Upper Hunter lets the dogs out

 

Candidates for the position of General Manager undergo merit appointment process at Upper Hunter

 

Sometimes things just slip under your guard. Even though we hadn't been consulted when Upper Hunter Shire Council introduced its drug and alcohol policy a few years ago, nor when they reviewed it last year, we knew there was some extremism at play. Without having seen the policy, we thought the extremism was the introduction of random drug and alcohol testing - something we don't like because it fails to properly target workplace risk and too often can pick up employees who are working well and enthusiastically and not doing anything wrong or creating risk.

(And it's hard not to make the aside, because often we see councils that take ages to do the simplest of tasks, many think this is an industry crying out for some performance enhancement.)

depa has had a policy for years that we are opposed to random drug and alcohol testing and, after we filed disputes with Hornsby, Sutherland and Wollongong about policy issues generally, we were pleased when the USU took up the challenge. As a result, through 2009 and 2010 the three local government unions and the Local Government Association and Shires Association developed Industry Guidelines, agreed by the peak employers organizations and the three local government unions in an admirable consensus, for the guidance of the industry.

The Guidelines in their final draft form were concluded last year with the intention that there would be a trial roll-out with a sample of councils. Caught up in negotiation of the 2010 Award, the timetable slipped and the roll-out will occur this year.

The value of the Industry Guidelines is that they discourage random testing and encourage saliva testing as the preferred method for post-incident or reasonable suspicion testing.

The attractiveness of saliva testing is that this is the preferred method used by the NSW Police on the roads because it picks up recent drug use and not something you may have done socially two weeks earlier. Urine testing opens a window going back a number of weeks, fails to distinguish between something you did on the weekend or your holidays and something you may have done before you came to work. It is an ineffective predictor of workplace impairment.

And the Australian Industrial Relations Commission in a major test case preferred saliva testing precisely for these reasons.

But if you want to know what people do when they're not working for you, because you are nosy, have no respect for people's privacy, are unhealthily and pruriently interested in other people's private lives, are some sort of degenerate or anti-drug zealot and want to know what your employees have been doing recreationally, or on holidays even, then you test their urine.

Which is exactly what Upper Hunter does.

They also claim to have the right to incorporate drug and alcohol testing using a urine test in pre-employment screening. We don't believe there is a common law right for employers to do this (and are seeking advice) but even if they make it voluntary, testing provides information on personal behaviour and medication which is none of the business of a potential employer. How can that be a consideration in an appointment required by the Local Government Act to be based solely on merit?

Upper Hunter tests short-listed candidates for essential criteria

In the last two weeks we filed two industrial disputes about drug and alcohol policies. The first (IRC133/2011) was listed before Deputy President Grayson on 18 February and was filed to seek the Commission's assistance to oversee the roll-out of the trial of the Industry Guidelines and assist the parties review them. On that day, the Commission issued a Statement supporting the Industry Guidelines, commending the parties on their initiative to assist councils in observing their obligations under the Op of occupational Health and Safety Act to maintain a healthy and safe workplace.

In particular, the Commission chose to make an observation supporting the decision of the parties to encourage saliva testing rather than any other testing method because that method detects "recent use as this is likely to be more reliable in detecting whether an employee is unfit for work and avoiding DNA testing methods that unreasonably intrude upon the private/personal affairs of employees."

The second (IRC155/2011) was listed on 23 February and was filed to target councils in the Hunter Region which were appearing to reject the Industry Guidelines and develop something more offensive and intrusive - in fact something that did, in the words of the Commission, "unreasonably intrude upon the private/personal affairs of employees".

This dispute was filed with 11 councils which had individually failed to respond to a letter from us asking that they hold off on developing any policy until the Industry Guidelines were rolled out. After the notification, we removed Lake Macquarie because they were happy with a policy they had negotiated with the unions years ago.

But it was in preparing for the second dispute that we discovered the full horror of the Upper Hunter policy.

On 23 February the Commission recommended that the Hunter Councils consider holding off on the development of their own policy until the Industry Guidelines were rolled out in the trial and that they also, if they are genuinely enthusiastic about this issue, volunteer their councils to participate in the trial. The parties to the Industry Guidelines would be quite happy to have the entire trial run with a sample of Hunter Councils.

The recommendation made excluded Upper Hunter - which made it abundantly clear that they had no interest in opening their mind to the Industry Guidelines. Well, not yet.

We reject the view expressed by Upper Hunter that the system was introduced consultatively and with the support of the workforce and the unions. And how do individual employees say no at a local level face-to-face with the anti-drugs zealotry of management? That would be, as Sir Humphrey famously observes, a courageous decision.

While this Council argues that this is how it operates in the mines, and they are surrounded by them, since when does a proximity to someone else's risk mean that you share it? Maybe they think it's like passive smoking.

We hope the Hunter Councils (excluding Upper Hunter) positively respond to the Commission's recommendation and invitation to participate in the trial and we can get the trial operating and review the Guidelines comfortably this year.

We will be dealing with Upper Hunter separately. Shortly they are to advertise the position of Director of Environmental Services. They have an obligation under the Local Government Act to make this appointment based on merit but regardless of how good a candidate you may be, you could be struck out in a pre-employment medical by considerations that have absolutely no bearing on your merit as a candidate or your ability to do the job. If you do apply, and they send you for a pre-employment medical, make sure you have been living like a yogi for the three weeks before the medical. And then refuse any random test after you are appointed and we will back you up.

(As another aside, our delegate at Upper Hunter has been “random” tested five times in the last 18 months. All negative, of course, but at a considerable cost of the Council and with ratepayers money not targeting immediate risk or dealing with it in proportion to that risk.)

 

Division of Local Government wakes up
to tell us not to worry

 

In the August issue of depaNews we reported that we had written (our letter of 25 August) to the Department of Local Government requesting the review of the anti-discrimination provisions in the Local Government Act. These provisions were drafted in 1993, had not been reviewed, and specifically required councils to act to eliminate discrimination in employment "on the grounds of race, sex, marital status and disability".

Our concern was that since 1993 the Anti-Discrimination Act had made unlawful a number of additional areas of discrimination (in particular, being discriminated against because of an employee’s responsibilities as a carer) which were not acknowledged in the Local Government Act and, because section 346 provides that in the event of any inconsistency between a Council’s EEO management plan and the provisions of the anti-Discrimination Act, then the Council’s management plan prevails. We thought this had the potential of rendering invalid those areas of unlawful discrimination included in the Anti-Discrimination Act since 1993

We said in August that because the Division of Local Government likes to put the clock on local government performance, we would put the clock on them.

Our letter was dated 25 August and their response to us was dated 9 February and without getting too particular, that’s just over 23 weeks - or about 115 working days. Just as well the Minister’s Committee on Women in Local Government encouraged them to be quick about it!

Anyway, they tell us that we were wrong and that we needn't worry. See their response here.

 

BPB reviews conflict-of-interest provisions
for Council accredited certifiers

 

Well, we are reluctant to get involved in this debate too heavily because observations we made last year about the inappropriateness of a Council assessing its own development applications drew some criticism. Some of it was very vigorous - we had no idea how things work in the bush, we didn't care about how council costs would blow out if they had to get someone else from another council to come and look at the job, etc.

We understand now that it is cheaper for a Council to use its own staff to assess its own applications and certify their employer complies with the conditions of consent. We think it still makes the industry vulnerable to attacks from private certifiers who we complain are prejudiced when they accept money from the people for whom they are doing the job.

We also know that there are employees in the industry who would welcome prohibition in this area because they had been pressured to approve and certify things they would have rather not approved or certified. It's a bit of a two-edged sword really.

The BPB has temporary guidelines in place and has written to all councils, and e-mailed every council employee who is an accredited certifier and put five options:

Option 1: No exemption for any council

Option 2: Exempt regional and rural councils only

Option 3: Exempt all councils (for work) up to a certain value

Option 4: Partial exemption to allow councils to act as the Principle Certifying Authority

Option 5: Existing exemption (permit Council accredited certifiers to undertake Council and council employees’ certification work), or

Option 6: Another option.

The Committee of Management considered this potentially no-win question at the meeting on 11 February and we will be advising the BPB that we believe it appropriate for Council employees to certify applications filed by other employers of the Council and that, when it comes to assessing and certifying the Council’s own Development Applications, we encourage regional cooperation to ensure the proper management of conflicts of interest.

 

It's not too late for a game of golf at our Union Picnic Day Golf Day on 11 March

We’re close to full but could handle eight or so more members interested in a great day at Blackheath and some good company. An ability to play golf is only a desirable, and not an essential, criteria.

Ian Robertson
Secretary