Etheridge and protection from Federal industrial laws
As foreshadowed in the August bulletin (e-mailed to members on 29 August) representatives of the LGSA and the local government unions have now met to discuss the impact of the Federal Court's decision finding that Etheridge Shire Council in Queensland was not a trading or financial corporation.
While the LGSA has not yet expressed a formal view, the industrial relations specialists at the LGSA were all surprised at the Federal Court's decision. The conventional wisdom had been that if any council was going to be found to be a constitutional corporation, then it would be Etheridge. Clearly, the decision requires those councils which believe they are trading corporations to review that opinion.
The LGSA is not alone in this view. Maddocks Lawyers, a popular source of industrial and legal advice in local government, has advised councils that whether they like it or not, the Federal Court decision is now the most recent authority on the status of local governments. Maddocks issued a cautionary note about the Federal Court decision "as it may be appealed to the High Court of Australia".
We have a different opinion here - it's hard to imagine which of the parties to the proceedings in the Federal Court would want to file an appeal to the Full Bench of the Federal Court in the first instance – let alone the High Court. The Council itself is now de-corporatised and for them the question is irrelevant, the Queensland Government de-corporatised councils to keep them out of the reaches of Federal industrial relations law anyway, the Transport Workers Union won the case and the Federal Workplace Authority is now operating under a new Federal Government. Hard to find a likely appellant there.
This is an important issue for all local government employees because this will determine whether we continue to have access to the NSW Industrial Relations Act and the more user-friendly industrial jurisdiction in the NSW Industrial Relations Commission.
In the early days of Howard's WorkChoices, the NSW Government considered a number of options to protect councils and council employees from that legislation. A proposal to make the general manager the employer (the general manager being a person couldn't be a corporation) was the most practical suggestion but was opposed by both the LGSA and USU. However, when the LGSA and the unions met to discuss Etheridge, it was clear that there was a better option. The LGSA has always been critical of WorkChoices, expressing a clear preference for the familiarity and user-friendliness available in the New South Wales Commission. The LGSA is concerned about the de-corporatisation model, claiming it raises a number of problems which were unintended consequences of what was nothing more sophisticated than an attempt by the State Labor Government to protect Queensland local government employees from the Federal legislation. Amongst other things, this included individual councillor liabilities, complications in applying for and receiving funding, grants etc.
In New South Wales, the Labor Government has also taken steps to discourage councils from taking opportunities under Howard's WorkChoices - including a joint letter to all councils by the Ministers for Local Government and Industrial Relations - so there is a realistic expectation that the NSW Government will do something legislatively if necessary to keep local government employees within the NSW industrial relations system. But, given that the problem arises in the first instance because of the Federal legislation, it would be so much more simple for the Federal Government to explicitly exclude local government employees in the Federal Workplace Relations Act. We think so, the USU and the LGEA think so and we support the approach the LGSA has made to the Premier encouraging this course of action.
In a letter to the Premier dated 22 August, the President of the Local Government Association, Councillor Genia McCaffery said:
"If on the basis of the Etheridge decision, NSW councils are assumed not to be constitutional corporations, it is the Association’s view that certainty would be introduced by legislative initiatives excluding local government from the federal jurisdiction by way of federal legislation, such as amending the Workplace Relations Act 1996 to exclude local government from its coverage and operation. The Association would therefore support such a course of action." And so would we.
Meanwhile, the fools are rushing in... (back)
The August Bulletin announced our "Fools Rush In" competition. We were keen to see which General Manager or HR manager would be "stupid enough to think that the Federal Court decision does not affect their Council."
We had some general managers at relatively short odds but, so far, we have had no nominations. In fact, one of the favourites was smart enough to recognize that recent developments would make him rethink his previously unshakeable conviction that his council was a trading corporation. Dramatically understating the impact of the Etheridge decision, he wrote to the unions:
"Since the meeting interesting developments have emerged and I think it appropriate to the parties to take some time to consider those." Well done Stuart, discretion is the better part of valour. And, curiously the target of HR managers in the industry (target is the collective noun for a group of HR managers) has been strangely quiet. Except for two of them and they didn't disappoint us at all. One surprised us and the other just confirmed what we had thought all along.
In the August Bulletin we said "it will be a very courageous or foolhardy Council that continues to insist that it is a constitutional Corporation" after the Etheridge decision and boasting incredible courage or foolhardiness, the winner in our "Fools Rush In" competition has to be HR Manager at Greater Taree Council, Tony Surety - who may well have written the stupidest letter in local government this year.
Impervious to the implications of the Federal Court decision, Tony happily wrote to the three unions conveying a decision of the Council taken (on his recommendation) prior to the Etheridge decision. A decision, of course, rendered obsolete as soon as Justice Spender decided that Etheridge was not a constitutional corporation. Caution, risk management and an instinct for self-preservation should have, at the very least, put conveying the decision on hold pending a further report to the council.
You be the judge, here's the link to the letter and tell us then whether you think this is the stupidest letter written this year, or the stupidest letter ever written by going to this link:
http://app.icontact.com/icp/sub/survey/start?sid=10609&cid=37499
And we even tried to give Tony a hint and spare him the ignominy. How could he have missed our gratuitously helpful approach in this e-mail exchange after we had received the letter. You can find it here
An honourable second place goes to HR Manager at Kiama Council, Russell Park. Not quite as stupid as Tony's letter but an uncharacteristic response when Russell said:
“The decision in this matter has little consequences for New South Wales Councils. Etheridge is a very small council unlike the majority of NSW councils.
I await some input from the LGSA and there is little doubt that there will be an appeal to the High Court, so this matter is far from settled.”
The nominators of these rushing in HR managers will receive their prizes in the mail.
So far that's two bottles of wine out of our pool of five given away to worthy recipients - three to go, so please keep those nominations rolling in.
What does the Building Professionals Amendment Act 2008 mean for councils and council staff? (back)
As this Bulletin is prepared, we await news about the future of Planning Minister Frank Sartor.
We already know that both the Department of Planning and the Building Professionals Board are in disarray in expectation that Frank will be moved ("Poor handling of recent planning legislation has sealed his removal from Planning." Page 5, Sydney Morning Herald, Friday 5 September) and two days ago rushed the announcement of appointments to the Planning Assessment Commission (PAC) and the BPB. Rumours were rife that both organisations were struggling with the preparation of regulations to implement the Building Professionals Amendment Act 2008 -particularly in the two areas that are providing most interest to our members.
The two most critical questions for depa are what should councils do to accredit staff subsequent to the legislation and what sort of individual liability exists the Council employees who find themselves the subject of complaints to the BPB?
1 Do councils now have to accredit staff?
No. The Government did not proceed with the proposal for council employees who do certifying to be individually accredited by the BPB in the same way as private certifiers.
One of the issues discussed when the Planning Minister Frank Sartor decided it might be a good idea to talk to depa about this issue (after we wrote him that nice letter complaining about his offensive and defamatory comments about building surveyors on ABC radio) was what to do about accreditation of council staff. The accreditation of local government employees was one of the recommendations of the Campbell Enquiry when that hapless Committee decided to pander to the whinging private certifiers and their lobby groups (like the AIBS) and establish a "level playing field".
We always thought that was one of the more stupid recommendations because Council employees who do certifying have so many layers of supervision and control watching what they do, that there was no comparison with the private sector.
Local government opposed individual accreditation of council employees and the Minister agreed to provide automatic accreditation for council employees at the A3 level but to continue the current practice where councils can allocate work, at their discretion, to their staff at the levels that would normally be carried out in the private sector by higher level accredited certifiers. Recognizing the reality, we still couldn't convince the Minister that he should automatically accredit at A2 level but the significance of his decision to retain the existing discretion in councils to allocate work to appropriately qualified and experienced people, should not be underestimated.
We know that the AIBS will continue to argue that Council employees should do their courses and get accredited by the BPB but, as things stand at the moment, if you are a Council employee you can continue doing the work you currently do now.
The last thing we need now (and we know of at least one Council getting a little bit ahead of itself) is for councils to anticipate that at some stage in the future they will need to accredit employees and they will lose their discretion and, based on that anticipation, start to take work away from people.
How does it make any sense to remove work from employees that they have been doing based on their supervisors and managers believing that they are capable and competent to do it, when this is all supposed to be about more skills, not removing them from people who are already operating at that skill level?
Members are reminded that any Council which moves towards de-skilling staff and restructuring to facilitate what is anticipated to occur in the future with accreditation, will need to follow the obligations imposed on the Council under clause 34 Workplace Change and Redundancy of the Local Government (State) Award. Namely, that they advise employees and the unions to which they belong of the proposals before anything is implemented and they don't proceed to implement any changes until such time as they have consulted properly and considered feedback from depa.
That allows us to be involved to test the structure and ensure that members are not de-skilled or disadvantaged.
If this is already happening at your Council, let us know.
2 What happens about individual liability?
In our submission to the planning initiatives raised for discussion last year we flagged the complications of the BPB being given some sort of control over council employees at the same time that those council employees have a responsibility and accountability to their employer. This issue was never properly contemplated by the Government.
We still believe this issue has not been properly considered and no one is really in a position to make an informed judgement about the impact of liability, how, how much etc until the regulations under the Building Professionals Amendment Act 2008 are published. We understand that this will happen before the end of the year but we also understand that those charged with the responsibility for delivering these regulations are struggling to develop them and properly deal with issues such as this.
It will be unacceptable to create a parallel liability for council employees - the existing liability to their employer to do the job properly and suffer the consequences if they don't and a new individual liability to the BPB. No Council employee should have to deal with an increased liability without proper mechanisms established by the Council or the Government to indemnify or protect the employee as part of that process. And if there is found is some addition all liability, but employees affected would need appropriate payment to compensate for this additional liability - just like those engineers receiving the Civil Liabilities allowance under the Local Government (State) Award.
Significantly, no one seems to have contemplated the protection afforded to local government employees acting in good faith by section 731 of the Local Government Act:
“731. A matter or thing done by the Minister, the Director-General, a council, a councillor or employee of the Council or any person acting under the direction of the Minister, the Director-General or the council does not, if the matter or things done in good faith that the purpose of executing this or any other Act, and for and in on behalf of the Minister, the Director-General or the council, subject to councillor, an employee or a person so acting personally to any action, liability, claim or demand."
It will be depa's responsibility to ensure that no one has to work under any increased risk without that risk being properly managed, insured or compensated for. Watch this space.
Having a bad day? Things could be worse: you could be Michael Costa or Morris Iemma (back)
Everything is relative. Chaos in Macquarie Street in Sydney continues but we can't wait for the full impact of the news. ABC 702’s midday news announced "the New South Wales government is in disarray" and as anxious as we are about what's happened to Frank, Michael, Maurice and the rest of them, comment on that will have to wait.
Alex Mitchell today in Crikey said this: “Costa bears almost sole responsibility for driving out Deputy Premier, Transport Minister and Finance Minister John Watkins who resigned yesterday pleading "physical and emotional strain" - a medical term for being in the same room too often with Costa."
The Daily Telegraph’s Simon Benson delivered the best line saying that Watkins’ departure was like a ship leaving sinking rats."
We will have to wait until the dust settles and count the bodies.
What happens in the State Government is critically important for local government employees. It is essential that we have a supportive Minister for Industrial Relations as issues about Federal coverage resolve and a reliable Local Government Minister is always important.
The State Government creates and amends the legislation our members manage. The sooner the disarray is resolved and competent ministers are appointed to focus on the job at hand, the better.
Ian Robertson
Secretary
