February depaNews

Grumpy Wagga Wagga builder Peter Hurst has had a win over Wagga Wagga City Council with the ADT ordering that the Council disclose details of their investigation of his 2010  complaint.

There is nothing wrong with complainants wanting to be satisfied their complaints were properly investigated and that the result of the investigation is transparent and consistent with the evidence provided. But, there are sometimes people in the community for whom no decision or action, other than the one they want, is ever acceptable.

In 2010 Peter Hurst made a broad range of allegations against two members of ours in the Planning Department. A long investigation by the Council's own Internal Auditor (so long that we filed a dispute to try to hurry it up) cleared the employees concerned and the subsequent industrial dispute set a new standard for protecting employees in the industry. No longer can councils ignore the protection of their employees’ professional reputations as part of their duty of care.

At the time, the complaint was part of a broad approach by developers unhappy with the Council requiring that they comply with conditions of consent and planning instruments and calling for the Council to be stripped of their planning powers. The Office of the Minister for Planning fuelled the flames but, again, when properly examined by the Department of Planning they were rejected and the Council retained its powers. Everyone should just get on with it.

But not Peter. An application under GIPA to have access to the full details of the investigation was rejected by the Council, then partially complied with but not entirely. Our members affected had no problem at all with the complainant seeing the details of the investigation but the Council did and, in the absence of an appeal, he will now get that access.

The irritation in this process is that Peter Hurst likes to be pretty secretive himself. The NSW Industrial Relations Commission had recommended that the Council obtain an apology from Peter Hurst for his allegations in the publicity surrounding them. In depaNews in August 2010 we said "this will be a measure of the man. We can hope he will be big enough to acknowledge his mistakes, apologise appropriately and get on with the job. We will see."

In response to the Council's request, local lawyers Walsh and Blair advised they were acting for Mr Hurst and "we are instructed that our client will apologise to council staff. The form of an apology will have to be the subject of agreement."

Great, he was clearly big enough to do the right thing, we drafted an apology for the Council which they found acceptable and then something got in the way of this reasonable solution. Hypocritically for a bloke interested in openness and transparency, he had his lawyers then advise the Council he had changed his mind. And the letter was marked confidential and not to be disclosed to any third party. Come on Peter, we’ll show you ours, if you show us yours.

So, while Mr Hurst wanted access to everything, he wasn't prepared to have his lawyer's letter shown to us, nor to the Industrial Relations Commission which had recommended he apologise to the employees he had wrongfully accused. Not even to the employees of the Council.

And all of this change of heart without any explanation at all and under the protection of confidentiality and privilege. Not very transparent.

Come on Peter, it's now 497 days since you agreed to apologise and we think you should either do so or disclose to us all why you changed your mind.

We have reset the clock on how many days have elapsed since his agreement to apologise and we will run it on our home page until he does.

Maybe people were tired and emotional or it could have been the time of year but it seems we will never know. Someone at Wingecarribee Shire thought it made good sense to give 12 months notice to remove a leaseback car from a member just before the end of the year but when we wrote to challenge the decision those responsible scurried for cover like cockroaches under the fridge when the kitchen light goes on.

One of the great improvements in the 2010 Local Government (State) Award was a provision that if an employee had a leaseback car as a condition of their employment, then they had it forever or until such time as they chose to hand it back. This replaced the standard 12 months notice provision for everyone and separated cars into conditions of employment cars and cars provided for other purposes.

Clause 15 of the State Award provides this protection and even provides examples to assist management work out what all this means - specifically, if the car was offered "as an incentive to attract and/or retain the employee" and "the period the employee has access to the vehicle”. This new clause means that virtually all of our members will have cars as a condition of employment and the longer you have a car, the more entrenched that entitlement becomes.

But someone thought that if they told the member that he didn't have the car as a condition of employment then he could be bluffed and would accept the 12 months notice.

Employees are entitled to expect that they won't be misled or bluffed at a meeting with HR and management of their own Division and told that they don't have it as a condition - particularly when in this case:

• A "Private Lease Back Vehicle" was identified in the ad for the position as something that the Council would "provide you with" if successful.
   
• The letter of offer required the employee to sign a document acknowledging "you have read and accept these conditions of employment" and one of the attachments was the Vehicle Policy Agreement. He did.
   
• He was also asked to sign a document headed AGREED TERMS OF EMPLOYMENT and establishing that the vehicle would be provided and he signed that too.
   
• The subsequent leaseback agreement made after he commenced employment made reference to his entitlement.
   
• The entitlement was supported by aspects of the General Manager’s Internal Practice Note on the process to be followed to remove the car and this process had not been followed.
   
• There was also reference in the Practice Note that "Council recognises that its Private Use Car Scheme constitutes one essential element of its salary and remuneration structures and reflects a general policy which is designed to attract and effectively recruit and maintain the best available personnel…"

But despite all this, apparently HR and management within the Division believe the employee did not have it as a condition of employment. They now recognise that he does. Life is a learning curve at Wingecarribee.

This would have been the first Council to test whether an employee did have a car as a condition of employment. Clearly a wiser head than those involved originally in the attempt to bluff the member has prevailed.

Learn from this. Even though there is strong protection in the Award, sometimes people will try to bluff you. Always seek advice before you agree to anything.

We reported briefly in the December issue about attempts by Singleton Council to remove an entitlement for Indoor Staff to three days concession leave over Christmas/New Year, which they had enjoyed as an entitlement under Council policy since 1984. We stopped the Council removing this entitlement in 2011 and ensured that if they want to do anything at all about it in 2012 and subsequently, they need to negotiate with the unions.

This was a messy dispute. Representatives of the Outdoor Staff thought it made sense to have Indoor Staff forfeit some of these days so that the Council could then provide a similar arrangement for the Outdoor Staff - clearly it didn't occur to anyone at the time that the best way of establishing an equitable practice is to bring everyone together on the better standard.

The Council also mistakenly thought that they could remove this entitlement with a resolution of the Consultative Committee - something the Committee did at meetings not attended by our representative, nor that of the LGEA. Charming.

But our proceedings in the Industrial Relations Commission late last year foiled this and subsequently the Council agreed to reinstate the entitlement for 2011 and think about it again in 2012.

If an employee starts work at a Council and there is a condition of employment contained in a Council policy, then that becomes a condition of employment for anyone employed while ever that policy exists. Having an entitlement under Council policy is the best and longest-lasting way of protecting an entitlement.

Entitlements can only be protected for the duration of an industrial instrument like an Award, or an Enterprise Agreement or even a Council Agreement under the Local Government (State) Award but if you have a council policy, it's very, very hard for a Council to remove it. They can decide that they won't provide it to new employees but it is virtually untouchable of those who already have it.

Please contact the office for advice if you find yourself in a similar situation.