Get ready, we’re about to start negotiating the 2017 State Award

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Published: Wednesday, 07 September 2016 12:50

The three local government unions – the USU, depa, and the LGEA (left to right pictured above) - and LGNSW on behalf of councils across the state, are about to start negotiating the 2017 Local Government State Award. Yes, we know it seems a long time before the next pay increase, when it would normally apply, from 1 July, but this is a process a bit more complicated than it looks.

First, LGNSW drags through a festering group of HR Managers, some GMs, some Directors of Corporate Services to see what they would like to have negotiated in the next Award. This can’t be a pleasant experience for them, and collectively, our hearts go out to them. There will be slashers and burners aplenty in this exercise - some still smarting from not being happy about the potential to take a couple of days from sick leave for the health and well-being, or time off to try and find your natural parents if you’re a closed adoption, “will anyone have any time for work?” (two of our claims from the last award negotiations) and they will want to go hard again. Strip it back, back to the 50s.

And the unions have canvassed their members (thanks to those members of ours who responded to the invitation) and a timetable has been set by the President of the IRC (probably one of the last things he does before he ascends unto the Supreme Court with a heavenly chorus) and this will see the employers’ organisation and the three unions exchanging logs of claims on Monday 12 September.

This time, the three unions will consolidate claims that we have in common to make the process a bit more efficient and effective and, as always, we have tried to be realistic in developing our own log of claims. After all, the State Award was made by agreement between the parties in October 1991 and, apart from a little bit of private arbitration and pressure exercised by members of the Commission to get us to reach agreement on different bits and pieces, the successor awards over the last quarter of a century have all been made by agreement between the parties.

Here is a link to the claims signed off by the depa Committee of Management to be part of the joint unions’ claim or, if we’re the only ones interested in them, to be pushed by us alone. I would expect, because if there’s one thing a union official knows about it’s the concept of solidarity, we will provide a united and compelling front on our claims.

The timetable set by the Commission will have the logs exchanged next week, a listing for a report in the Commission the following day; a deadline of 10 October for the parties to exchange amended logs of claim; a report back on 13 December and then a series of compulsory conferences in March and May to resolve any outstanding issues. This is a program that should allow plenty of time for us to consult with members about what we end up with in the negotiations to continue our long and proud history of an agreed approach between the unions and the employers in the industry.

Government picks up the pace on dismantling IRC

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Published: Wednesday, 07 September 2016 12:50

On 1 September we were part of a deputation of affiliates of Unions New South Wales to be consulted by bureaucrats from the Department of Industrial Relations and Justice on the government’s decision to dismantle the IRC - splitting it in two and sending the Industrial Court and the current President of the IRC off to the Supreme Court. We covered this in our last issue.

(Be patient, we’ll get to Humpty Dumpty in a minute.)

The meeting was opened by the Director-General of the Department of Industrial Relations who described the Brief to Stakeholders on the integration of the Industrial Court into the Supreme Court as a “proposal”. This was a surprise to everyone as the word “proposal” didn’t appear anyway in the brief and we all understood what we were being presented with was a fait accompli, that it would happen whether we liked it or not, that it would happen whether it made any good sense or not, and all they really wanted from us was seven answers to seven specific questions about functional and machinery issues to try to make the transition easier.

We hate the idea of breaking down an historic, venerable and respected institution and fear for the longevity of the remaining five members of the Commission and their staff. We know, in a digital age, that a group that small can pretty much be bundled up, metaphorically and literally, and sent anywhere. And as many of us occasionally work from our cars, we may see them driving around in a Tarago or some other suitably sized people-mover in the years ahead.

We hope not.

Here is a link to the submission we lodged on 5 September. The Government provided less than a fortnight for anyone with an interest to make a submission and, really, why would they dignify a process which is nothing more than telling us what they’re going to do, like it or lump it?

It was acknowledged by the bureaucrats on 1 September that Cabinet had already decided to do this, although they were coy about responding to our questioning of when it happened. We reckon it happened a year or so ago, but they told us Cabinet confidentiality meant they couldn’t tell us. Clearly that’s a furphy, we can understand that they can’t tell us what happened in Cabinet, but should be able to tell us when Cabinet decided to do something. Shouldn’t they?

We were inspired in preparing our submission by Humpty Dumpty’s famous line from Through the Looking Glass, “When I use a word," Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean - neither more nor less.” It’s not really a question of integrating the Court, it’s a question of disintegrating the Commission.

And phew, that must’ve come very close to breaching the quarantine.

What are “workplace representatives” for on Consultative Committees?

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Published: Wednesday, 07 September 2016 12:50

Who’s pulling these clowns’ strings?

The State Award provides that all councils have to establish a consultative committee and that the committee must have minimum representation from the three unions party to the Award. An opportunity exists for agreement to be reached locally for a Committee to be expanded to ensure that it is “representative of the employer’s workforce” and sometimes that agreement has been reached locally, and sometimes it hasn’t.

The Unions have historically been opposed to non-union members being represented (they don’t want to participate in the regulation of the workforce anyway) and often councils have claimed that the union representatives don’t properly represent the workforce but haven’t been able to establish whether that is true or not. Usually, it’s just said to allow councils to find some compliant people who won’t be any trouble.

One of the problems with the potential election of people as a “workplace representative” who may not be union members is that they have nowhere to get advice on the complicated and vexed issues that are the staple diet of the consultative committee. And if they don’t have friendly union officials to ring for advice, what do they do? Well, what they usually do is ask the boss, or HR, or suck up to the GM or something like that, and that doesn’t make an effective workplace representative at all.

The three unions have now reached agreement on a Joint Statement to assist our local delegates make a judgement about whether or not they should agree to expand membership of the committee because someone reckons that it’s not properly “representative” of the workforce. Let’s face it, there is not one job in local government, where the employee can’t belong to one, or sometimes more, of the three unions.

The provision of the Joint Statement will make it easier for our local representatives to say no. And it squarely puts the onus on the employer to establish that the existing union representation is not representative.

Government to dismantle Industrial Relations Commission of NSW

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Published: Thursday, 25 August 2016 12:17

Well, we told you so. In October last year we predicted “NSW Government to shut down Industrial Relations Commission”. None of this Nostradamus stuff or crystal ball-gazing for us, we had reliable sources and as close as a confirmation as you can get from a Government busy trying to keep it all quiet.

We predicted that the integrated roles of the Industrial Relations Commission and the Industrial Court would be split - with the Industrial Court being folded in to the NSW Supreme Court - a court more familiar with commercial and criminal matters and no real experience in employment and industrial relations. We also predicted that the remainder of the Industrial Relations Commission, what they like to describe as the “non-judicial functions”, like settling disputes, would be transferred off to NCAT.

But, for reasons we couldn’t disclose, this didn’t happen at the end of the year. We still can’t disclose them but on 23 August the Government, through a joint initiative of The Treasury and NSW Justice distributed a “brief to stakeholders” titled “integration of the Industrial Court with the NSW Supreme Court.” All we got wrong was the timing.

But the proposal to split the Industrial Court and slip it into the Common Law Division of the Supreme Court was not accompanied by a proposal to stick the remaining roles of the Industrial Relations Commission into NCAT. Instead, on the face of it, the Government is proposing the addition of another Commissioner and a tribunal which will be run now by a Chief Commissioner. That will be five commissioners, including the chief.

But, like all takeovers of businesses, once the asset-stripping begins, where does it end? Once the Court is gone, the Commission will remain with only five members quite capable of being bundled up, both physically and metaphorically, and sent anywhere.

It’s no coincidence that the Government this week announced a facelift for the Macquarie Street precinct which, at the same time, ropes in those beautiful sandstone buildings in Bridge Street - including the building occupied by the NSW Governor and the Industrial Relations Commission on the corner of Macquarie and Bridge and the offices of the Department of Education and the Department of Planning running down the hill.

Commercial real estate interests, hoteliers and others must be drooling at the prospect of getting their hands on these magnificent Victorian buildings. Maybe even bloody Packer. We know that the Government has already measured up the premises with a potential move of some cabinet offices but, as with everything else with the Baird Coalition Government, commercial interests will win out.

The Departments of Justice and NSW Industrial Relations will consult with key industry stakeholders about the proposed changes. Consultation closes on 5 September, so anyone with an interest in the smashing of the integrated approach to employment management in New South Wales had better be quick. Here is a link to the “Brief to Stakeholders” for those who may be interested.

We will put in a submission. We are quite used to making submissions to Government that invariably fail to change Government plans, but it’s important that history shows that we did.

The NSW Industrial Relations Commission has operated seamlessly since 1901 - a respected and venerable institution with a proud history of protecting and advancing the rights of workers and employees generally. The Commission over that century and more has made a major contribution through test cases prosecuted by the trade union movement to improving standard conditions of employment and entitlements which have regularly flowed into the Commonwealth jurisdiction and the other states. Employment conditions in Australia would not be the same without that century of activism.

The detail of the proposal will see the current President of the IRC Justice Walton transfer across to the Supreme Court in a way which protects his salary as a personal occupant only and his seniority from the date he was appointed a judge - a transitional arrangement that will be the envy of many involved in mergers, acquisitions and restructures.

While most of our work is in the Commission, we have used the Industrial Court on a number of occasions. There was always an attraction in the integration within one tribunal of all those aspects of employment. We have filed successful applications for prosecutions of Marrickville and Bankstown for breaching provisions of the Award and we have filed successful section 106 Unfair Contract applications at Bankstown and Mid-Western. And all the time, the Judges within the Court were highly skilled and experienced specialist industrial relations practitioners.

We can’t be confident we’ll get that level of experience and expertise in the Supreme Court where any judge can be appointed to deal with these employment matters. The Sydney Morning Herald covered this story on 23 August, quoted one senior associate in a big industrial relations practice as saying that she was “concerned, access to justice would diminish under the new arrangement”. She believed that the Supreme Court was “more intimidating and costly” to start litigation. She’s right.

She was also right when she observed “I think there is a psychological barrier just associated with the name of the Supreme Court”. And she picked up the issue of the low-fee or no-fee jurisdiction of the Industrial Relations Court and the “comparatively high fees” of the Supreme Court. Pursuing prosecutions of councils and unfair contract applications could now be much, much more expensive.

Unions NSW Secretary Mark Morey

Unions NSW Secretary Mark Morey said the Baird Government was removing an institution that specialises in industrial relations law. “Instead we will now see industrial matters dealt with by judges who are more used to dealing with commercial or criminal matters” and that “it will be slower, more unwieldy and, ultimately, more costly.”

And in what may prove to be a remarkably accurate prediction, NSW Greens MP David Shoebridge, while lamenting this would affect public servants seeking legal remedies to workplace disputes because this was “killing a specialist industrial tribunal through death by 1000 cuts”, said “I think it’s time we had a new employment workers compensation and employment discrimination tribunal as a division of NCAT (NSW Civil and Administrative Tribunal).”

Adam Searle on a happier day

The NSW Opposition shadow for industrial relations Adam Searle said the change was “just another step towards diminishing an important institution that has protected working people in this state for over a century. The Supreme Court and its processes are more formal and legalistic and intimidating. Abolishing the Industrial Court and placing its work into the Supreme Court will make justice less accessible to regular working people.”

The immediate impact on us is that some industrial disputes are held by the President and this won’t continue. The IRC President also managed the negotiations of the 2014 Local Government State Award and the President has retained an application before the Commission for the 2017 Award where a timetable was set. This will need to be referred to one of the commissioners.

Our predictions last year were met with significant derision. Mostly from those who would like to distract us from revealing something that was about to happen about which none of us, and certainly none of the key stakeholders now being consulted, had been briefed. Bagged as rumour-mongers and Nostradamus, sometimes the rumour mongers and those who predict the future do get it right.

“What have the Romans ever done for us?”

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Published: Monday, 11 July 2016 14:44

“All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a fresh water system, and public health, what have the Romans ever done for us”

What have the unions ever done for us?

Workers compensation

Occupational Health and Safety protections

Compulsory superannuation

35 hour week

RDOs and flexible working arrangements

Paid annual leave

Penalty rates/shift allowances

Overtime

Parental leave

Equal Pay

Paid sick leave

Public holidays

Long Service Leave

Redundancy protections and pay

Unfair dismissal protection

And yes, a few things from local government:

Councils pay for BPB accreditation

Protected leaseback cars

Obligations to introduce flexible work for parents/family

Obligations to consult on workplace changes

Protections in disciplinary procedures for both performance and behaviour management

Obligations to provide training

Obligations to provide reasons in writing for unsuccessful applicants

Protections against term contracts

Not a member, but would like to join? We have a delegate at every Council who would be delighted to assist or you can use this link.

Mid-Western Council receives ICAC report

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Published: Monday, 11 July 2016 14:44

GM Brad CAM and the grumpy old bastards

Mid-Western GM Brad Cam was not a “person of interest” in the ICAC investigation, which began with a raid on the Council’s offices and the Mayor’s home in May 2014. This was an investigation affecting our members and which, amongst other things, saw the GM sack two of the directors and the subsequent departure of five of the senior people in the planning and environment area, as if from a sinking ship.

The ICAC has now decided that it will not go to public hearings. Instead, as they are able, they have provided a report to the Council under section 14-2 of the ICAC Act, and the “persons of interest” and it will be considered by the Council in closed session tomorrow. That section also requires that the report be provided to the relevant Minister, in this case Local Government Minister Paul Toole.

Mid-Western Regional Council will meet on Tuesday, 12 July to consider the confidential report, but the Notice placed in the paper by GM Brad Cam says only that the closed meeting is for “Consideration of Governance Matters relating to Council”.

The Mudgee Guardian hasn’t shown much interest in these proceedings and no interest at all in pursuing the unfair sackings, the way that the GM has accounted for the costs of the sackings and the significant legal costs, nor the departure of other staff to safer places but on this occasion the Guardian published that “council will discuss a report from the Independent Commission Against Corruption (ICAC) at a closed meeting on July 12. General Manager Brad Cam said that the councillors will consider a submission in relation to a potential report under section 14-2 of the ICAC Act.”

A little bit more specific than the obscure public notice.

But the meeting must start in open session before the councillors resolve to close it and the meeting is obliged to consider any submissions that may have been made before they do so. So, we made one and also sent it to all the councillors, the Office of the Minister for Local Government and to the Mudgee Guardian, just so they knew that there were reasons why the meeting should be open to the public and the Council should decide to release the ICAC’s Report.

Communities with councils that are undergoing an ICAC investigation deserve to have the ICAC’s final report published. To do otherwise hides behind an unacceptable cloak of secrecy and a restriction on good governance that only protects the guilty.

And if one or more of the three “persons of interest” is in the clear, why wouldn’t they want it published?

Early elections, bring back local democracy!

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Published: Tuesday, 21 June 2016 14:24

And get people elected like this …

When the Government suspended Auburn Council and set up an inquiry into their planning decisions and whether councillors had complied with their obligations under the Local Government Act, the community lost the joys of the democratic process - people like Ned Attie,  ex-councillor and, for a period of time, Mayor.

Mr Attie, or suspended Councillor Attie to be properly respectful, gave evidence to the Auburn Public Inquiry on 16 June and without any apparent discomfort or embarrassment, made confessions like the ones above.

His evidence shows a general lack of awareness of the recommendations of council’s planning staff. In a public inquiry about notorious planning decisions and the role of councillors, he said, amongst other things - “again, like I said, I don’t recall this, but if it was part of the Council documents, then possibly”; quite a few “I can’t recall”; “I skimmed through”; “that is why we are elected as councillors. We represent the views of the community, not the staff”, and in an almost transcendental moment said, “I make those assessments internally between myself”. That must be quite a tussle - the sort of internal debate envisaged by those most alarmed about the loss of local democracy.

This also intrigued the Commissioner to the extent that he asked “do you have any regard to what the planning staff recommend?” And while suspended Councillor Attie insisted that he did, and that sometimes he agreed and sometimes he disagreed, he saw the role of professional planning staff as quite different and quite limited in their considerations. “They don’t bring in the emotional aspect or the community aspect into anything they do.”

Here is a bloke with significant experience on a Council notorious for allegations of vested interests, looking after developers and not the community, and a flamboyant, threatening and ostentatious Deputy Mayor who made application to the Council to close street and use helicopters to film a “feature film”, which was really the recording of the fairytale wedding that made the tacky Kardashians envious.

Even virgin or fledgling councillors understand that a planning instrument is developed with significant community consideration and, primarily, to protect the community for emotional, heritage, architectural, environmental, privacy and protection of amenity and quiet enjoyment of your own property. Suspended Councillor Attie is simply wrong. And to demonstrate we are not being vindictive about Ned Attie, we’re not going to even mention the story “Confused mayor votes against himself” in the Sydney Morning Herald on 23 November 2012. Other than saying it doesn’t surprise us at all.

When suspended councillor Attie’s lawyer predictably intervened and objected to the line of questioning the Commissioner defended the line taken by Counsel Assisting as “exploring whether the councillors have fulfilled their obligations under the Act”. The lawyer reacted with “it doesn’t fall within the terms of reference” but was slammed by the Commissioner responding “of course it does” - helpfully noting that Term of Reference 1 “includes section 439 of the Local Government Act regarding reasonable care and diligence.”

While we can’t wait for the findings from this inquiry, it puts the whole emotional argument about how people are affected by the loss of local democracy into perspective. While staff love working for a Council not comprised of dilettantes, the self-interested, developers, real estate agents, sharks, spivs, crooks and boofheads, when you look at some of the revelations being made in the public inquiry, the inverse relationship between the democratic election of councillors and the concept of merit is starkly and uncomfortably reinforced.

Take your time, Premier. Let the administrators make the decisions under current planning instruments without the demonstrated shortcomings of the democratic process. What possible value can people like this add to the quality of residents’ lives?

Senior staff jobs go in amalgamations and the hero is Viv the Vivisector

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Published: Tuesday, 21 June 2016 14:23

Viv the Vivisector

It all hit the fan on Thursday 12 May when the NSW Government by proclamation amalgamated 42 councils into 19 new local government areas. The proclamations included the appointment of administrators to be the Council until election in September 2017, interim General Managers and, depending on how many GMs of the existing councils remained standing, one or more deputy GMs to provide certainty and continuity of their employment.

There had been a consensus view amongst the three unions and LGNSW that there needed to be some form of protection provided to senior staff beyond the 38 weeks’ payout under the standard contract. The Government, through the Office of Local Government and Department of Premier and Cabinet, was also working with the parties to the Award to provide comfort to local government employees at the time of high uncertainty and dramatic change. It was all about happiness generation and protecting morale.

So, when the new Cumberland Council Administrator Viv May met with a displaced Auburn GM and an undisplaced Auburn Deputy GM on the morning after the proclamation, he revealed quickly and dramatically that being named as a Deputy GM in the proclamation provided no certainty or continuity, and those contracts were terminated that day.

(In the interests of full disclosure, the Administrator’s evidence before the Auburn Public Inquiry stated that while he terminated the employment of the Auburn GM, he did so “at his request”.)

But the Deputy GM hadn’t asked to be sacked and, the current tally of senior staff gone is five. It’s not so much the number (because Georges River has seen off one GM, three directors and one IT Manager and Inner West has seen off two GMs, three directors and one other Director position temporarily filled) but the unseemly speed with which it all happened in an environment the Government was carefully constructing to avoid frightening the horses.

In all the amalgamations, those staff who watched their GM disappear felt the loss - and it didn’t matter whether it happened fast or in some sort of agreed way over time. It is reasonable to say that the removal of some much-loved GMs, and some much-respected GMs, poisons the water from which all other employees drink.

But you have to hand it to Viv. The Vivisector started spilling blood before the proclamation was even 24 hours old and provided a role for us to get the DLG to intervene and at least reference in the termination letters a regulation scheduled for the following week that ensures the termination payment is a redundancy, but not quite the “bloodbath” with the unions the Vivisector was hoping for.

Interim GM Merv Ismay, ex-GM of Holroyd (both much-loved and much-respected) decided that it was a pretty good time to take his retirement and Cumberland is the first Council, within a month of the proclamation, to have appointed a second interim GM. The quinella - the first sackings the first interim GM pulling the pin.

Viv has always been a polarising person. As GM at Mosman he was inspired on a managerial study tour to the UK in 1980 by the Thatcherite model. He came back to Australia enthused about the joys of privatisation and contracting out and successfully contracted out all of Mosman Council’s outdoor staff. A model that the employees of Cumberland are well-aware of and, were it not for their three years’ protection, would be a real prospect.

Employment Matters Working Party clarifies the protections under the Act

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Published: Tuesday, 21 June 2016 14:23

The Employment Matters Working Party, comprising the DPC, OLG, LGNSW, USU, LGEA and depa, meets every fortnight to allow the Government to consult with those with the expertise in employment in local government, and to inform the Government using that collective expertise developed over more than two decades of cooperative employment relationships.

The OLG provides weekly FAQs to new councils through the Stronger Council’s website. There were plenty of bizarre anti-employee interpretations of the employment protections under the Act (yes, many of you lot in HR) and the FAQs have now included clarification and certainty with the agreed consensus wording:

Do the employment protections prescribed under the Local Government Act 1993 for staff affected by mergers apply to individuals or the positions they hold?

An Employment Matters Reference Group has been established to advise the Chief Executive of the Office of Local Government on matters impacting on the statutory and policy framework governing employment by councils, including any issues arising from merger implementation. Membership of the group includes Local Government NSW, the United Services Union, the Local Government Engineers Association of NSW and the Development and Environmental Professionals’ Association.   Advice by the Group is provided to the Chief Executive with the consensus of all members of the Group.

The consensus view of the Group is that the protections conferred on staff of councils affected by mergers or boundary alterations under the Local Government Act 1993 apply to individual staff members and not to the position they hold. This means that irrespective of the position they hold at the time of a merger or boundary alteration or subsequently hold in a new council, non-senior staff:

• cannot be made redundant without their agreement as a result of the transfer for three years following the merger or boundary alteration  
• must continue to be employed under the same terms and conditions unless they voluntarily consent to the alteration of their terms and conditions  
• cannot be transferred to a work base outside the former council’s local government area unless:
  • they give their written consent to the transfer, or  
  • the transfer would not cause them to suffer unreasonable hardship because of the distance they would be required to travel to their new work base.

See how much progress is made when the dilettantes and dabblers at LGPA recognise that they’re not experts in industrial matters and leave it those who are?

Not so fast, the dilettantes and dabblers are still at it

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Published: Tuesday, 21 June 2016 14:23

Just when you thought you were was safe from Dorothy, the cowardly Lion, the heartless Tin Man and the brainless Scarecrow, LGPA has provided some misleading advice to the industry in marketing their LG Forum on Council Mergers on 30 June. This lot had abandoned giving advice to senior staff on employment issues in amalgamations with advice from President Barry Smyth that if senior staff are members of the three unions, that’s where the advice should come from, because LGPA is not an industrial organisation.

But the marketing of the Forum includes a workshop called “Bringing Two Salary Systems Together” run by some bloke called Bob Davidson, claimed to be an “EBA Specialist”. No one I’ve spoken to has any idea who this bloke is, and if you go Google or go to LinkedIn, he can either be a finance professional, an itinerant labourer or potentially a consultant at Davidson Workplace Solutions. And if you Google Davidson Workplace Solutions you find someone called Rob Davidson, who, from his brief profile is apparently a man.

So, why would LGPA think it made sense to wheel in a bloke, and we mean a bloke, and describe him as an “EBA Specialist”, when an EBA is something that happens under the Fair Work Act and has nothing to do with local government in New South Wales? Is it because I have no idea what they’re talking about?

The most important thing about deciding what to do about salary Systems in each Council, is to involve the unions.

So, the unions collectively wrote to the councils (although the Interim GM of the Council on the link is too smart to fall for this LGPA stunt) who received this marketing guff and pointing out, amongst other things, that “if the Council wants that advice, it should get it from LGNSW.” Not some anonymous person, who could be either Bob or Rob, or both, with an expertise in the Federal System, which is not even mentioned on the website of Davidson Workplace Solutions.