It was a triumph for cooperation, shared values and the desire to build an effective and efficient local government when the Local Government State Award was made by agreement between LGNSW and the three unions in 1991. The new Award was preceded by a skills audit of the industry, funded by the NSW Government and cooperatively managed between the employers and employee organisations, 400 classifications disappeared from five Awards and 11 levels and pay rates were introduced, based on gender-neutral skills descriptors. Lovely, a great achievement.
In the intervening quarter of a century (yes, it has been a quarter of a century) the parties to the Award have regarded it as a dynamic document which can be adjusted to accommodate the needs of the industry. When it’s up for renegotiation it gets the repairs and any fine tuning it needs. Cooperatively, issues that are identified in industrial disputes during the year, imprecision or confusion about interpretation or whatever, all these things get fixed.
Sure, there are some things that require the Commission to bang heads together and get an agreement but by and large the document was made based on goodwill, shared values and cooperation and has been varied by agreement continuing those values, ever since.
But not this time.
We started negotiating the 2017 State Award when we exchanged logs of claims back in September. Again, the unions made claims based on problems that had existed in the industry over the term of the 2014 Award and off we went in negotiations with the assumption that the quarter of a century of goodwill, co-operation and shared values would continue. But it hasn’t.
As an example, let’s take our claim for twelve fundamental principles of procedural fairness to be incorporated into the disciplinary procedures. Here is a link to our log of claims if you need to refresh your memory on these principles but the twelve principles were all drawn from case law, decisions taken in industrial tribunals establishing fundamental considerations that should underpin procedural fairness. With some minor rewording they now constitute a joint–unions claim.
Procedural fairness is the weak underbelly for employers in disciplining and sacking employees. That’s where the knife invariably goes in during an unfair dismissal and the first and fundamental consideration in any employment tribunal is whether the process was fair. It’s where employers get it wrong and where many an employee gets away with something that, had it been procedurally fair, they wouldn’t be returned to work.
But LGNSW takes the view that councils don’t need to provide procedural fairness in an investigation, that amongst other things, councils shouldn’t be troubled by simple rules, well-established as procedural fairness principles - like providing all of the evidence to an employee to allow them to respond properly, allowing an employee to nominate witnesses or others who should be interviewed to support the employee’s position etc.
How can an organisation have two different approaches to procedural fairness? They support procedural fairness when it comes to looking after councils and councillors but they don’t support procedural fairness when it comes to looking after employees. Hypocrites of course, but being labelled hypocrites should be the least of their worries as they confront this dichotomy because there are two other serious considerations here for them.
The first is that local government had no guidelines in any Award about disciplinary procedures, rights and obligations on the employer, or rights for an employee. The first Disciplinary Procedures clause went into the 1995 Award as a result of a claim put up by depa. At that time the industry had been the subject of a series of unfair dismissal cases where, given the lack of procedural fairness, employees were reinstated so fast that heads were spinning back at the councils. Something had to be done.
The agreement at the time was that councils must “properly conduct and speedily conclude” any investigation process. This should be enough really but councils revealed a range of bizarre interpretations about what constituted proper conduct and what constituted speedy conclusion. We had a dispute with Campbelltown more than a decade ago about an interminable process that was vigourously defended by the Council as being both competent and timely when it was neither.
As we negotiate the Award the unions are surrounded by multiple examples of councils which simply get it wrong, which deny procedural fairness in an investigation, who withhold evidence, who choose not to speak to witnesses etc. Why wouldn’t it make abundant sense to write the rules down in a legally enforceable way so that a Council knows how to do it and an employee knows what to expect?
The second is LGNSW argues that if the employee being investigated is unhappy about the unfairness of the investigation, then they should file a grievance, or have their union file a dispute for them, but they can only do this by ignoring the welfare of the employee being investigated. An investigation can be the first time an employee finds themselves in that position in a long career. Employees are naturally both anxious and fearful of the process and how they will be treated. Many are afraid of upsetting the Council and it takes a courageous employee already being investigated to compound the awkwardness of the relationship with the Council by filing a grievance or having their union drag the Council into the Commission. At the very least it compounds the employee’s anxiety and concern.
Employees being investigated want the investigation conducted quickly and fairly. They don’t want any trouble and they certainly don’t want to be seen to be sticking it up the Council because they want to be cleared to continue working there.
The LGNSW on this is not just unrealistic and hostile to employee welfare, it is perilously close to setting up councils to breach their obligations under the Work Health and Safety Act 2011.
How can an employer, unfairly conducting an investigation that impacts on the health and well-being of the employee because of its unfairness, not be in breach of its obligations to “secure the health and safety of workers and workplaces”? The legislation is there to protect employees’ health, safety and welfare “through the elimination or minimisation of risks arising from work”, to provide for “fair and effective workplace cooperation in relation to work health and safety”, to “provide a framework for continuous improvement and progressively higher standards of work health and safety”, and all these things under the principle that workers should be given the “highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work”.
Being hypocritical is one thing, setting up circumstances that compromise health and safety for employees in an investigation is another.
Let’s just write the rules down in the Award. It would mean that councils won’t find themselves in the Commission for breaching procedural fairness and employees will get fair processes and an acknowledged regard for their well-being.
Conciliation on the outstanding issues continues...
