Living with WorkChoices: full steam ahead into the fog

 

Nothing clear about councils and WorkChoices

As we emerge from the holidays and 2007 proceeds, councils still remain uncertain about whether they are, or are not, constitutional corporations and therefore whether they fall under the new Federal industrial relations legislation, or not.

The High Court did not decide this. In a dreadful decision (largely the effect of 10 years of Coalition appointments) the Court simply decided that the Corporations power of the Constitution could be used to regulate employment by corporations. And why wouldn't they? This is the most conservative High Court in decades.

What they didn't decide was how to determine whether a business is a constitutional Corporation or not. There are no guidelines about the number of employees, or the percentage of time, or the proportion of activities that need to be involved in "trading" before an organisation can be regarded as a trading Corporation.

Some councils have already asserted that they are and lots of lawyers are enthusiastically lining up to encourage them into the Federal legislation - with their assistance, of course - because it is impenetrable and overly-complicated legislation, drafted by lawyers and requiring even more lawyers to operate. A handy paperweight or doorstop, the Federal Act and Regulations are five times thicker than the New South Wales counterpart. So much for simplifying industrial relations.

While some councils, like Great Lakes, are gung ho about the option of going Federal, most are sitting quietly and wondering what to do. One of the reasons that the Local Government and Shires Associations opposed the new Federal legislation was that it was far too complicated and it would end in era of cooperation between the unions and councils that has done everyone proud.

Here are some frequently asked questions: (back)

1 What about the Australian Fair Pay Commission (AFPC) increases?

The AFPC resolved that employees covered by NAPSAs (the Local Government (State) Award is a NAPSA as far as the Federal legislation is concerned) should receive an increase of $22.30 a week for 35-hour week employees. We reported on this briefly in the December Bulletin.

The LGSA has advised councils in their General Circular that they can absorb the AFPC increase into the 3% increase paid under the Award/NAPSA because "the increases in the Local Government (State) Award were not determined by the Commission wholly or partly on the ground of work value change." They say that they have had legal advice to this effect.

We think this is wrong. Clause 40(x) of the Award says "The increase in rates of pay provided for in this award reflect consideration of the work value changes; productivity improvements; local government reform and community movements." If the LGSA as a party to the Award in November 2004 believed that the increases agreed to be incorporated in that award reflected, "work value changes" then, unless that was a porky, the Commission's decision to make the Award (or determine it, if you like) must have been based on "partly on the ground of work value change".

The LGSA will be hoping that none of us choose to test this advice. But if a council asserts it’s a trading Corporation, and therefore falls under WorkChoices, then it needs to be tested. The three unions have all had advice encouraging the testing of this flimsy assertion and the only real question is which Council will be targeted.

2 What will happen to the Local Government (State) Award?

As there is no test for trading corporations (and with such a conservatively constituted High Court, why would we want to go back there?) no one can be sure if they are right or wrong in asserting whether a Council is or isn't. Regardless of those that think they might be, there will be a considerable number of those that are definitely not.

Those councils will remain covered by the State Award (or an enterprise agreement) under the New South Wales system. Most will remain under the Award. For that reason there will be an Award to operate from 1 November 2007.

The USU has filed an application for a new Award which claims minimal changes - sensibly choosing to target pay and allowances. This application is listed in the Commission on Valentine's Day this week. How romantic is that! As a party to the Award and to this new application, depa and the LGA will be involved in these discussions and advancing our own claims - just as we always have. A number of dates in March have already been agreed between the LGSA and the three unions for negotiations.

The New South Wales Commission has already shown itself to be very enthusiastic in acting to ensure that employeescovered by New South Wales awards have continued protection. If there remains one council to be covered by the Award then the Commission will ensure that a new State Award will be made.

The 2007 Award will also be a useful frame of reference for any other negotiations that take place in the industry.

3 Have we given up on the strategy of changing the Local Government Act?

What could have been so simple now seems little more than a forlorn hope or a lost opportunity. The Ministers for Industrial Relations and Local Government as long ago as February last year offered to protect Council employees by changing the Local Government Act and having the general manager as the employer instead of a Corporation. Therefore, of course, the question of whether the employer is or is not a corporation doesn't arise.

While this option was attractive to the New South Wales government (after all they had already been pressed by public sector unions to do this for New South Wales Government trading corporations like Area Health Authorities, the Sydney Cricket Ground Trust etc and keep their members away from the Federal legislation), UnionsNSW, government and ministerial staffers, depa and the LGEA, none of us were able to convince the USU that this was a good idea. We think this will be a decision the USU, and therefore the rest of us, regrets.

Had we all agreed to this course of action, then the legislative changes would have occurred last year and we would be sitting down to discussions for a new 2007 Award that would continue to cover the 145 or so councils without any issue or any impact from WorkChoices.

4 Are any councils doing anything yet?

Great Lakes has already had registered a Federal collective agreement between the Council and the Councils’ directors. This was entered into as an individual collective agreement without a role or any input from the unions. It does little more than sell off paid maternity leave in return for an increase in salary. We think this a ludicrous and short-sighted thing to do.

At least the Council doesn't boast that this is a social advance but we wonder, when any of the old blokes covered by the agreement retire, how the Council will attract any women candidates? Still, there are some old-fashioned people out there who continue to believe that the best person for a job is always a bloke.

Nambucca has commenced discussions with the unions for what will be a union collective agreement for directors and managers. We have already reported this and we participated in discussions in Macksville on 31 January. When we reported that Nambucca had started individual negotiations we didn't mean negotiations with individual employees - we meant that the council would have an individual agreement for that Council with those staff. Sorry about the confusion. (Happy now, Jo?) The unions and the Council have not yet decided whether this will be a Federal or New South Wales agreement.

Baulkham Hills started discussions with the unions in late 2006 and the general manager and the unions have now jointly published a commitment that the Council will provide an increase of 3.5% for all staff from November 2007, no individual contracts, no reduced entitlements etc. Baulkham Hills will become a model which we would like to see adopted by other councils as the year progresses. The General Manager has given many undertakings already about protecting existing entitlements, rejecting individual AWAs, improving flexibility in employment etc because the general manager understands that to be competitive in a skills shortage, you must have people want to work for you.

Sydney Council has also started discussions with the unions with a view to sensible pay increases over the next three years and the consolidation of existing awards and agreements into one. We are hopeful that the superannuation co-ontribution agreed between the unions and the Council in 2004 but not implemented for the most ludicrous of the reasons, can be revived and incorporated into this new agreement.

5 Do we still want councils to sign Referral Agreements?

Of course we do. A referral agreement between the Council and the unions will allow us continued access to the New South Wales Industrial Relations Commission. Almost half the councils in the State have signed referral agreements and here is a current list:

Metropolitan	Northern	Southern
Ashfield Auburn (General only) Bankstown (General Only) Blacktown (deed) Botany (deed) Holroyd Kogarah Leichhardt Marrickville Rockdale Sydney City Waverley	Ballina Bellingen (Unfair only) Bourke Brewarrina Byron Bay Cessnock Cobar Coonamble Dungog Gilgandra Guyra Gwydir Kyogle Lake Macquarie Mid Western Regional Muswellbrook Narromine Newcastle Richmond Valley Singleton Tenterfield Upper Hunter Uralla Walcha Warren Warrumbungle Wyong	Bathurst Bland Boorowa Broken Hill (deed) Conargo Cooma-Monaro Cootamundra Kiama (General only at present) Lachlan Leeton Lithgow Murray Orange Palerang Shellharbour Upper Lachlan Wollondilly

If your Council is not on this list, you should have your delegate find out why. You should also agitate for it locally.

6 And what about Common Law Deeds?

Some councils have already signed Common Law Deeds. This is a contractual arrangement between the unions and the Council and it provides rights to members of the unions. The Deeds generally attach the Award.

There are some issues about the enforceability of these documents because any breach of them has to be prosecuted under common law rather than specialist industrial law and heard by "normal” Judges rather than members of the Industrial Relations Commission who specialise in industrial relations and employment law. Notwithstanding this limitation, a Deed is better than a Federal workplace agreement.

7 Wasn't life more "relaxed and comfortable" without WorkChoices?

It certainly was. And when we use the Prime Minister’s famous expression "relaxed and comfortable" we know that when he wanted an Australia that was relaxed and comfortable he really meant relaxed and comfortable for employers who wanted to be bad employers. That's why he introduced legislation that can bankrupt unions and can prevent employers and employees reaching agreement even on the content of things that they want in their own workplace.

As colourful as our language can often be, how can we better the Prime Minister's own colleague who described him as a "lying little rodent"? Even we would refrain from saying that.

October 2007 will see a Federal election. No one should be surprised that depa, along with all other unions and organisations interested in the welfare of employees at work, will be saying vote that for someone who will rip up WorkChoices.

It's time to go Peter, Part III (back)

Speaking of the unwanted, what's happened to Peter?

Nothing has happened since information conveyed in the December Bulletin. Ex-councillor Woods remains The Chair of the LGSS but with the expectation that the Shareholders will meet in February and vote for changes to the Constitution that will see him out of the role of Chair by the end of March.

But, as we circulate this Bulletin to members and place it on what ex-Councillor Woods has described as our "tinpot union website", you can never be entirely sure. He agreed to go in July 2001 and didn't. He agreed to go in September 2006 and didn't. We look forward to him being gone by 1 April, that most appropriate of dates.

 

depa Golf Day on 9 March oversubscribed in minutes! (back)

24 teams will tee off at Blackheath Golf Course for the depa golf day on Union Picnic Day on Friday 9 March. Results and blackmail photos in the March Bulletin.

 

Kerry Hunt

President

 

Ian Robertson

Secretary