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Published: Monday, 29 June 2020 12:14
Commissioner Murphy of the NSW IRC made the 2020 State Award following a brief hearing on Friday afternoon, 26 June. The Award was made by consent of the parties, meaning that it was an agreed document reviewed and accepted by the IRC as satisfying a range of legislative obligations.
In a climate where unemployment levels are spiralling and people are lucky to have jobs; public sector employees generally are struggling for a pay rise; where the NSW Government is trying to impose a pay freeze for their public sector employees (currently being arbitrated by the Full Bench of the IRC); where the combination this year of drought, floods, COVID-19 and an economic recession made things looked decidedly grim, Local Government NSW and the three local government unions were able to reach agreement, not just on pay increases for the next three years, but visionary and far-reaching changes to the Award for the benefit of both councils and employees.
So concerning was the state of the economy and the surrounding glum economic circumstances that the employers and the unions acknowledged the obligations of the IRC to consider “the public interest … the state of the economy of New South Wales and the likely effect of its decisions on that economy” and we both separately sought professional economic advice to present to the IRC, in a clear and cogent way, that the economic benefits of pay increases for local government employees and the impact of that money flowing into regional communities supported the prudent and sacrificial 1.5% increase from the first pay period after 1 July 2020 and the 2% increases due in July 2021 and 2022. (Agreed in the context of expected increases in SGC those years.)
The three unions jointly funded a report from Equity Economics, an independent group of economists that you can see here, and LGNSW provided advice from their Chief Economist. Both reports and the Commissioner’s significant involvement in negotiations over the past six or so months were sufficient to convince Commissioner Murphy that he could proceed to make the Award on Friday.
Unlike 2014 and 2017, where the Award negotiations were difficult and adversarial (substantially reflecting internal issues in LGNSW with CEO musical chairs) this time was different. In a process starting with logs of claims from each party back in August and with the assistance of the IRC when necessary, 34 changes were agreed and the Commission had assisted the parties to agree to a number of things including issuing directions the Council is to furnish information on their compliance with award obligations on training plans and salary progression.
And of course our critical triumph, the new clause 9 requiring at 9(i) the employer to “provide adequate staff and other resources to enable employees to carry out their duties and functions over the course of working hours that are not unreasonable and support the implementation of the employer’s community strategic plan and operational plan”.
This has created both a new right and a new obligation in the industry: the right for employees to have proper resources and to be able to do the job in reasonable working hours, and an obligation on employers to provide that. Potentially this clause can be used everywhere.
Here is the recommendation from Commissioner Murphy 16 March 2020 when we had a formal hearing of the claim.
We’ve always been obsessed with disciplinary procedures and investigations and the Award will provide more assistance to councils on when they should, or shouldn’t, conduct an investigation. Driven by poor management and HR decisions at Sutherland and Canada Bay, clause 36C Workplace Investigations at (v) adds two more considerations of when investigations shouldn’t proceed:
- whether there have been concerns, threats are allegations made against the employee previously by any complainant, and
- whether the complaint itself has been copied to others, thereby indicating that any allegation about work performance or conduct may be vexatious, punitive or harassment.
This is how Award negotiations should work - see a problem in the life of one Award, fix it in the next one. Out of two bad decisions comes better protection.
Plus, annual and long service leave can be taken by agreement with the Council at half pay or double pay, annual leave can be paid out, there is a new focus recognising the prevalence of bullying in local government, better protections on whether your leaseback car is a condition of employment, focus on term contracts requiring each term contract to identify how it can be a term contract under the requirements of the Award and much, much more.
The Award will operate from 1 July (with pay increases from the first pay period after 1 July each year) and will be on our website that day.
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Published: Monday, 29 June 2020 12:14
We have much more experience with the ICAC in the way it does business than the NSW Ombudsman. If either are investigating at your Council you need advice, and no more so in the last couple of weeks when the NSW Ombudsman took an interest in a 2015 DA at one council and started asking some questions.
And not just asking questions where employees could have the opportunity of responding in writing, but talking up their power to require interviews and employees providing “oral” evidence. In documents to members they cited their powers under section 18 of the Ombudsman Act to interview and require “oral” evidence.
Members sought our advice and what do you know, when you look at section 18, there is no reference to “oral” evidence at all. All that section 18 refers to is the ability to require the provision of documents. Another valuable lesson in checking whether what is said to be a power, is in fact a power.
And in a happy development, both for the employees concerned and the Council, in response to our resistance the Ombudsman’s office agreed that while they do have advice that they can require oral evidence, if the employees concerned would prefer to do it in writing, they can...
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