Many, many years ago, Ballina achieved some notoriety in the industry when some wag made a pineapple cake to farewell a colleague. But not just any pineapple cake, as well as being quite delicious, it also made everyone feel remarkably good that afternoon.

Yes, the pineapple cake had been enhanced with some local herbs. Illegal herbs, of course.

But the gig was up because people thinking their work was hilarious that afternoon was a decidedly uncommon sight at Ballina - where the staff was used to working under- staffed and often under-appreciated.

We mentioned in our special HR Award issue in December that there must have been something in the water up the far North coast because there had been a bit of a frenzy amongst some general managers about the nine day fortnight. Maybe they thought the nine day fortnight, like daylight saving, would fade the curtains. Still, out of the pineapple cake and into the water maybe - paranoia can be a side-effect …

Now, Ballina GM Paul Hickey is not your pineapple cake kind of bloke. Busy heading up a Council that struggles to make ends meet, he is perfectly placed as a bean counter to pursue those wasted dollars. He is also nine day fortnight phobic, a condition not treatable by local illegal medication or, it seems, by logic or commonsense.

Over the past few months we have had four issues with Ballina.

First, he unsuccessfully tried to strip a nine day fortnight arrangement from the building surveyors’ team. The problem was that in his memo terminating the deal he conceded “that each of you has made the current flexible working arrangement work and I do appreciate your efforts in this regard.” Unusual, to say the least, to try to remove something when you concede that it’s working but he wanted to do it because of the “significant morale and equity issue” of others not having the arrangement. And as every short-sighted manager knows, if you have different employment conditions, the best way to create the same arrangement for everyone is to move everyone to the less preferred conditions to shut up those complaining.

He has now “temporarily” withdrawn the notice of termination.

Second, he made life hard for one of our members who is a parent with child care arrangements that could only really be satisfied if she worked a shorter day by taking a 30 minute, rather than one hour, lunch. Damn these mothers at work, they apparently have some rights this century! Then he let her take a 30 minute lunch.

Third, he made life hard for a member on maternity leave wanting to return to work under the nine day fortnight working agreement she had worked under for four years preceding the maternity leave – a formal Working Agreement, drafted by the Council, that provided it could only be terminated if “demonstrated that the customer service or operational requirements are not being achieved”.

The Council, having allowed the nine day fortnight to continue for four years was clearly not able to terminate it for these reasons and, after proceedings in the Industrial Relations Commission, accepted a recommendation of Deputy President Harrison for our member to return to work under the nine day fortnight for 6 months to determine whether there were any customer service or operational problems. Put up, or shut up, really.

Finally, he thought it made sense to remove the Christmas/New Year concession leave which the Council had provided every year, without fail, from at least the 1940s “to partly compensate administration, office and technical staff are unpaid overtime during the year.”

A dispute we filed was conciliated by Deputy President Harrison in Sydney on 7 March. The GM and HR Manager flew down for the day (when you are trying to save the cost of three days pay to the salaried staff, sometimes you have to spend some money to do that) and we found the GM's rationalisation of the decision confusing.

Again, he claimed there were people unhappy that they work longer for nothing than others (and they would rather get no days off at Christmas and New Year if that means those that don’t suck as hard miss out too), the Council had reduced income and needed to make some savings and there was an accountability issue about the equity of the three days and because it wasn’t three days off for the equivalent of three days worked, it was too imprecise.

The dispute resumes in Ballina on 8 May. Because we couldn’t understand the GM’s argument, we agreed that the Council would commit it to writing and Deputy President Harrison recommended that the Council and the unions “exchange information” to allow conciliation to better take place on 8 May. All we wanted was a series of dotpoints to better understand the decision and be able to focus in our response but what we’ve got so far is six affidavits from witnesses supporting the removal of the entitlement (including sadly from one of our members) and a 79 point submission by a Sydney barrister which the Council will rely on.

A bit “up yours” to us and the Commission because it means that they are ready to arbitrate if they don’t get what they want in the conciliation and that, to us, sounds like duress and intimidation.

But because the primary obligation under the Industrial Relations Act is to get the parties to reach agreement, we (and the other two unions in support) will do what was intended on 8 May and try to reach some agreement.

We hope commonsense can prevail. The GM is down three nil against us so far and, despite the six affidavits and 79 points from their barrister, he still hasn’t addressed why the Council thinks that it no longer needs to recognise those additional hours worked voluntarily like they have for the past, at least, 70 years. How much do you want for nothing, Paul?

Well, bring in the clowns, because it was the BPB itself, and not any of its staff, that was responsible for the contract requiring the identification by councils of the accredited certifier of a particular application.

No one really knew where the Building Professionals Amendment Regulation 2013 came from. Local Government NSW (the new name for the Local Government and Shires Association) didn’t know anything about it, neither did we, and neither, it seems, did anyone else.

Usually we would get a letter from the BPB advising us of initiatives that might have an impact on our members. This happens because the BPB understands that the overwhelming majority of accredited certifiers are working in local government and it makes sense to get depa into the tent rather than leave us outside. They did it on 19 March with an email to which was attached correspondence about proposed changes to CPD and the Code of Conduct, requesting our input, but for some reason they didn’t do it with the proposed legislative changes conveyed to everyone, without warning, in the BPB Bulletin of 14 March. Check it out yourself and make a submission – BPBulletin 22 March.

The Board thought it made sense to establish contractual arrangement between individual private certifiers and an applicant and a contractual arrangement also between “the employer of an accredited certifier” and an applicant.  At least we assume they thought it made sense, because no one has given us any information at all other than what was contained in the 14 March Bulletin.

The BPB has always operated under the illusion that you can create a level playing field on “certification” activities regardless of whether those functions are carried out by an accredited certifier operating alone, a certifier operating in one of the businesses providing the services, or a Council. But of course you can’t do that because the businesses providing the services are solely focused on those sort of services but councils are qualitatively different organisations with a scope and range of activities well beyond the limited role of those handful of businesses employing certifiers.

And no businesses employ the number of accredited employees that councils do - 23, for example, at Blacktown and a significant number of councils with more than 10. But none of those organisations were asked about the impact of requiring the identification of the name and accreditation number of any employee who is proposed, at the date of the contract, will carry out certification work under the contract”. They should be asked now.

This proposal affects all those councils which don’t provide one employee for the whole job and, given that the ICAC likes the idea that one person NOT carry out all the “certification work under the contract”, we are entitled to ask how much pineapple cake the Board had eaten that day? Something really mind-altering must’ve happened to come up with such a bureaucratically unworkable, time-wasting and frustrating initiative. And one where uncharacteristically the industry parties with an interest in the effective provision of these services were not consulted before the new clause 19A was introduced.

It’s almost like the Board wants to frustrate and distract local government rather than assist.

Neil Cocks is off on a secondment in the Department at the moment and the Acting Director of the BPB is a Dr Gabrielle Wallace. Apparently she has been a building surveyor somewhere or other over the years and we chased her up last week because we hadn’t heard anything back after our email exchange with Neil on 15 March. Here is her response:

From: Building Professionals Board []
Sent: Thursday, 4 April 2013 2:15 PM

Subject: Written contracts

Dear Ian

As you noted in our discussion this morning, the last BPBulletin (26/2/13) contained information on the commencement of the EP&A Amendment Act 2012. It contained interim advice on written contracts, an information sheet and 2 Q&A papers.

The second Q&A paper has details pertaining specifically to councils. Please note there are 3 template contracts, including one for councils. Page 3 of the information sheet noted changes to section 73A of the EP&A Act and clause 19A of the BP Amendment Regulation 2013. The links to the legislation are available under More information on page 4 of the information sheet.

As discussed, we are shortly to release a third Q&A which should address further concerns.


Dr Gabrielle Wallace A /Director
Building Professionals Board
Ph:  02 9873 8543
Fax: 02 9873 8107

We know that many of you responded to our email telling us that we were right, how hopeless the BPB was and we should jam it right up them, but there is no substitute for the BPB being overwhelmed with your responses, rather than sending them to us. They think we are trouble anyway, so it’s better for  councils to be pursuing them about putting this regulation on hold until such time as there is an opportunity for the industry to discuss it with the BPB. Send responses to LG NSW as well.

19A should be amended to leave councils out entirely or to treat them differently.

And as much as we all would like to meet with them, on this occasion they should leave the pineapple cake at home.


Shock results: Drug and Alcohol Trial finds nothing at the same time as Fair Work Australia sets some guidelines

Uh oh, who'd have thought?

In a result which won't surprise those who thought drugs and alcohol at work were not a problem in local government, but will surprise those who believed that they were, the trial of the Industry Guidelines on alcohol and other drugs found no employees tested positive for illegal drugs and only one tested positive for alcohol.

This result explains why the overwhelming majority of councils are not interested in developing drug and alcohol policies and are certainly not interested in the wasted time, effort, cost and aggravation of random testing.

The Industry Guidelines were developed cooperatively by the Local Government and Shires Associations and the three local government unions – the United Services Union, the Local Government Engineers Association and depa - in 2010 and 2011. It was the first time agreement had been reached between the employer and employee organisations over an area of policy which had been studiously avoided or, if dealt with at all, randomly and inconsistently developed.

As far back as 2006 depa had been encouraging the LGSA and the other unions to reach agreement on drug and alcohol policies that would discourage the introduction of random testing. This is a reaction to news first revealed in a Sunday newspaper that Kempsey had introduced random testing without consulting with the unions.


In parallel with the Industry Guidelines trial, two of the local government unions, the USU and APESMA (the Federal organisation of the LGEA) were involved with other electricity industry unions in a significant test case at Endeavour Energy. The case was heard before Senior Deputy President Hamberger in Fair Work Australia.

The Senior Deputy President had already established precedents about the importance of a random testing regime in industries that provide significant amounts of dangerous work (like electricity and mining, for example) using a testing method which actually detected impairment at the time the testing was carried out. Electricity is one of those industries where the unions agree with the concept of random testing because everywhere you go there is 1 million volts waiting to zap you.

This meant the obvious choice needed to be saliva testing, rather than urine testing, which fails to detect impairment at the time of the test but gives you a great idea of what people been doing in their own time over preceding weeks.

The Endeavour Energy case set the following precedents which will be fed into the review of the Industry Guidelines next week:

  1. any PCA/alcohol testing should use the Motor Traffic Act differing prescriptions,
  2. oral testing is preferred to urine testing for a variety of privacy and accuracy reasons and,
  3. there should be no obligation on employees to disclose prescription medication prior to any testing.

These three principles will confront Upper Hunter on the method of testing, Coffs Harbour in particular on the "one size fits all" PCA testing and quite a few councils believing it is appropriate for employees to disclose their medication regardless of privacy. Any testing regime that requires people being medicated for depression, hormonal changes, gender reallocation, sexually transmittable diseases or other treatments which are none of the business of the employer, needs to be resisted at every opportunity.

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