this climate of a greater recognition across the industry, that the State Award doesn’t specifically address bullying either.

We are working on appropriate wording to provide protections for employees in the industry from this pernicious and difficult to manage phenomenon. Bullying can damage employees’ lives just as much as physical accidents and injuries.

And the second issue, is money. Just as there are GMs around the place looking at forfeiting their 2020 pay increases, and thinking that others should do so as well, that influence is being felt by LGNSW when we look at what sort of pay increase there should be from 1 July.

The complication of agreeing to take a fall on salary increases (which are really only economic adjustments catching up for cost increases over the preceding twelve months) in the interests of continuing people in jobs is that money not spent on pay increases isn’t then automatically spent keeping people in work.

And we know of many councils where any savings are just as likely to find their way into improve catering for councillors, and other less worthy spending.

More news, next month.