A lesson for all councils from Port Macquarie Hastings - you can’t make employees forfeit their rights to historic employment conditions under council policies
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- Published: Tuesday, 15 June 2021 13:25
GMs can do the darndest things! Port Macquarie Hastings Council has just written to the unions saying that they have frozen an historic entitlement to payment for untaken sick leave. Not that they are contemplating doing it, and are interested in consulting to determine whether this historic practice is one where the Council has a unilateral right to change it, but that they have frozen it. From 11 May, apparently. Without telling the employees affected, nor the unions.
In 1993, John Fahey’s NSW Coalition Government decided that they didn’t like employers and unions agreeing to have arrangements for the payment of untaken sick leave. An odd thing to do, when you think about it, because a great deal of what the government had been saying before that was all about the rights of employers and employees to reach agreement on their employment conditions.
But the Government amended the Industrial Relations Act to prevent the payment of untaken sick leave being included in NSW Awards. This missed the target in local government where if employees have this as an entitlement, they invariably had it under some historic Council policy and as a condition of their employment.
There were some councils which thought that the change in legislation affected contractual entitlements not included in an award as well and tried to strip that entitlement from their own employees who may have had it under a policy or in some other ways condition of employment. Pretty stupid, really.
Bit by bit we were able to convince the councils to restore the entitlement but it was not until an industrial officer of the USU, Brian Harris, launched a prosecution of Murrurundi Shire for trying to remove a policy entitlement thinking because they had misunderstood the legislative change.
Beaten in the first argument before the Chief Industrial Magistrate, the Industrial Court on appeal overwhelmingly found for the union, and provided us all with an enduring principle about those things an employer can change, and those things they can’t.
So, when PMHC wrote to the unions on Friday 4 June saying “the current arrangements in Council’s Termination and Exit Procedure, allowing for the payment of sick leave for employees who commence with Council prior to 10 July 2008, is inconsistent with Section 27 of the NSW Industrial Relations Act”, here was another Council misunderstanding the legislation.
And in a brief discussion, it was clear that the Council had no idea at all how long this practice had existed, when it began and why, whether it was council resolutions creating a policy (which it turns out it was, with Port Macquarie Municipal Council doing it in the 1970s or so) or what. That would have been a good idea before they launched into it.
Again, like Bega Valley, they hadn’t sought advice from anyone who knew what they were doing, and are now doing so, we met to discuss it today, and next month we’ll let you know how this ends. Probably another thank you from a grateful GM for our involvement!
In the meantime, if you’d like to see a Judgement of the NSW Industrial Court that really smashes an employer, here is the link