November depaNews

It’s now more than twelve months since the LGNSW Board resolved to create consensus with the unions about protecting senior staff and bringing them under the Award. It took a long time for the Office of Local Government to move, to develop a Discussion Paper, to put it out for consultation in the industry for “broader” consultation - people who may well want to continue the ability to sack senior staff without reason. We are all being very, very patient in a process that may not end in time to allow legislative change before the Government gets itself into election mode next year.

But Randwick Council’s GM, Therese Manns, thought it unnecessary to wait, and acted both immediately and decisively to support her senior staff. In an unprecedented move during this consultation period, she put two recommendations to the Council: that it prepare a submission supporting the historic consensus on providing fair employment for those currently called senior staff, and at the same time “convert Director level positions at Randwick City Council from senior staff contract to Local Government (State) Award”.

The Local Government Act 1993 requires councils to determine senior staff positions. The only position that must be senior staff and capable of being sacked without reason is the GM, and it is open to councils to not impose this unfair employment arrangement on anyone else. Smaller councils have been doing this for decades (although mostly because the second level doesn't meet the minimum remuneration levels required), Penrith Council has done this fairly recently but at last, to emphasise the importance of this historic consensus, the Randwick GM has fixed it locally. Inspirational.

Here is an extract from the minutes of the 18 October 2022 Council meeting:

If we had another seventy or eighty general managers prepared to do this, it wouldn’t matter how long it took Sagittarius A to deal with it. We urge all those other GMs to do it as well. Now that the ICAC has acknowledged the corruption risk with this form of employment, what’s holding them back?

With the consultation period ending on 15 November the optimists are hoping the OLG and the Government do the right thing on this and deliver the legislative changes this year. 

In 2018 depa joined in an action which the High Court describes as Unions NSW 2 v NSW Government. It was a challenge to the legality of restrictions imposed in New South Wales legislation putting a cap on campaigning expenditure by third parties and, in particular, imposing that same cap when a number of third parties get together - or as the legislation describes it, “act in concert”. It was also the second case Unions NSW had conducted on electoral funding, the first was successful, and the second was an absolute triumph, humiliating the NSW Government with all seven judges agreeing it was unlawful.

You can check our coverage in three different issues of depaNews here:

NSW unions challenge NSW Government in the High Court

High Court to hear union challenge to electoral funding laws next week

NSW Government doesn't understand why they lost the High Court case

Section 35 of the Electoral Funding Act 2018 is the problem but successful lobbying of the NSW Upper House saw the opposition and crossbench unite to rescind that section to ensure that the acting in concert offence was repealed. The Government agreed to the Bill, and that should have been the end of it, but the Government refused requests from Unions NSW to give an undertaking that they would not reimpose that provision in a way that would prevent joint campaigns in the future.

So, notwithstanding all that, the case has been set down for hearing in the High Court on Wednesday 16 and Thursday 17 November. The High Court must be wondering how many times they have to reject the approach of the Government before they accept there is an implied freedom in the Constitution for third parties to participate in the electoral process.

When the Local Government State Award was made to operate from 1992, one of the significant achievements was the requirement that all councils have a Consultative Committee that would, for the first time, acknowledge the importance of employees having a say in things that affect their lives at work. There was some antagonism to this but it was a Federal Government initiative at a time the government thought cooperation in the workplace was essential. It was a big step, challenging the historic view of managerial prerogative trumping everything, it prescribed how a Committee should operate, who should sit on it, what it should do.

Now local government accepts it is an integral part of a modern workplace.

But while Waverley Council thought Council meetings could be held remotely during the pandemic, for reasons not properly explained, they thought that the Consultative Committee couldn’t. So they didn’t, unchallenged for 30 months. The last meeting was on 12 February 2020.

The unions, first separately, and then together, started raising it with People and Culture, the people who would normally be responsible for the management of the Consultative Committee. Those approaches were ignored by P&C, trying to fob us off with talk of the need to review the Constitution, it wasn’t their responsibility, the dog had eaten their homework, and even if it wasn’t their responsibility, they were very happy to stonewall.

Thirty months is a long time to not have a Consultative Committee meeting when the rest of the industry quite happily moved to remote meetings. They’ve still not explained how the Council could operate this way, but not the Consultative Committee, so we filed a dispute.

As a result of proceedings in the IRC on 27 September, the Council accepted they would start having the meetings, consistent with the requirement in the Constitution to meet on a certain day every month and the first meeting was held on 12 October. The first opportunity to meet consistent with the Constitution.

It was a dispute over something that no other Council had ever done, without anyone ever properly explaining how it happened, or whose decision it was. No one has put their hand up to own it.

The dispute also demonstrated the truism that there is a high correlation between councils caught doing the wrong thing and complaining about unions being intimidatory. Thirty months breaching the Award, they should have extracted as many fingers as they needed to respond to the unions requests immediately. Sprung. No wonder they felt intimidated, poor little loves.

It was refreshing to have the relatively new GM apologise to members of the Consultative Committee at the first meeting, but no one has put their hand up and said it was me, and it was a mistake. That fell to the GM, taking one for the team. Both kind and courageous of her.

The unions had identified eleven policies and protocols that had been varied, amended or changed in some way, including proposed changes in the job evaluation system, that should have ordinarily been through the Consultative Committee. A sad development for a Council that regards itself as progressive and consultative.