Prime Minister announces IR reform - oh no, here we go again

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Published: Thursday, 27 June 2019 14:32

Really, is there no imagination in that Federal Government? Clearly emboldened by their unpredicted return, PM Scott Morrison has announced that the government will review the industrial relations system and initiate steps “provoking the “animal spirits” in our economy by removing regulatory and bureaucratic barriers to businesses investing and creating more jobs”.

Speaking to the WA Chamber of Commerce the PM announced this week that they needed “to get Australians off the economic sidelines and on the field again”. And while he did say “industrial relations changes “must be evidenced-based, protect the rights and entitlements of workers and have clear gains for the economy and for working Australians”, it’s hard not to be sceptical given John Howard’s WorkChoices and Tony Abbott’s WorkChoices II.

But while the initial announcement from the PM mentioned protecting the rights of workers, the Industrial Relations Minister Christian Porter has now announced a review of the “better off overall” test in enterprise bargaining, potential changes to unfair dismissal laws and a review of what constitutes a “casual” employee. The first two sound like trouble but a proper review of what constitutes a casual and casual employment is grossly overdue. Casual employment is an area where local government runs a risk, employing people as casuals, who are really part-time permanent employees...

Accompanying this reform is their Ensuring Integrity Bill, making it easier to disqualify lawbreaking unions and officials. Nothing for depa to fear, of course, but there must be a way of initiating another review of industrial relations that doesn’t have in the background their historic hatred of the CFMMEU.

It’s one thing to understand that if a building site has a CFMMEU flag flying from a crane that it’s going to automatically be a safer workplace, but wouldn’t it make all of our lives easier and more comfortable if they can do it without the criminals, sexual harassers and threatening boofheads making the trade union movement look like thugs.

A new Minister for Local Government - let’s see what we can do about those unfair standard contracts

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Published: Thursday, 27 June 2019 14:32

We wrote to welcome the Hon Shelley Hancock MP as the newly appointed Minister for Local Government, delighted to have a minister who has spent decades of her life devoted to local government as a councillor on Shoalhaven and understands the industry and its needs.

In her inaugural speech in the legislative assembly on 28 May 2003 (always a good way of getting to know people) she spoke fondly of her years as a teacher at Ulladulla High School. Nice to think that she had a career beginning as a teacher in state schools. Even nicer to note that in acknowledging her father’s contribution to her development, having “planted the Liberal seed“,  the Minister noted “Dad and I argued very little, except perhaps about trade unionism”. As good a confession as any that she was a member of the Teachers Federation at Ulladulla and we note her recognition of responsible unionism. She will like what we have done by cooperation between the unions and the employers in local government over the last three decades.

We met her Senior Adviser who already had a significant depth of knowledge, particularly about the things that concern us - private certification, the value of the cooperative approach in negotiating Local Government State Award for the last quarter of a century and our historic view on the blatant unfairness of term contracts for senior staff and how they facilitate unfair treatment.

We’ve already seen too many examples of councils getting rid of GM’s without explanation but also of GM’s sacking directors using the 38 weeks’ pay provision of the Standard Contract which doesn’t require explanation. What the ICAC describes as “no reason”.

We saw it in 2015 when the GM at Mid-Western sacked the Director of Planning and Environment and the Director of Corporate Services in the middle of an ICAC investigation and we saw it this year when the GM of Narrabri Council sacked the Director of Development and Economic Growth. We wrote to him and he responded “the Council makes no admission to any breaches of the employment contract” but then later in the letter remedied one of the breaches by agreeing to pay the SOORT increase but didn’t acknowledge it was a breach.  

This was a messy termination at best. It was concluded with a breach of section 337 of the Local Government Act by not consulting with all councillors before the sacking and commenced with an issue about placing the member on the standard contract for senior staff six weeks or so before the position was made senior staff!

depa has filed a section 106 Unfair Contract application in the Supreme Court.

Interestingly, the ICAC in their report at the conclusion of the Mid-Western investigation, criticises the ability to sack general managers with “no reason”. They said:

.. the “no reason” provisions in the standard contract, however, could create an uncertain employment environment for a general manager. The Commission’s concern is that such uncertainty could be used improperly to influence the actions of a general manager. Councils, Local Government NSW and, given its investigative role, the OLG, should be aware that, rather than a simple issue of employer-employee breakdown, the termination of a general manager of a council under “no reasons” provisions may indicate that councils have attempted to improperly influence a general manager.

And that applies equally to the termination of other senior staff as well.

Significantly, the senior staff provisions in the Local Government Act were modelled on employment arrangements for the Senior Executive Service in the NSW Public Sector. It flowed into local government, notwithstanding the clear differences between the two levels of government and the acknowledgement in the industry of the tendency for councillors to occasionally threaten both GM’s and directors.

Five years ago Premier Mike Baird resolved to transition the overwhelming majority of the SES employees into permanent positions but this reform hasn’t flowed into local government yet.

The ICAC’s Operation Dasha into the former Canterbury has dealt with issues about employment under the standard contract for both the GM and the Director of Planning and depa made a submission to the ICAC with recommendations on planning and employment to avoid the problem is the subject of the investigation.

Look out if your Council wants to review your nine day fortnight

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Published: Thursday, 27 June 2019 14:32

Councils regularly review their flexitime, or nine day fortnight arrangements or whatever, and generally do so trying to provide better flexibility for staff while at the same time protecting services to the community. We’ve been dealing with two councils where management took the opportunity to try and remove an entitlement for staff at the same time.

Clarence Valley has had a rigid nine day fortnight arrangement for more than a decade where, over the years,  different managers had agreed to flexible starting or finishing times to meet employee needs - but continue high levels of service. So when they announced to staff that they wanted to look at introducing a flexitime system with flexibility on start and finishing times, it should have been a relatively easy task. Who could say no?

The union representatives on the Consultative Committee were delighted to participate in the development of a more flexible system based upon the nine day fortnight but this wasn’t what management wanted - they talked up the flexibility, introduced the possibility that the nine day fortnight may not be as regular as it had operated in the past but, without really announcing it, proposed changes to the way hours were counted so that if the new system came in, every employee would need to work an additional 47 minutes for every public holiday. And 47 minutes added up over the year makes it pretty close to a full working day.

Then management battened down the hatches. They ignored the cooperative approach available on the consultative committee; argued that the consultative committee union representatives didn’t reflect the view of employees generally; ran information sessions where they discouraged questions from employees, particularly about the dreaded 47 minutes; and when the USU filed the dispute, uniting the three unions in opposition, the Council organise a rigged survey of staff providing a choice between the nine day fortnight (but threatening to remove any existing flexibilities that existed) or the flexitime system they were promoting.

All the while, not being open about the dreaded 47 minutes and complaining that they didn’t understand what it was the unions wanted.

The dispute had two compulsory conferences in the IRC before Commissioner Murphy in Sydney but one of the complications with the new IRC at Parramatta is that the courts have the technology to allow parties to phone in. And this means that with examples like Clarence Valley, the bosses can sit in the general manager’s office, rolling their eyes, being uncooperative and feigning ignorance about the unions’ concerns.

But when the Commissioner turns up in Grafton on 3 June he gets us all agreeing in a very cooperative process to dropping off the theft of the 47 minutes and adopting the flexibilities proposed in the new arrangement without compromising the nine day fortnight.

And then three of the managers gave testimonials to how good their bosses were and entertained us all. Not quite the fat lady singing, but it was over.

The details are being worked out in a cooperative manner now with Council having finally understood what it was the unions wanted and having agreed to it. It’s hard to understand what people want when you don’t listen.

And at Queanbeyan-Palerang, new software in payroll had apparently required changes to the way the flexible working hours system there had been operating. It’s always a problem buying new software that doesn’t accommodate your current circumstances but it was presented as forcing a need to transfer to a two week settlement period .

But, management use the opportunity to pursue the forfeiting of the 13^th RDO in the year. Blatant, impossible to properly justify and, just like Clarence, not listening or trying to find a solution. But again, just like Clarence, under pressure they withdrew the proposal so that the new accounting arrangements could operate alongside those preserved entitlements.

The lesson in both these councils is that if management wants to review flexible working hours or RDO arrangements, always read the fine print.

Shellharbour shows why you need to be a member of a union

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Published: Monday, 25 March 2019 11:46

Computer and Carey say no

Last year Shellharbour Council restructured and dislodged a couple of our members who, when it became clear there was no alternative job that didn’t involve being paid less, decided to take redundancies.

The process rolled out over a number of months, commencing with a Q&A “to keep staff informed” and asserting it was in compliance with the provisions of the Award,  but under the heading “Who can I talk to? ” the council listed only management and HR representatives. No mention of the unions, why would you need to talk to them?

Being made redundant, or even choosing to be made redundant when there is no alternative position for you, is one of the great traumatic experiences of working. In local government the Award is explicit with entitlements but Shellharbour took the view that while the Award prescribed termination payments based on years of service, the prescribed five weeks’ notice, or payment in lieu thereof, was an opportunity to save some money.

As a general rule, anyone made redundant in the industry, either against their will or at their choosing, gets the payment plus the five weeks’ pay in lieu of notice. That uniform arrangement across the industry exists because those provisions have been part of the Award for more than 25 years.

There have been a few councils over the years which tried to argue that the employee had plenty of notice, so they had worked out the five weeks, but invariably when the unions have pushed back (most recently for us at Willoughby last year, one of the reasons why they were nominated in our HR awards) the Council falls into line with the industry practice.

But not Shellharbour where there HR Manager Paul Kiley famously responded to depa, “common practice in other Council’s (sic) does not constitute an entitlement”. We hadn’t, of course, we just said it was a common practice because everyone interpreted it the same way.

But having reached agreement with the employees concerned, neither of whom had been made redundant anywhere previously and believed they could rely upon the Council doing the right thing, nominated their final date of service and the Council seized upon this as allowing them to work out their five weeks’ notice and not receive payment as part of their termination. Nya nya, you lose, in other words.

This is a disgrace and it’s reasonable to say that had these circumstances existed at any other council, both would have received the full payment without fuss. Many councils where we are involved in negotiating redundancies have agreed that employees can take accumulated leave to get them to critical dates like 1 January for taxation purposes, or 31 December for defined benefit superannuation purposes, and then be paid their termination payment and the five weeks in lieu of notice. They do this, because they care for the wellbeing of their employees, particularly when they are losing their jobs. – unlike Shellharbour.

This was our second dispute this year and a Deed of Release was signed by one of the members which contains a confidentiality provision, so nothing to see here.

The second part of the dispute however was we wanted the Council to sit down with the unions and negotiate a protocol about how they would do this in the future. It would allow for a proper discussion with the employees about what they wanted to do with those five weeks pay, did they want to continue working at the Council and forfeit them as part of their lump sum payment at the end, would they work a couple of weeks and take the remainder as a lump sum, or what.

However, in the Commission the council made it clear they were not interested at all in a protocol regulating this because if people being made redundant don’t take advice from their unions to understand how it all works, then more fool them. Not in those exact words but that’s what it meant.

We think that appalling and we have a nice early nomination for our HR awards in 2019. But, we’re going to press on with developing a protocol and just for fun, we prepared one which the GM Carey McIntyre should have little trouble agreeing to, because it’s based upon how they like to do business now. It’s a joke of course, but doesn’t it damn them.

And we’re in dispute with another Council too

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Published: Monday, 25 March 2019 11:46

We’ll keep this one confidential in this issue but we filed a dispute with another Council over unacceptable behaviour by the GM. Our involvement quickly had the Council organise an external investigator to conduct an investigation before we were in the Commission on 11 March and on that day the Council agreed to six guidelines we proposed to keep the GM away from our members involved while the investigation continued.

But, notwithstanding that clear and unequivocal agreement, the GM ignored it on three occasions. We pursued it after each one and warned that if he continued to breach the agreement we made we would return to the Commission to pursue a recommendation or direction that he comply with the agreement.

Which we did on 20 March. The Commission agreed that while the GM may not agree with the agreement, and claimed he would not have agreed to it had he been in the Commission, that it made sense while the investigation was continuing for the GM to keep away and stop wandering through the workplace until the investigator’s report was available. Commissioner Sloan so recommended and the GM agreed.

We’ll keep you in the loop as this develops.

Super dispute in the Commission as well

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Published: Monday, 25 March 2019 11:46

We knew that our dispute filed more than a year ago about the degree of compliance in the industry with requirements in the LGS trust deed for the defined benefit schemes to include a value for private use of a motor vehicle in the concept of superable salary, was going to take a long time to resolve. Now there’s an extremely boring and unenticing opening sentence for people who aren’t in the defined benefit scheme, but unfortunately this has been an issue where members of those schemes haven’t been vigilant individually in ensuring that they received their entitlements, so it was even a bit incomprehensible for those affected.

This has required LGS to have councils focus on the superable salary calculation for 2018 and in the last weeks has pursued those councils which have included a component for private use of the motor vehicle in the superable salary for 2018, to see if they’re done similarly in previous years, and those councils where there was a question mark about how they had done it, to review how they had done it in recent years as well.

The dispute had been listed for a report in the Commission on 14 March and will be listed again to see what has developed from those LGS approaches to councils on 30 May.

NSW election means we’ll be bashing our heads against the wall with the Coalition Government

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Published: Monday, 25 March 2019 11:46

No-one knows yet whether the Liberal/National Coalition will govern in its own right or require the cooperation of independents, but we can only hope that whatever falls into place over the next week or two provides some hope for proper engagement about protecting senior staff against unfair treatment. Certainly better than the last few years.

We need a Local Government Minister prepared to listen and do the right thing. Senior staff employed by the NSW Government have been transitioned from term appointments to continuing permanent employment over the past five years, but our pressure on the Office of Local Government hasn’t swayed the Government to do similarly. There is absolutely no doubt that senior staff in local government deal with more political sackings and political pressure than their counterparts employed by the State, and they need better protection.

We love a challenge, and we are committed to getting it moving as soon as possible. This time, there seems to be some sympathy from LGNSW to prevent the unfair treatment that we’ve seen at a number of councils, Mid-Western and Narrabri for two, where our members have been sacked unfairly.

At Narrabri it looks to us like the GM breached the provisions of the standard contract in six areas prior to terminating it. Shameful, really. He has acknowledged one breach which he will remedy but refuses to respond, “the Council makes no admission”,  on the other five clauses he has breached, refusing to talk to us and respond to our correspondence. Hardly inspirational leadership.

We still hate term contracts for senior staff

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Published: Thursday, 28 February 2019 15:03

The scales of justice symbolise the importance of a balance between opponents in courts - the process is meant to be fair and even-handed.

But the least fair and least even-handed employment arrangements in local government operate under the standard contract legislatively enforced on councils to employ their general manager and senior staff.

This isn’t just an issue affecting a GM and directors, because if there’s no fairness available in their employment relationships, what hope is there to expect they behave fairly to their own staff? While the Award has fairly strict requirements about disciplinary processes and performance management, Award employees also have the safety net of access to the Industrial Relations Commission.

There is a long and sad history of the introduction of term contracts in councils. Initially seized upon as a way of getting rid of people easily without having to be fair or reasonable, the Institute of Municipal Management (the precursor to the Local Government Managers/Local Government Professionals, or whatever they’re called these days) encouraged the rot with a discussion paper arguing it separated out executive staff from the rest. And then they developed their own model contract, a flawed and contradictory document that earned them a special award from us way, way back, in August 1995.

The 1993 Local Government Act introduced the requirement for senior staff to be employed on a fixed term. We fought vigorously at the time, we argued it constantly and in the Five Year Review of the Act, the Minister for Local Government at the time, the much-loved Ernie Page, agreed with our concerns. In a letter to those who had participated in the review dated 6 October 1998 he said this:

It was submitted as part of the review that in some cases over the past five years, councils have used the fixed-term nature of employment contracts for senior staff as a tool for terminating individual staff, rather than using a more appropriate performance management system. This gives rise to concerns about the ability of council staff to maintain their independence and give professional opinions about Council matters as the end of their fixed-term draws nearer.

It is therefore recommended that senior staff should continue to be employed on contract, but that the nature of those contracts should be open-ended rather than fixed.

Sadly that recommendation to Cabinet was defeated, senior staff remain employed on term contracts and, as vividly demonstrated last week in concluding what had been a long-running farce at Parramatta City, Kunc J in the Supreme Court emphasised:

“the Council has a right to terminate without cause by giving the written notice or by making the termination payment under subclause 11.3... In any event, clause 10.3.5 again provides a complete answer because under clause 10.3.5 the Council can terminate the Contract without cause.”

And that, is the fundamental unfairness that allows a Council to terminate the employment arrangement without cause, and in turn allows a GM to do similarly to other senior staff.

It’s not good enough. While members of the SES in the State public sector have been transitioning away from term contracts into permanent employment now for four or more years, the OLG, responsible for the management of the Local Government Act, have sat on their hands and made a few minor changes, but remain committed to the capacity to terminate the contract “without cause”. Or Local Government Ministers have made them sit on their hands (a position they must find increasingly uncomfortable) but it’s hard to know.

The OLG managed a Working Party to review the GM and Senior Officers standard contracts way back in 2012, but there are still no protections, no mandatory mediation before termination for example, and still the 38 weeks’ payment without cause continues.

There was some disagreement between LGNSW and the unions, and also with Local Government Managers (or whatever they’re called these days) about appropriate termination and penalty arrangements. There is now a brand-new board of young bloods in LGMA, I wonder what they think about complying with the standard contract and unfairly terminating it? We’ll ask them.

This will be something for us to start pursuing again if there is a change of government in NSW after 23 March. But even if there isn’t a change, something needs to be done.

It is entirely possible for a Council to breach its obligations to conduct performance reviews, provide proper performance feedback to a GM, and any number of other provisions within the standard contract and then terminate without cause and get away with it. And similarly, it’s entirely possible for a GM to do that to a member of their senior staff. It’s a shortcut for the lazy.

When the GM at Mid-Western sacked two of the directors without cause, including a member of ours, back in 2016, we took action for that member under section 106 Unfair Contracts of the Industrial Relations Act which allowed us to settle. But the capacity to sack people without good reason remains.

In 2005, Haylen J in the IRC in Paparo v Moree Plains Shire Council found that the Unfair Contracts jurisdiction was available to local government senior staff, and that included the power of the Court to vary unfair contracts to make them fairer and to provide compensation beyond that provided in the standard contract.

Now with the separation of the IRC and the removal of the more judicial roles to the Supreme Court, section 106 Unfair Contracts run in the Supreme Court, a costs jurisdiction which will make councils and GM’s work harder to avoid what Ernie Page described as looking like they’re using “a tool for terminating individual staff... giving rise to concerns about the ability of Council staff to maintain their independence and give professional opinions about Council matters”.

It’s hard not to speculate that there are some shoddy terminations going on, where there is clear evidence that a GM, for example, has been guilty of multiple breaches of the senior staff contract for someone reporting to them, creating multiple layers of unfairness and then, clearing the deck, without cause by paying 38 weeks. The only prerequisite to that being section 337 of the Local Government Act, which requires the GM to consult with the Council prior to the termination.

And it would be a foolhardy GM who didn’t do that. Wouldn’t it.

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

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Published: Thursday, 28 February 2019 15:03

When the Full Bench of the High Court smashed the NSW Government in a unanimous judgment of the seven members on 29 January, they found that the steps the government had taken to slash the amount of money third-party campaigners could spend in elections were unconstitutional. That means, it was not legally available to the Government because of provisions in the Australian Constitution.

But, that stinging rebuke, that it was fundamentally unlawful, didn’t penetrate the members of the Government, who still blissfully continue refusing to use the word “unlawful” when they described their disappointment. This is extraordinary because this is the second time this has happened to this government. Pay attention you lot, it’s unlawful and unconstitutional, and now you’ve done it twice! So much for the learning curve.

NSW Treasurer Dominic Perrottet in the Sydney Morning Herald on 30 January said the government was “disappointed” and “unions will now have the ability to exercise free rein on spending the members’ dues - without giving them a say - on wall-to wall advertising during the NSW election campaign.

The purpose of our legislation was to clean up politics. The government believes elections should be free and fair, not bought with out-of-control spending by unions and other third parties”.

Given that they can spend $11 million themselves, that really is arrant nonsense but I’m sorry Dominic, it was unlawful. You can be as disappointed as you like, but it was against the law.

Similarly, John Barilaro, leader of the National Party in an approach to members and supporters lamented “The Unions have won”.

I’ve just received word that the High Court has blocked our efforts to rein in the vast amount of money Labor’s unions and third-party campaigners like GetUp can spend on election campaigns. It’s terrible news.

I am worried we won’t be able to keep up with a negative impact of this new spending that will be coming into our election. We are mere weeks away from the State Election and unions have just scored a major victory.”

Hey John, it was unlawful. It was illegal. It was thrown out because it was unconstitutional. That’s a level of denial comparable to the Nats’ denial of the evidence of climate change.

And finally, by regulation, the Government has now re-introduced the cap that existed prior to their unlawful legislation of $1.228 million, with no restrictions on the amount of money a number of third-party campaigners can pull together to participate in the democratic process. Now that complies of the Constitution.

And, four weeks out, has anyone seen the wall-to wall union campaigning?

We file our first dispute of the year with Snowy Valleys Council

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Published: Thursday, 28 February 2019 15:03

Section 354D is a real nuisance to merged councils, isn’t it? An indefinite protection on “entitlements” of employees that existed at the time of merger that Snowy Valleys didn’t really like.

And trying to hide behind the suspicious loss of documentation from the former Tumbarumba demonstrating that this was an agreement between the GM and the employee, they heavied a member of ours to stop paying the full costs of an associate diploma. More suspicious was that even documents and emails existing at Snowy Valleys supporting this continued arrangement have gone missing as well.

It was a relatively simple matter for us to contact the former GM at Tumbarumba and provide evidence to the Council, something that SVC didn’t bother to do. That would have been a good start, before the heavying.

It doesn’t matter about the politics of merged organisations, an entitlement is an entitlement. More next month.