The Ascension marks the death of the historic IRC

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Published: Tuesday, 13 December 2016 15:32

The Ascension

Well, sadly it has happened.  On 8 December, IRC President Michael Walton was sworn in to the Supreme Court.  The swearing-in, was part of the dismantling of the IRC that we have been forecasting accurately for more than 15 months - despite the reluctance of the Government and other significant players to admit they were about to kill off the venerable and century-old institution.

Not only were the rumours not killed off, on 3 August President Justice Michael Walton convened an audience with the parties to the State Award - LGNSW representing the employers, us, the USU and LGEA, to respond to concerns about changes within the IRC that had all of the indicators of confirming the rumours.  The courts and Registry in Wollongong would be closed, the registry in Newcastle would be closed, there was to be a common administrative system with all other courts within the Department of Justice and what had been a readily understandable maximum four number system for case references (for example, IRC 16/2016 etc) had morphed into a ludicrous ten number memory and intelligence test that everyone familiar with the old system failed.

While the President strenuously defended his good work protecting the continuation of the IRC by keeping it away from NCAT, he didn’t mention the other part of the equation - the Government’s plan was that he would be taking the Industrial Court under his arm and heading off to the Supreme Court, leaving the remnants of the IRC and their non-judicial roles to continue.   It could be that he didn’t know, or that he did know and couldn’t say …

So, when The Ascension occurred on 8 December, it had been preceded by advice from the Attorney-General, the Minister for Industrial Relations and the Department of Justice that the remaining Commissioners and the Industrial Registry from 9 January would open for business in 70 Goulburn Street.  That’s right, not folded into NCAT as we had predicted, but sharing a floor with NCAT where it can only be a matter of time before the final indignity will be inflicted upon the venerable and century-old tribunal.

And what a fiasco.  No consultation with the four Commissioners, all of whom were blind-sided by the announcement and none of whom had been invited for an inspection of the premises or consulted on the suitability of the Government’s proposals for the work that the remaining Commissioners would carry out.   The plan of the floor shared with NCAT provides for four small courts (when the Government has committed to there being five Commissioners, including a Chief Commissioner who has not yet been appointed) but these small rooms provide seating for a maximum of eight.  This is a completely impractical arrangement because on probably the majority of proceedings, there will be more than eight people looking for a seat.  In our industry, there can be more than eight people at an individual Council dispute when you consider that there could be upwards of four representatives of Management plus representatives of the three unions etc.  Everyone will have to fight it out and scramble for a seat when the music stops.

But it gets worse.  Clearly the Government neither understands, nor cares how the IRC works: the primary function of the IRC is to settle disputes between parties by conciliation but there are no conference rooms where one party can meet separately with the Commissioner, or wait while a Commissioner meets separately with the other side.  This happens every day in the IRC and the current accommodation, the beautiful Chief Secretary’s building in Bridge Street (which one day you may get to visit as an exclusive international hotel) can accommodate both sides, or separate sides when there are differences of opinion between the unions, or even multiple employers, in multiple conference rooms.

The rooms and the accommodation are not fit for purpose and this can only be described as a farce that could only have been worse if our observation that with a small group of Commissioners and electronic communication, they could all find themselves in a Tarago, looking for parking around the city, was something other than a joke. As we publish this issue of depaNews there is informal advice that the move is off until September, but we will hold off on this because we normally don’t give any credit to informal sources.

Leaving that aside, this is a tragedy of the worst kind.  The Commissioners are left to fend for themselves in substandard accommodation, inconsistent with their primary obligation to bring parties to a dispute together by conciliation and subsequent agreement, and in an arrangement that will, in time, simply get worse...

Everyone has seen the model that the Government is using - dodgy owners of heritage properties know this strategy only too well - they fail to maintain it, they let it rot and decay, and then all that can be done with it is demolition and redevelopment.  Shame. 

We give OLG’s Employment Reference Group another chance

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Published: Tuesday, 13 December 2016 15:32

Over the last two months we have run stories critical of the unnecessarily confidential approach being taken by the Government in amalgamating councils when both the industry and the community deserve a transparent and open process.

We managed to shame the Department of Premier and Cabinet (DPC) into lifting the confidentiality of the “savings targets” they had imposed on merged councils.  There was no need for these to be confidential;  there were probably 100 people in the industry with access to their confidential information anyway and many of them were employees compromised about trying to keep quiet things that affected their workmates and colleagues; it required councils to put at risk their obligations to disclose decisions made that would create significant effects on employees under clause 39 Workplace Change and Redundancy of the State Award – it was nothing more than a clumsy, officious and petulant restriction.  None of anyone’s business, they reckoned.

We also questioned the validity of the Employment Matters Reference Group, established by OLG to draw on the expertise of LGNSW and the unions on employment issues but regularly hampered and frustrated by restrictions imposed by the bureaucrats at DPC.  But, despite our reservations, we attended the last meeting of the year on 29 November and found a welcoming and conciliatory approach.  OLG was never the problem and we had to remember that we were dealing with two Government agencies here but Steve Orr, the Executive Director, Local Government Reform had more significant things to do (hard to imagine, given his title) and he was unable to attend.   The meeting proceeded in such a pleasant and consultative manner that when it came time to agree on the date for the next meeting, we chose a date when we knew Steve would be unavailable.  A very practical approach to keep us all focused on the positive nature of the Reference Group rather than the negative.

But, making the Government lift confidentiality restrictions on things they wanted to keep confidential is one thing, there has to be an equal and opposite action in response, hasn’t there?

And there was.  The Administrators and IGMs were in town for their normal monthly catch up which became a bit of an Xmas/end of year event attended by politicians and government bureaucrats as well.  While they invited representatives of the USU, depa was left off the invitation list.  Really …

Are things going any better at Sydney City with their asbestos contamination?

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Published: Tuesday, 13 December 2016 15:32

No, but more next week.

Who has the worst HR in local government this year?

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Published: Tuesday, 13 December 2016 15:32

Our special issue of depaNews, focusing on the four nominations for the worst HR in local government will be published next week.  Here is a hint for one of the nominated councils:

Sydney mishandles asbestos contamination in Town Hall House

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Published: Tuesday, 29 November 2016 13:04

The City of Sydney celebrated November as Asbestos Awareness Month with a succession of compulsory conferences in the Industrial Relations Commission over the way they handled asbestos contamination in their Town Hall House on 7 October.  Just when it looked like the City had survived an entire year with no criticism from us of their processes, their general lack of commitment to employee welfare, their propensity for confused and confusing communication and all from an organisation boasting of its transparent processes and interest in providing documents to whomever wants them, they deliver an asbestos contamination fiasco containing all those things – but the transparency.

On 7 October, subcontractors of the contractor responsible for maintenance in Town Hall House (where there can be 900 or more employees every day plus tenants) drilled holes in fire doors, the majority of which were clearly marked as containing asbestos, and, before they were stopped by someone working for the contractor Brookfield Global Integrated Solutions (BGIS), had contaminated fire stairs and foyers in fourteen separate areas on ten different floors.

While the City was advised in an email at 11:14am that the doors had been drilled and that they contained asbestos (and the sub-contractors had fled the building) the City allowed employees to continue working until the end of their normal working day which, for most would be six hours after the advice was provided.  And given that employees can only go to a toilet in Town Hall House by walking past the fire doors, or even using the stairs, that would mean many would have walked right past the contamination, or over it.

The City also allowed employees rostered to work on Saturday and Sunday to come to work. Uh oh…

While first raised at 11:14, nothing happened to alert employees to the risk and no steps were taken to manage the risks until at 2:48pm when the City advised staff that the fire doors were closed to conduct “air sampling testing,” and not using the word “asbestos” at all.

Asbestos fibres had been released from the doors but it was not until the Sunday that a hygienist recommended that Town Hall House be closed to allow the cleanup - something that then took two more days. 

In the way the City normally communicates, the immediate advice to employees failed to mention that they would be paid for the day the building was closed. That’s when the investigation of processes, what went wrong, how this occurred, who was responsible for the City’s response, whether it should have been accelerated to a higher level of the organisation, who made what decisions etc, began.

And then the to-ing and fro-ing with the City - their Manager Corporate Human Resources and the CEO about what had happened; when we could meet (Monday was offered by the City but then withdrawn because of “conflicting diary commitments” - that is, their people had better things to do) and they offered the rest of the week up to Thursday, demonstrating that they didn’t share our urgency; some confusing messages about when we would get the report; all culminating in our frustration and the filing of an industrial dispute on 3 November.  The dispute was listed before Commissioner Murphy on Monday 7 November.  There were many questions flushed out of the conference chaired by the Commissioner.

There are so many things wrong with this process that it’s hard to know where to start and it now seems that the ten questions we originally asked of the City have been compounded by two other issues. First, that carpet tiles have been replaced potentially for fear of asbestos contamination and may not have been removed consistent with asbestos handling guidelines and second, that the closure of the fire doors (except in an emergency!) could have been a breach of those provisions of the EP&A Act preventing the obstruction of fire doors.

Following the proceedings before the Commission, we wrote to the City on 9 November and included the ten questions developed during the IRC proceedings.  We added to those ten questions the two additional issues about the replacement of the tiles and breaching the EP&A Act. 

While we filed the dispute because it didn’t appear that the City was taking the issue seriously and the communication was indolent, confusing and frustrating, the CEO responded at 1:48pm on Thursday 17 of November that “as I have advised you will get the report in full, when it is completed and available”.  But, as we discovered, the report had been completed and was available to the City at 7pm the night before.  Where it had been in the hours up until the CEO’s advice to depa remains a mystery and it was not forwarded to the unions until 7:45pm that night.

There are more questions at this stage than there are answers even though the issue has been the subject of two compulsory conferences and will return to the Commission on 8 December.

While the actual issue itself is a disgraceful performance with insufficient concern for the welfare of employees, we run the risk of losing sight of the issues about the asbestos contamination while we chase the CEO for an honest answer about when she became aware of the report being “completed and available” and, if it wasn’t provided to her the night before, why not.  And if it was, why tell us that we would get it when it was completed and available when it was already completed and available, and possibly in her hands?

Either she hadn’t received the report by 1:48pm (and that means it was withheld from her by someone from 7pm the night before) or she had the report while she was busy telling us that she didn’t. Let’s hope we don’t have a pants on fire moment here.

The City did respond to the ten questions but needed more time on the carpet tiles and EP&A Act questions.  They responded that “the report was received by members of Executive and key internal staff” and “once members of the Executive and key internal stakeholders had an opportunity to review the report”.  Yes, but who had it after 7pm?  And, when did the CEO see it?

Commissioner Murphy on 21 October recommended that the City provide further answers to the unions, not just on who had the report and what was happening to it while they were busy telling us they didn’t have it, but on fundamental issues like why the City didn’t know work was being done on fire doors, how they still don’t know how many carpet tiles were replaced, or where, or how they were replaced.

In a city with such a high reputation for its progressive and valuable work in planning, public transport and sustainability, their responses to the legitimate concerns of the unions, and to us as the notifier of the dispute, is hypocritical and unacceptable.

Ignore Henny Penny, there has been progress in State Award negotiations

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Published: Tuesday, 29 November 2016 13:04

Poor old Henny Penny, an acorn dropping from an oak tree onto the poor chook’s head sent her off into an hysterical panic that “the sky is falling”..  It wasn’t of course, it was simply drawing the wrong conclusion.  Dopey chook.

With the logs of claims of LGNSW for the employers and the three unions exchanged in September, there have already been four days of constructive discussions. In parallel, we had one separate meeting between the parties with Mastertek, the experts on the job evaluation system, arising from a claim we made about updating the Local Government Job Evaluation System and with a follow-up on the job evaluation issue next week.

It’s important to remember that the Local Government Job Evaluation System, usually referred to as 00-Soft (which is just the name of the software) or Wyatt, which was the originator of the system back in the 1990s built with the cooperation of LGNSW and the three unions.  It would be good to keep that cooperation and the experts involved in the 90s through this process.

depa’s claims were dealt with on the second day of negotiations and now the three unions and the LGNSW have all run through their claims.  Given that the State Award was made by consent of the parties in late 1991, and has been varied by agreement ever since (with some assisted conciliation from the IRC when necessary) our clear expectation is that the 2017 Award will be made by agreement as well.

But there is one claim in the Employers’ Log which has Henny Penny on the run.  That’s their claim 13 which proposes to delete clause 18A(ii) providing the 35 hour week for salaried and professional staff.

Back in September, when we dealt with the commencement of these discussions in depaNews, we referred to the consultative group that LGNSW is obliged to talk to as “a festering group of HR Managers, some GMs, some Directors of Corporate Services”.  Clearly they’re not all that bad but no one should be surprised to see reactionaries, those who would have your kids working down the mines for 18 hours a day or staff working for bugger all as part of this group and no one should be surprised that the log of claims will contain things that are never, ever, ever, ever going to be agreed.  Is that enough evers?  Just to be clear, it’s never, ever, ever, ever.

And the claim to remove the 35 hour week is one of them.  Apart from anything else, 35 hour week employees have a different hourly rate to anyone working a 38 hour week, so that if there were to be changes, that hourly rate would be protected and the employees would get three extra hours pay.  The machinery and consequences of this have not yet been discussed even though the unions have pushed LGNSW for an explanation of the implications. 

More importantly, since the Award was made in 1992, there has been a capacity to have Council agreements signed with the unions where employees would make arrangements to agree to work 38 or 40 hours a week for an additional payment - not usually the overtime penalty, but something better than single time, which was embraced by employees who tended to work those additional hours anyway.

Since that time there has been a reduction in these arrangements as councils withdraw from the flexibility available in the Award and just try to crack the whip a bit harder on existing staff and force additional work and hours without proper payment of compensation. 

We all know that you don’t get everything you put in a log of claims, and if you want to get a bet on about something that won’t proceed, get a bet on against the removal of the 35 hour week.

Tell them they’re dreamin’.

depa’s prestigious HR Awards will be announced next month

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Published: Tuesday, 29 November 2016 13:04

As much awaited by those responsible for human resources management in councils as our members, this is an exciting time of the year for those who haven’t been doing the right thing.

We’ve always taken the view that calling out those with the worst HR will improve the standard of HR management in the industry and it looks like this year, after 12 nominees last year, there has been a significant outbreak of good behaviour in the industry.

Councils like Cumberland and Inner West when they had the opportunity to do the wrong thing in standardising grant days over Xmas New Year chose the opportunity to do the right thing - providing to Marrickville employees the days off that were the entitlement of those at Ashfield and Leichhardt, and the entitlements at Holroyd to those at Auburn.  Good work by both the administrators and the Interim General Managers at both those merged organisations.  And, there you are, something nice in depaNews about Viv the Vivisector, and who would have thought that would ever happen.

Viv May is good bloke

Yesterday we received a clause 39 letter from Parramatta City telling us that they have created nine (9) additional full-time permanent positions within the Regulatory Service Unit.  And we expect a similar letter creating new planner positions very, very soon. 

Despite all this good behaviour and positive developments at these councils, we have three candidates already busy out there setting astonishingly poor examples on things like denying natural justice during an investigation, failing to look after the health and well-being of staff in an open and public way and one council which hasn’t been the subject of a dispute yet, but will surely be in the New Year, after a long history of under-resourcing, disrespect and mistreatment of staff.

Our special December HR issue will be out in the week commencing Monday 19 December.

BPB gets their fingers out on what should happen with PINs

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Published: Tuesday, 29 November 2016 11:25

Now that the BPB has cleaned up the vast backlog of complaints against private certifiers, they have finally got their act together to flesh out processes for the issuing of PINS against accredited certifiers - whether they be private certifiers or accredited Council employees.

In October they released advice on the Penalty infringement notices and a PINs policy and procedure titled “Issuing of penalty infringement notices to accreditation holders: Policy and procedures”. 

The BPB has had the power since 2009 or so to issue penalty infringement notices for a variety of offences.  Those offences are all listed in the Building Professionals Regulation 2007 (effective 2009) and the relevant sections of the BPB Act where penalty notices can be issued are sections 58(2), 60(1) and (2), 61(1), (2) and (3), 64(2), 66(1), 72, 73, 74 (1) and 85 (1).

Before anyone gets too excited, as far as we are aware there have been neither any investigation, nor any finding against council accredited staff despite Council employees being accredited since 2008/2009.  That doesn’t surprise us, we know that Council employees do a good job and that the backlog of complaints were all private certifiers with less interest in disclosure, record keeping, proper process and managing conflicts of interest.

Members who are accredited with the BPB need to see these documents and be aware of the risks.  Not all of those sections apply to Council employees - for example, while councils are obliged to provide insurance under section 63, if the Council decided no longer to insure them, accredited employees are obliged under section 61 to notify the Board.  Well, durr. 

While we hate the system of accreditation of council staff, because it creates parallel accountability with an employee’s employer as well as the Board, because of the absence of any investigation or penalty being imposed on Council employees, it’s been hard to argue that there should be an allowance paid by the employer for the additional accountability and risk. 

Since 2010 in the Award we have had leave reserve provisions to allow us to argue “to vary the Award consistent with the principles of the Industrial Relations Commission of New South Wales in relation to the accreditation of employees by the Building Professionals Board” but because we have no evidence of any additional accountability beyond the simple process of accreditation, or the risks associated with reduced accreditation levels or penalty notices for offences, because nothing like that has happened, it remains as a leave reserved provision.

We regularly have to tell members that we can only get some action happening in this area if the BPB slammed a council employee, reduced their accreditation level or fined them - giving us some real evidence of the downside of BPB accreditation so that we can actually do something about it. 

But we’d rather have no evidence, wouldn’t you?  Or a non-member of ours getting slammed, would be perfect.

Nevertheless, we haven’t met with the BPB for a long time and it makes sense for us to do so early in the New Year for a catch up.

A facade, is always just a facade...

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Published: Thursday, 27 October 2016 12:24

The website Modern Heritage Matters defines Facadism as usually referring to “the trend towards preserving the facade of an historical building while erecting new buildings behind or around it.” It’s something that gives a nod to history, or legitimacy, but which hides something else. Like a movie set or a faux consultative mechanism established by Government to placate aggrieved organisations under the impression they were being genuinely consulted.

There is no doubt that the Government’s construction of the Employment Matters Reference Group is a facade aimed at hiding practices quite contrary to the espoused intention behind its construction.

The question for us is how much longer we are prepared to put up with participating in something where the Government itself doesn’t comply with its own Terms of Reference.

We exposed DPC for not distributing the fortnightly Stronger Councils Stronger Communities Status Update (covering 11 July to 24 July) by distributing the document to members of the Reference Group when DPC had failed to do so. The document dealt with a whole range of employment issues and how progress was being made in the merged councils in weeks 9 and 10 after the proclamations and, by any measure should have been distributed every fortnight to the Reference Group.

But when it was argued at the next meeting of the Reference Group that we should have this information, all the DPC would say was that they would have a “conversation” with the Minister for Local Government, because it was his call whether we should see copies. DPC chose to do nothing in the time between us distributing the document and the next meeting of the Reference Group and if they really needed to have a conversation with a bloke more interested in transparency than they are, they should have had it before we all met. It was like getting blood from a stone.

In the end it was agreed that we would get it, but we haven’t had all of them, we weren’t consulted when it went to a monthly rather than a fortnightly report, nor on the template proposed to measure progress, nor on the secret documents containing “cost savings” targets, nor on pretty much anything else.

Given the cloak of secrecy under which the Reference Group operated, it’s hard to be too explicit, but suffice to say there has been no attempt to properly refer matters, nor to consult on a range of things including employment templates; OLG’s decision not to continue investigations into councillors with code of conduct complaints now they were no longer councillors after a merger; the seemingly fruitless and repeated requests for a list of facilitators working for DPC “assisting” councils comply with the Government’s requirements, and that after they did disclose the facilitators, a further one was recruited and that wasn’t disclosed either; complaints emails unanswered and then, yesterday, to find that the Local Government Reform Program Status Report to the end of September had been circulated last week but again, not to the Reference Group.

The continued failure to distribute the Status Report must surely be the last straw.

DPC is the problem here. Seemingly incapable of understanding the concept of what should be referred to the Reference Group, they are also incapable of responding to things like the twelve specific questions in our letter to the Minister for Local Government on the “savings targets” and the two undertakings we have repeatedly sought to allow us to determine whether we should continue to legitimise this facade or whether it will genuinely become a Reference Group to which things are referred by the Government and consulted upon.

You’ve got our letter to the Minister with the twelve questions, the two undertakings we are seeking are:

• DPC and OLG will provide all information that falls within the Terms of Reference of the Reference Group, in the broadest terms, electronically, to members of the Reference Group between meetings or, if the timeframe is acceptable, at the meetings, and
• the templates already circulated in the industry, purporting to formalise a transfer of employees who were employees at the time of the proclamations be withdrawn by OLG.

When DPC replied on behalf of the Minister for Local Government in response to our twelve questions, they replied with a broad summary of what they have been doing and didn’t address the twelve questions, one-by-one, as they should have. DPC will argue that in their own obscurantist way they covered off on most of it but there is absolutely no doubt they didn’t answer the question, “why didn’t DPC and OLG consult with the unions on targets that are specifically derived from salary savings and workforce efficiencies prior to reaching agreement with individual councils?”

The next meeting of the Reference Group is scheduled to be held on 29 November. Whether we remain members to attend that meeting will depend on the Government’s response to legitimate concerns about the functioning of the Reference Group and the Government’s own commitment to its Terms of Reference.

Despite the hypocrisy, the Group has assisted in opening doors into OLG and we do have issues about things like the employment provisions of the Act, what to do about senior staff now that the SES has transitioned public servants off term contracts and other issues that mean we should keep the communication channels open. But at what price…

Government dismantles Industrial Relations Commission

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Published: Thursday, 27 October 2016 11:47

Heavenly chorus waiting ...

It was always going to be a sad day if the integrated Industrial Court and Industrial Relations Commission were torn apart and that happened on 12 October when the Industrial Relations Amendment (Industrial Court) Bill passed both through both houses of the NSW Parliament.

While it seems likely that early December will see the ascension of the President of the IRC the Hon Justice Michael Walton to the Supreme Court we know that his ascension will be accompanied by a heavenly chorus and the sort of welcome he deserves.

No appointment has been made yet to the newly created position of Senior Commissioner, who will preside over the other four members of the remainders of the IRC, so if the President is ascending in five or so weeks, they had better hurry up.

It doesn’t matter whether it’s 130-year-old fig trees planted to commemorate the Anzacs, or Federation houses to make way for WestConnex, or a more than a century old venerable and esteemed institution, there is just something the Premier doesn’t like about the start of the 20th century.