If the NSW Ombudsman comes to your Council to ask you questions, look out...

Details

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...

“Shoebridge Committee” hands down final report

Details

Published: Tuesday, 12 May 2020 13:20

The Final report of the NSW Legislative Council’s Public Accountability Committee Regulation of building standards, building quality and building disputes has been handed down and here is a link.

The Report contains significant recommendations addressing building certification and encourages the NSW Government “as a matter of urgency to provide the NSW Building Commissioner with new powers to ensure building standards”.

Significantly for us, the Chair observes in the foreword:  

“this report also focuses on the concerns surrounding private certification. It is clear that the experiment of the last 20 years of private certification has not worked. Many participants and stakeholders told the committee that the conflicts of interest inherent with private certification were not able to be remedied. They pointed to years of attempted reforms that so far have failed to restore confidence or integrity in the system of private certification. Others suggested that it was possible to conceive of further reforms to make the system work better. Whilst it is clear that the status quo is broken, and that public control of certification needs to be strengthened, the Committee did not at this stage recommend building certification revert back to local councils. The committee has instead recommended that this proposal be considered in a further inquiry we plan to establish at the end of 2020 to continue to review the NSW Government’s reforms into the building and construction industry.”

Recommendation 17 proposes “the Legislative Council’s Public Accountability Committee as part of its foreshadowed inquiry to review the NSW Government’s reforms into the building and construction industry and consider as one of its terms of reference the strengthening of public control of certification, such as returning certification to local councils.”

Recommendation 18 proposes implementing the recommendations, where practical, put forward in the report by Mr Michael Lambert “to improve the certification system as soon as possible and no later than within two years” and recommendation 19 includes the observations about considering returning building certification to councils as quoted above from the Chair’s foreword.

Let the money flow!

Details

Published: Tuesday, 12 May 2020 13:20

The announcement by the NSW Treasurer and Minister for Local Government on 26 April of $112.5 million to match the Federal Government’s JobKeeper program may have missed the publicity it deserved but it was a revelation for the industry with a cautious optimism about how councils would qualify. It was provided to complement and work alongside the Splinter Award and was a sign that if local government needed financial support, the State Government would provide it.

A lot of councils are desperate for a cash injection to keep services going but it’s clear that the requirements attached to JobKeeper don’t necessarily open the doors to financial assistance for councils. The Government needs to move quickly to announce how the money will be available and the funding needs to be significant and universal.

As this issue of depaNews is published, we’re not aware of any Council confident it will get enough of the $112.5 million and there are lots of GMs pessimistic about getting any.  Neither have we heard, after the first flush when Sutherland dumped casuals from Council services closed by State government proclamation, of anyone stood down in the industry drawing upon the Splinter Award for income maintenance.

We’re all geared up ready, optimistic for easier access to the drastically needed funding to keep services flowing as the restrictions start to come off.

The good news is that the industry has almost universally accepted that it is an essential service and that even those employees who can’t be given useful work in their normal jobs can be transferred across to other areas of the Council’s operations where they can. This has meant, as far as we are aware, continuing employment despite councils encouraging employees to take leave at short notice, or even to start working shorter work weeks.

Next month we should have a better picture of how the money flows and whether the industry has managed to continue to protect the normal levels of employment.

In related news, on 12 May the NSW Parliament is scheduled to consider two important initiatives as part of a COVID-19 Emergency Measures Bill – titled COVID-19 Legislation Amendment (Emergency Measures) Bill (No 2) 2020 NSW.

The first, which is not before time, is found in Schedule 3 Amendment of other legislation where at 3.1 Annual Holidays Act 1944 No 31, the government proposes to allow cashing out annually of annual leave, with protections, and extending the opportunity for long service leave to be taken at half pay or full pay by agreement with the council, to accumulated annual leave.

It will be about bloody time, LGNSW and the unions have been pursuing governments for about fifteen years to allow half pay or double pay for annual leave but both the cashing out, and the double pay will only be available for two weeks of every twelve months. While employees will have more options than they do now, they don’t go anywhere near far enough. Double pay annual leave by agreement will fund superb holidays and other things and dramatically reduce annual leave accumulations at those councils which have failed to properly manage it over the years.

And the second, which seems like a grossly unacceptable restriction on local government’s authority, imposes a limit on expenditure on council administrative buildings above $1 million for the next two years, unless it’s an emergency or maintenance. Cramped, unsuitable accommodation is typical in local government and councils should not be prevented from doing things to provide suitable accommodation for staff to get the job done properly.

And we’re absolutely convinced that one of the reasons Cumberland keeps crying poor and asking staff to sacrifice and forfeit entitlements is that they run two administrative centres from the olden days of Holroyd and Auburn when they’d be much better off in one. And they could stop harassing staff by passing the hat around.

Finally, the Splinter Award has now been varied twice since it was made and there are now only Balranald, Blayney, Broken Hill, Eurobodalla, Georges River, Kyogle, Lake Macquarie, Maitland, Murray River, Northern Beaches, Richmond Valley, Strathfield and Wollongong not parties to it. Goulburn-Mulwarree is not a party but has a more beneficial Council Agreement with the unions.

LG Professionals (sic) to the rescue!

Details

Published: Tuesday, 12 May 2020 13:20

The last time LG Professionals (sic) or as we like to call them, Local Government Poseurs, thought they should get themselves involved in employment and industrial issues did them no favours at all. Not sure at the time whether they were an employer organisation looking after the interests of the boss or trying to be an employee organisation looking after the interests of employees, they retired hurt.

But, LG Poseurs supremo, Narrabri GM Stewart Todd, has now launched an initiative to press GMs and CEOs to forfeit their annual pay increase under the standard contract.

The standard contract provides that senior staff annual pay increases are determined by the NSW Government’s Statutory and Other Offices Remuneration Tribunal like senior executives in the State Public Sector. There is also an opportunity for an annual increase for performance or other reasons.

But the President of LGP confidentially wrote to all GMs and CEOs (whether they were members or not) on 22 April claiming there was a ground swell that:

“Senior Officers, not subject to the Award, should ideally have some consistent and agreed to position. I have been approached by a number of metropolitan and regional General Managers/CEOs who strongly believe that in this COVID-19 climate and as leaders of our respective councils, there should be a wage freeze for senior staff. Given that we apply the NSW Remuneration Tribunal’s SOORT determinations, there has been a lot of reorientations(sic) that collectively we should agree to apply a zero increase for Senior Staff for twelve months, owning it and leading it.”

And that LGP could act on their behalf, you know, just like a union would.

“we are also no different from (sic) our community members when it comes to an expectation for a wage freeze at this time. Again I have had strong representations that this is the right thing to do, and what we should proactively do rather than in reaction to us doing nothing, and of course it would be better if we were united in an approach to this issue.”

Go, Comrade! That’s the way a union operates.

Sadly for the heroes of LGP, owning it and leading it wasn’t embraced wildly by the GMs and CEOs, and of the 93 votes recorded (remember there are 128 Councils), there were only 57 in favour - well short of a majority and effectively just over 40% of all GM’s. And if they intended no senior staff to get an annual increase this year, they should have asked other senior staff as well...

A bit presumptuous really but the President was big enough to acknowledge “there are also those that (sic) shunned the survey and were quite negative about the association even asking the question”. Yes, we agree, get back to doing what you do best...

And some good news for old council certifiers

Details

Published: Tuesday, 12 May 2020 13:20

In our 17 February issue we reported an acknowledgement by the BPB that we had “identified an unintended problem with the current provisions of the Building and Development Certifiers Act 2018”.

This was an “inadvertent” arrangement that would mean Ordinance 4 building surveyors working doing certifying in councils could no longer do so using their existing qualifications.

The advice from the BPB was that this unintended problem would be addressed in the new Building and Development Certifiers Regulation, and it has been.

There is now a “grandparenting” provision for all people who hold accreditation immediately before the rescission of the Building Professionals Act. Clause 23 of Schedule 2 of the Building and Development Certifiers Regulation 2020 provides:

23   Additional pathway—all classes of registration

(1)  In addition to any other pathway set out in this Schedule, a person has the qualifications and experience required to be granted registration in a particular class if—

(a)  immediately before the repeal of the Building Professionals Act 2005, the person held a certificate of accreditation in a category that corresponds to that class of registration, and

(b)  the person has held a certificate of registration in that class continuously since that repeal with no period since the repeal during which the person was not registered that is longer than 3 months or such longer period as the Secretary may allow in a particular case.

(2)  For the purposes of this clause, clause 4 of Schedule 1 specifies which class of registration corresponds with a category of accreditation.

The lucky group enjoying fewer constraints under COVID: developers

Details

Published: Tuesday, 12 May 2020 13:20

While we’ve all been isolated, working from home, taking leave or whatever, it’s been better than business as usual for development and construction. There have been a few positive effects from the pandemic, reduced traffic, no one much getting traditional flu because of social distancing, clear skies, clean water and even a chance to meet our Paris emissions targets.

But proposals by the NSW Government to ease restrictions on construction on weekends and development restrictions won’t be one of those positive effects.

Here is a link to an opinion piece by the inestimable Elizabeth Farrelly in the SMH on 25 April 2020. No one ever says it better.

Local Government State Award 2020 - are we there yet?

Details

Published: Tuesday, 12 May 2020 13:20

The State Award is invariably made late in June for three years and operating from 1 July. We are all used to the idea of pay increases from the first pay period after 1 July and, as we get perilously close to needing to get a final document together, there are significant “in principle” agreed changes already, and only really two issues to finalise.

The USU in September last year convened a roundtable in Parliament House, opened by the Minister for Local Government, and involving everyone with an interest in bullying and mental health in the industry - LGNSW, the unions, workers compensation insurers, Local Government Superannuation, the Office of Local Government etc. Everyone got on board philosophically with the need to dramatically address what was acknowledged to be a widespread problem in the industry.

Unlike the Fair Work Act, the NSW Industrial Relations Act 1996 does not have specific provisions about bullying and the capacity for employees to seek orders preventing bullying. And it seems remiss, in this climate of a greater recognition across the industry, that the State Award doesn’t specifically address bullying either.

We are working on appropriate wording to provide protections for employees in the industry from this pernicious and difficult to manage phenomenon. Bullying can damage employees’ lives just as much as physical accidents and injuries.

And the second issue, is money. Just as there are GMs around the place looking at forfeiting their 2020 pay increases, and thinking that others should do so as well, that influence is being felt by LGNSW when we look at what sort of pay increase there should be from 1 July.

The complication of agreeing to take a fall on salary increases (which are really only economic adjustments catching up for cost increases over the preceding twelve months) in the interests of continuing people in jobs is that money not spent on pay increases isn’t then automatically spent keeping people in work.

And we know of many councils where any savings are just as likely to find their way into improve catering for councillors, and other less worthy spending.

More news, next month.

Local Government (COVID-19) Splinter Award 2020 to be made on Tuesday 14 April

Details

Published: Thursday, 09 April 2020 12:20

The USU yesterday sent a Member Update to all their members advising there would be an application made for a Splinter Award which would provide protections and certainty for employees during this COVID-19 crisis. We were going to wait until Tuesday to advise you all about what it was, what the benefits were and how it was our view it would have limited application for our members.

The application was filed late yesterday by LGNSW, and we’ve now been advised that the Award will be heard at 3pm before Commissioner Murphy in the Industrial Relations Commission on Tuesday 14 April. It seemed prudent to wait until the Award was made that afternoon to send this information to you, but because there is already information out there, we are acting now.

As you know, there are plenty of councils out there where general managers think their only option is to stand employees down because there is no useful work that can be done. This may be due to orders made  by the NSW Government closing pools, gymnasiums, leisure centres, libraries etc but there is no general right to stand down under the State Award and there would need to be individual applications made by individual councils.

We know that there were many GMs frothing at the mouth at the prospect of standing employees down and for the last week and a half, LGNSW and the unions have been developing a Splinter Award to provide some more flexibilities for employees who will remain at work, and salary protections for any who may not.

Our view is that our members are generally protected and it will be unlikely that councils will want to close down their functions because almost everything you do is required to be done by legislation, with appeal dates and requirements about certain things happening within timeframes, and in the absence of some kind of moratorium by the NSW Government on those obligations, the work will simply have to be done. Phew.

We know of some members who reckon they’ve got nine months’ worth of planning to do but it does seem highly probable that everyone else will be protected, certainly for the life of the three months lockdown currently being managed by the NSW Police.

The Splinter Award will be made by agreement of the Award parties - LGNSW USU, LGEA, the Nurses and depa- on Tuesday afternoon and the only issue not yet known is which councils will be opting in so that the Award applies to them and their employees. We won’t know that until Tuesday morning, so in a perfect world it would have been smarter to keep this information until then. As we know, we’re not operating in a perfect world.

Here is a link to Splinter Award application, remembering that there are no councils yet listed in what is described as “Schedule A-Employers Covered by this Award”, but what the Award does is this:

1. it will operate for twelve months from the date it is made and only in relation to decisions made responding to the current pandemic.
2. Clause 10 allows employees to be directed to carry out suitable alternative duties, consistent with the current arrangements and ensures that appropriate payments will be made.
3. 3 allows the employer and an employee to agree to the employee taking accrued annual leave at half pay, and
4. 4 allows employees with less than five year’s service and the employer’s consent to take long service leave in advance.
5. Clause 11 regulates employees working from home, which is everyone’s preference if it is practical (hurry up to those councils who are dawdling!)
6. Clause 12 starts the critical provisions in what is described as ”Part 6-Close Down”.
7. 1 requires the Council to explore suitable alternative duties if “normal duties at their normal place of work” are not available.
8. Clause 13 “No Useful Work applies only to permanent full-time and permanent part-time employees and only and if the employer “has no useful work for employees” (as we say, something councils will find difficult with our members) then employees can be temporarily stood down but only under certain conditions.
9. 3 requires any employee stood down or partially stood down to be paid “COVID-19 special leave at their salary system rate of pay for four weeks” or until useful work can be provided.
10. 5 regulates how COVID-19 special leave is taken.
11. 10 provides that a special rate of pay will be paid for an employee who remains stood down or partially stood down. The special rate is $858.20 and is payable for up to 3 months.
12. And 13.12 allows that employees can apply to have the $858.20 supplemented with accrued annual or long service leave, to bring it up to their ordinary pay.

That’s the most useful summary we can provide and we remind you all that you can only be stood down where the Council “has no useful work for employees”.

The Splinter Award does not affect the rights of employers, consistent with the Local Government State Award 2017, to give employees notice of a requirement to take excess leave.

We will send you a further depaNews like this on Tuesday afternoon after the Award is made so you know which councils are to be covered by it.

And we also remind you that if a Council contemplates standing down our members, and it’s clear there is useful work available, we will nail the bastards and prevent that happening.

Here is a link to Splinter Award 14 April.

Link to Minister's letter 22.10.20

Link to our reply 23.10.20

Local Government Poseurs want to stand you down –

Details

Published: Wednesday, 01 April 2020 12:49

“Let me at ‘em”

Yesterday, amongst three videoconferences with the other parties to the State Award trying to resolve the 2020 Award, we wrote to the Minister for Local Government and the Office of Local Government.

In the Award negotiations there had been a general discussion about what appeared to be a lack of action by Government to respond to the COVID-19 crisis in local government (something more positive than the more bloodthirsty general managers who keep shaking their fists at LGNSW demanding the right to stand staff down) so it seemed a good idea to write to people critical to the financial survival of local government.

It seemed obvious, although it hadn’t been explicitly said by the Prime Minister on Monday afternoon announcing the “JobKeeper” $130 billion package, that local government would struggle to get any of the wage subsidies being funded. We knew that the State Government looked like keeping all of their staff on normal pay, even if they had nothing to do, or twenty days special leave if they needed to mind their kids, as part of a process of riding the crisis out. But local government looked like it had fallen between the cracks.

Amongst other things we said:

Something needs to be done and it needs to be done by you two. Why can’t you do things like this:

• whatever is required to make available councils’ financial reserves/”unrestricted assets”,
• provide grants to continue employment to encourage councils to initiate “shovel-ready projects” and provide meaningful work to employees across the state as well as making improvements to local communities and community facilities,
• commit to allowing councils funding continuing work and services to the community with the guarantee that these monies can be recouped with rate levels beyond the pegging limits,
• pursue the Federal Government to extend JobKeeper to local government - which, as businesses, can satisfy the requirements,
• do whatever is required to encourage councils to retain their staff levels and services to the community with the authority that only the Minister for Local Government can provide, and
• find ways to ensure that local government employees can be guaranteed the protections of special leave where a workplace is closed “to be paid as normal and are (sic) placed on paid special leave”.

But while we were busy making suggestions aimed at keeping everyone employed and doing all those good things that councils do, the infamous Local Government Professionals (sic – AKA Local Government Poseurs) were off on a different tack. The Poseurs’ President Stewart Todd, almost at exactly the same moment that we had emailed our letter to the Minister and OLG had emailed out a “PRESIDENT UPDATE” (sic) to his “Fellow General Mangers”(sic) advising that he had flagged their intention to have LGNSW apply to the Industrial Relations Commission to include stand down provisions in the Award and make a variety of other changes making it easier to change people’s hours, reduce their hours or force them onto leave”.

Not quite the same approach that we and the other unions are looking for. LGP had an online meeting of GM’s which apparently had some “generally agreed” positions. And while they mention stimulus packages and other options for local government, it’s the reality that the only immediate idea they have is to stand down staff and reduce their hours of work, that reveals LGP at its most depressing.

You can read what should have been described as a “President’s Update” (and we’re always happy to give Stewart advice on his grammatical and spelling skills) but it’s the final paragraph that is so appallingly hypocritical:

This is not a time for local government stakeholders to be obstinate in their thinking and position - all involved will need to make sacrifices - we are all in this together.

Are we? The sacrifices needed to be made won’t see the GM’s stood down, only those well below them out there being seen in the community providing services.

COVID-19 update

Details

Published: Wednesday, 01 April 2020 12:49

LGNSW and the three unions, the USU, LGEA and depa, have published two Joint Statements as a guide to the industry - one on 17 March and a Revised version on 20 March.

We expect these Joint Statements will continue and so far we’ve seen councils that have responded quickly and decisively to the need to get those who can be working from home, working from home, as well as councils stumbling around and failing that challenge - Clarence Valley, for example, has done little more than warn their staff not to travel between the two Council offices, and to prevent people opening the windows to get in some fresh air. Always a laggard, Clarence needs to move much, much faster.

One of the USU’s big issues in the current award negotiations is the need to survey and establish levels of casualisation in the industry - especially the misuse of “casual” arrangements of people who really are doing systematic and regular hours and are more appropriately described as permanent part-time. The IRC in proceedings directed all councils to supply this information and one of the councils which has failed to comply with the direction is Sutherland. The sort of occasion when you regret that there are no penal provisions in the Industrial Relations Act.

And it eventuates that at Sutherland last week they planned to advise more than 300 employees they classified as “casuals” that there won’t be any more work offered. Obviously councils need to work out what to do about workplaces like swimming pools, gymnasiums and leisure centres when the Government has closed them down, but the heavy-handed approach taken by GM Manjeet Grewal entirely ignored that many of the 300 staff had been employed for five, ten and even twenty years and were not really casuals, but permanent part-time employees who would be entitled to redundancy payments.

And this is the same GM who thought it appropriate, on receiving a request from us through their HR people to focus their attention on having those who can work from home, working from home, thought it appropriate to approach our local delegate (who was unaware of our email) and walk him up the street and point out the queues outside Centrelink - something the GM asserted she was avoiding but then, only two days later was sprung sacking all her casuals! Lovely. A handful of degrees but none of them remotely involving caring or compassion.

We are interested to hear from members at other laggard councils so we can assist in getting people working from remote locations and away from cramped and higher risk offices. Let us know.