An update on WorkChoices developments

40,000 March in Sydney (back)

40,000 Sydneysiders today marched against Workchoices as part of the ACTU Day of Action. depa members also participated in the rallies held at two Sydney sites and the march. In Melbourne, current Federal Opposition Leader Kim Beazley promised to tear the legislation up.

Employer representatives like Peter Hendy from the Australian Chamber of Commerce and Industry was delighted that attendances were down from the high figures set previously in Melbourne. He described it as a "fizzer". But was it? Most of us remained at work. That didn't mean that we don't support the campaign nor does it mean that we think WorkChoices will provide opportunities for employees to maximise pay levels, increase flexibility and balance with home and work or that we think the killing off of unfair dismissal laws is a good idea.

The Federal Government and reactionary employer representatives like Hendy are mistaken if they think that 40,000 people marching in Sydney is a sign that we don't care any more and that we will happily wait for councils to now start doing the sort of things that the Commonwealth Bank has announced it has in store for its employees.

High Court decides WorkChoices is constitutional (back)

The majority decision of the High Court on 14 November resolved that the Federal Government’s WorkChoices legislation was constitutional. As soon as the decision was announced we advised members that we would be considering the implications of the 400 plus pages, taking legal advice and, well, hoping for the best.

It doesn't take long to read the brief summary published by the High Court to know that the case was lost. There is no comfort (apart from some brilliant observations by the two judges in the minority) provided by ploughing your way through the 400 pages of the Decision.

Regrettably the Court decided that, not only was WorkChoices constitutional, but there were opportunities arising from the corporations power for a Federal Government to do a range of things that had not even been canvassed in the case before it. Only time will tell how fully the Government embraces this encouragement. What, for example, could flow from the Court deciding that "town planning" could be regulated under the corporations power of the Constitution?

Cripes, and we thought Craig Knowles and Frank were bad.

The challenge to WorkChoices by the Labor State governments allowed the LGSA and the unions to encourage councils to sign up to section 146A agreements to continue to allow disputes and unfair dismissals to be processed by the New South Wales Industrial Relations Commission. It gave everyone some breathing space to contemplate the complexities and inflexibility of the federal system and look for alternatives.

It provided time for many employers to accept that industrial relations laws that encourage "protected bargaining" - where employers can lock workers out and employees can be on strike indefinitely with no role at all for an independent Industrial Relations Commission to get people talking or back to work, are not a particularly good idea.

Certainly not the way we've done things in Australia for the last 150 years.

We know that there are many Human Resources Managers (for want of a better description) and some general managers too who are keen to get their hands on the options that WorkChoices provides them. Don't have any illusions that these people want to make your lives more rewarding or enriched. This can only be trouble.

Do we get the Fair Pay Commission pay increase? (back)

In the good old days when there was no doubt and local government employees received increases either under the State Award or a specific enterprise award or agreement, councils were exempted from paying National or State wage increases because the increases in our own Awards or agreements were better.

Not so in the brave new world of WorkChoices. Part of this legislation saw the establishment of the Australian Fair Pay Commission - charged with the responsibility of doing what the National Wage Case did but without the input and economic argument usually put to the Australian Commission. The cynics amongst us understood also that if the strategy of WorkChoices was to make Australian employees internationally competitive and this required a reduction in pay, then the AFPC was responsible for doing that.

How surprising then that the AFPC decision on 26 October provided increases of $27.36 per week in all pay scales up to and including $700 per week and $22.04 per week in all pay scales above $700 per week. Even more surprising to many was the AFPC decision to reject the submissions made by the LGSA that any increase handed down should not apply to local government in New South Wales. Particularly to the LGSA.

But the AFPC decision does apply. On the face of it, all employees covered by the old State Award should receive the increase. This shocked the LGSA (and the local government unions too) and the LGSA made a submission for councils to be exempted from having to pay the increase - even though the Decision did not contain a provision for exemptions or mechanisms for absorbing the increases. And they made this application knowing that the AFPC had already rejected the request to be exempted when they appeared before it on 28 July.

As parties to the Local Government (State) Award, the local government unions in New South Wales were also asked to express an opinion. The USU continues to maintain that no councils are trading corporations and therefore they believed "any debate concerning the application of the 1 December 2006 AFPC increase is somewhat academic and unnecessary".

Unfortunately neither the LGSA nor the USU submission thought it appropriate to discuss whether there should be a common approach between all the organisations party to the Award.

Our submission, and that of the LGEA, argued that the AFPC should not exercise any discretion and that the increase should apply to everyone. We made no observations about whether councils were trading corporations or otherwise, a submission simply saying that as the APC had already decided that it should apply, then it should apply and it wasn’t up to us or even the AFPC to make a decision about who was or who wasn't.

In our submission we argued that there were acknowledged skills shortages affecting our members and the increased payment would assist attracting and retaining employees. We also argued that if it was to apply that it should apply to everyone on a rate of pay in a salary system and not (as some scurrilous lawyers are currently arguing) just at the bottom entry-level. And paying it at some councils and not at others would destabilise the industry as employees would move from council to council chasing the money.

Importantly, we reminded the AFPC that we thought it disingenuous at best for the LGSA to argue that the imposition of the payment would create a $45 million "black hole" that had not been budgeted for by councils. We reminded the AFPC that the contribution holiday operating to the advantage of councils in the defined benefit scheme of the LGSS, had in this financial year provided cost savings the councils of around $42 million.

On 29 November we were advised that the LGSA request for an exemption on the grounds of economic hardship had been rejected.

There are a number of implications here. Firstly, councils have benefited from the surplus in the defined benefit schemes since 1999 to the extent of around $550 million. None of that money has specifically been paid to employees other than indirectly if councils ignored the advice coming from the LGSS and simply spent the money as part of general revenue. At last, employees in the industry will get their hands on some of the surplus.

Secondly, while we think everyone on a pay point in a salary system should get the AFPC decision from 1 December ($22.30 to 35 hour week employees earning about $700 a week) the LGSA is seeking urgent advice to prevent the payment of that money to as many people as possible.

What would be the smart thing for councils to do now? (back)

Budgeted or not budgeted, the smart thing for councils to do now is to support the offer made by the New South Wales Government as far back as February to quarantine councils entirely from WorkChoices. We can understand why the LGSA doesn't like this proposal. They are, after all, a peak body of councillors, not general managers or Council managers. They look after the interests of councillors, they say local government generally and everyone within in, but their primary responsibility is the interest of councillors.

The proposal, as simple as a stroke of the pen, would see the Local Government Act amended to make the general manager the employer and not the corporation.

This legislative amendment has been our preference, that of the LGEA, the Minister for Industrial Relations and UnionsNSW since we started talking about options in February. Unfortunately, the USU does not yet support this approach.

The USU view is that they would rather take their chances fighting off WorkChoices than to have more powerful general managers. Apparently this is a commonly held view within the USU though when we talk to our members, and anyone else for that matter, no one really sees that as a problem. General managers have effectively been in charge since the 1993 Act and regardless of how powerful they are, and how they might choose to exercise that power, we would still have the force of the State Award and our ability to challenge unfairness in the New South Wales Commission just like we had done for decades.

Negotiations are continuing. We can't understand why it is only USU members afraid of this proposal. If any of you think it sounds like a bad idea, can you please ring us and let us know why?

When will we know if we get the $22.30? (back)

On the face of the 26 October AFPC decision, you should get it on 1 December because that's the date the AFPC determined it should be paid. And having rejected the LGSA's argument of economic hardship, there should no longer be any doubt. But there is.

We expect that the LGSA will finalise their attitude to this and whether there are loopholes that allow them to minimise the impact of this decision next week. And then we will let you know what's going on.

In our next issue …(back)

We will send out a December Bulletin to update everyone about WorkChoices and the AFPC increase in the next couple of weeks. That issue will also deal with:

And we’ll wish you all a good Xmas and fingers crossed to avoid the horrors which could await us under WorkChoices in 2007.

 

Kerry Hunt

President

 

Ian Robertson

Secretary