Councils (meaning GM’s and/or HR) have been misunderstanding the obligations under section 353 Other Work almost since the Local Government Act was made in 1993. We’ve had disputes since then (twice with Sydney City!) with lots of councils where someone insists that anyone who wants to do anything other than their Council job, needs the GM’s approval. Bossy, moi?

For those of you interested in the history of this - how the declaration of everything was deliberately rejected by the Department of Local Government/NSW Government because it was unnecessarily invasive of employees’ privacy – here is a document showing that history.

It is also patronising because the decision to require everything to be declared assumes individual employees are unable to make that decision themselves. It’s a misuse of section 353 which clearly establishes that it is the employee’s obligation and that the only work that needs to be declared, and approval sought, is work that relates to or conflicts with the employee’s Council job.

It doesn’t matter whether it’s a misunderstanding, or prurience (wanting to know things that are none of the employer’s business) or patronising, but LGNSW and the three unions have always believed that it was the employee’s obligation to declare specific kinds of work only. That has been a consistent view since the first Exposure Draft Bill in 1992.

Now the matter is clear and unequivocal. The LGNSW Board resolved, and this week signed off on a Joint Statement on Other Work, which will be circulated to their HR network this afternoon, and more broadly in their General Circular next week.

Here is the Joint Statement, we encourage our delegates and members generally to embrace it, to raise it with their Consultative Committee to have uniformity in the industry without the ignorance, prurience or patronising.

That includes councils which have tried to reject this advice and ignore our correspondence, who will not be able to any longer. Yes, that’s you, Laura.

The NSW Labor Government committed to a review of the Industrial Relations Act 1996 (which underpins everything we do, and the employment of local government employees across the state) as one of their first decisions. They had been pressed to do so by Unions NSW on behalf of New South Wales registered unions, who skilfully managed the process and the extraction of improvements from the Government. depa is an affiliate of Unions NSW and, just like being a union member at work, it pays to belong.

The process has been managed by Industrial Relations Minister Sophie Cotsis, with the appointment of a panel - former IRC President Roger Boland with significant experience and expertise in the NSW jurisdiction, and Fair Work Ombudsman and advocate of “interests-based bargaining”, for want of a better term, Anna Booth.  

As the IR Commission now only covers the NSW public sector and local government, there was a heavy public sector focus - a monolithic and old-fashioned structure that had ignored the significant modernisation and flexibility enabled by the Local Government State Award.

Boland/Booth made a number of recommendations but because the Government, for reasons known only to itself, refused to share the report, we can only speculate on the report’s contents  but after some unnecessary delays, amendments passed through Parliament without opposition and are already law, providing enhanced protection for workers:

• Enables unions to run WHS prosecutions and receive a moity (a proportion of the penalty) for successful cases;

• Enshrines gender equality and the elimination of workplace bullying and sexual harassment as explicit objectives of the IR Act;

• Strengthens WHS compliance by allowing unions to bring forward prosecutions with moiety for WHS breaches following consulting with SafeWork NSW;

• Implements a new workplace bullying and sexual harassment jurisdiction at the Industrial Relations Commission (IRC);

• Empowers the IRC to facilitate return-to-work for injured employees in the public sector and local government;

• Allows unions and employers to have unresolved WHS disputes heard independently by the IRC;

• Creates new powers to hold SafeWork NSW to account by allowing unions to seek reviews of its decisions; and

• Makes it mandatory for employers to comply with the WHS codes of practice or a higher standard.

These are significantly enhanced protections and action under these new areas of jurisdiction will be pursued across the industry.

We record our thanks to Unions NSW Secretary Mark Morey and his astonishingly effective team, particularly, for their dogged determination to get this done - notwithstanding the continuing stand-off with Government over their pernicious plans for slashing and burning Workers’ Compensation.

We all know how difficult it is to manage bullying and boofheaded councillors. OLG struggles to do it in a timely and sufficiently punitive way and depa has historically been involved in disputes with half a dozen councils. At these councils, members have resolved to band services and responses to councillors who have said abusive things about our members in public.

We have pursued apologies, and received them, and been involved in disputes in the IRC to force apologies and commitments to better behaviour. In two disputes, OLG sent an observer, thereby revealing their own lack of confidence in their capacity to do what we were doing.

The new bullying jurisdiction will allow employees, including the GM being bullied by councillors, to take action and seek remedies and financial penalties.

Here is a link to brief commentary by a prominent IR barrister.

In the April issue we reported on an argument with Bega Valley about the right to disconnect after the Council had decided to terminate a long-standing on-call roster of EHOs to deal with high impact environmental accidents. The Council took the view that the roster, guaranteeing the availability of EHOs, cost too much at $12,000, and they would be better off individually ringing people out of hours.

At a meeting in Bega on 10 June, it became obvious that the Council was also concerned about having insufficient suitably qualified EHOs - something relatively easily resolved by that day agreeing to provide training ASAP to have suitably qualified people to fill the roster. This seemed a relatively simple issue to resolve, so it no longer was an issue about the right to disconnect.

In a happy conclusion, the Council has agreed to reinstate the roster for a trial period of 12 months, after surprising themselves that there were potentially seven employees who could receive expedited training on-site to staff the roster. Well worth the trip.