Notification under section 130 by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with the Local Government and Shires Association of New South Wales re negotiations for a new Award to cover local government in New South Wales [2017] NSWIRComm 1035
On 15 July 2016 the New South Wales Local Government, Clerical, Administrative, Energy, Airlines and Utilities Union ("USU") notified the Commission of a dispute (the "dispute proceedings") pursuant to s130 of the Industrial Relations Act 1996 (NSW) (the "Act") regarding the terms and conditions of a new award to succeed the Local Government (State) Award 2014 (the "2014 Award"). The nominal term of the 2014 Award expires on 30 June 2017.
The other industrial parties to the dispute proceedings are the Development and Environmental Professionals' Association ("depa"), the Local Government Engineers' Association of NSW ("LGEA"), the Nurses and Midwives Association of NSW ("Nurses Association"), and the Local Government and Shires Association of New South Wales ("LGNSW").
The dispute proceedings were initially listed before his Honour Mr Justice Walton on 25 July 2016. Procedural directions were made, including for the exchange of logs of claims, and the matter was timetabled for conciliation. Thereafter the Commission, as presently constituted, assisted the parties in conciliation of the various claims brought by them.
During proceedings before the Commission on 30 June 2017, Mr D Papps appeared for the USU and Nurses Association, Ms A Vasilangos appeared for the LGEA, Mr I Latham (of counsel) appeared for depa, and Mr C McElroy appeared for LGNSW.
Mr Papps advised the Commission that the parties had reached agreement on a package of award variations to be contained in a proposed new Local Government (State) Award 2017, and requested that the Commission make the proposed new award in the terms of Exhibit 1, which was tendered during the proceedings. Mr Papps also tendered a document containing a summary of the changes to the 2014 award (Exhibit 2).
Ms Vasilangos, Mr Latham and Mr McElroy each confirmed that they consent to the making of the proposed new award found at Exhibit 1.
The proposed new award is supported by affidavit evidence filed on behalf of the parties. The affidavit evidence satisfies the Commission of the statutory matters the Commission is required to turn its mind to when making an award. In addition to the affidavit evidence, submissions were made on behalf of each of the award parties.
Under section 11(1)(a) of the Act, the Commission may make an award on application or on the Commission's own initiative. In accordance with those powers, and on the Commission's own initiative (albeit supported by the parties), I propose to make a new award to be known as the Local Government (State) Award 2017 (the "2017 Award") in the terms contained in Exhibit 1.
The consent variations resulting in the new award are the result of extensive work by each of the parties in identifying proposals for variations, distilling them into logs of claims, and negotiating individual items. Inevitably, to arrive at a consent position involves compromise on all sides, and the Commission, having assisted the parties in conciliation, is well aware of the complexity of some of the issues raised during the negotiations.
It is in this context that it should also be noted that Local Government industry awards in this jurisdiction have been made by consent since 1992, which speaks to the ability of the parties to deal with multiple issues in a large and diverse industry. In this regard the provisions of the Act and the rules and procedures of this Commission have provided the parties with the mechanism by which they can achieve this outcome.
The changes include a reference in the award, for the first time, to rostered days off (RDOs). There are four new or amended subclauses, including a definition of what constitutes an RDO to give effect to a new substantive provision that where an RDO falls on a public holiday, the RDO will be moved to the next working day or another day by agreement. These variations were opposed by LGNSW and were recommended to the parties by the Commission after extensive conciliation. They include an ability to change the day of a rostered day off by mutual consent at any time, and for an employer to change the day of a rostered day off on two weeks' notice where there are genuine operational or safety reasons and the alteration does not unreasonably disadvantage the employee.
A number of changes relate to leave. Clause 21A, Sick Leave, has been changed to clarify the circumstances when proof of illness is required, with the emphasis on what is reasonable having regard to an employee's pattern and/or amount of sick leave taken. The subclause relating to types of proof of illness or injury has been varied to provide that proof must be reasonable in the circumstances, and could include a medical certificate or statutory declaration. The reference to statutory declarations being appropriate in normal circumstances largely reflects industry understanding arising from decisions of Commissioner Connor in 1988, in matters 252 and 261 of 1987, and matter 1229 of 1988 that deal with sick leave provisions in predecessor Local Government awards.
I note that in their submissions, the parties expressed shared views that the new subclause pertaining to sick leave also encourages employers to consider granting additional flexibility to employees exposed to higher levels of illness or injury, such as those working with children.
Clause 21E, Long Service Leave, has been changed to limit portability of long service leave between councils to five (5) years' of accrual (unless otherwise agreed), based on the most recent accrual rate before the transfer. The same clause has also been changed to allow access to long service leave that has accrued between the existing service 'milestones'. A further variation permits the cashing out of excess long service leave by consent. The excess long service leave is the amount by which the award is more beneficial than the Long Service Leave Act 1955 (NSW).
A new clause 21L, Special Leave, incorporates the leave without pay provision from the 2014 Award, but also refers to a general discretion for employers to grant special leave, with or without pay, for circumstances which include but are not limited to leave for victims of family and domestic violence, leave for engaging in a voluntary emergency management activity, compassionate leave for employees facing unforeseen circumstances such as injury or terminal illness, and leave to attend to duties as a member of the Australian Defence Force.
A new Clause 16, Motor Vehicle Arrangements, combines provisions relating to vehicles including the vehicle allowance formerly found in subclause 15(x). Variations include changing the calculation of the minimum quarterly payment where private vehicles are required to be available continuously for business use. In relation to leaseback motor vehicle fees, employers will now be required to give written reasons when increasing fees by more than CPI (but may still increase fees by up to 10% in any 12 month period). A new subclause also refers to novated lease arrangements. Guidelines concerning novated leases may be developed at the initiative of one or more of the parties, and I note the parties are prepared to have discussions about the use of those guidelines by the industry.
An addition to Clause 31, Training and Development, recognises the professional development needs of professional employees. The new subclause provides employees whose positions are evaluated in Bands 3 and 4 of the Award and who are required to hold professional qualifications or complete further professional qualifications with access to continuing professional development (CPD) that is consistent with the training plan for their position, of a minimum of ten (10) hours per year or in accordance with legislated CPD requirements, whichever is the greater.
A change to clause 19, Overtime, includes a provision for 'Excess Hours Agreements', formerly known as 'Hours of Work Flexibility Agreements'. Excess Hours Agreements provide employees and employers with a mechanism for recognising additional hours that employees in Bands 3 and 4 may be required to work. Recognition of additional hours may be through payment of an allowance of no less than 10%, or through other methods agreed between the employer and employee.
Another variation which resulted from extensive conciliation is the change to clause 36, Disciplinary Procedures. The union parties had a common interest in claims brought by the LGEA and depa which related largely to inserting detail around how employers were to conduct workplace investigations in order to meet the existing award obligation to properly conduct and speedily conclude them. LGNSW sought to clarify the role of support persons and union representatives during these processes.
The consent variations include a new clause 36C, Workplace Investigations, and a reference to guidelines, which the parties have agreed on in the form of a document titled "Local Government Industry Guidelines on Workplace Investigations" (the "Guidelines"). The Guidelines set out steps to assist employers to deal properly, speedily, and fairly with workplace investigations. They also contain clarification on the role of support persons and union representatives. I note that the parties have agreed that failure to comply with the Guidelines may be used as evidence that a person or employer has failed to properly conduct or speedily conclude a workplace investigation. However a person or employer cannot be prosecuted only because of a failure to comply with the guidelines. I commend the parties on developing the Guidelines and have no doubt that they will be of assistance to the industry.
In Clause 43, Leave Reserved, the parties have restated their commitment to pursuing the necessary legislative change which would allow Clause 21D, Annual Leave, to be varied by consent to provide for the taking of annual leave, by agreement, at either full, half, or double pay.
The award provides for increases in rates of pay of 2.35% from the first full pay period on or after 1 July 2017 (with a minimum increase of $20.40 per week), 2.50% from the first full pay period on or after 1 July 2018 (with a minimum increase of $21.80 per week) and 2.50% from the first full pay period on or after 1 July 2019 (with a minimum increase of $22.30 per week).
Having heard the submissions of the parties and considered the affidavit evidence, the Commission is satisfied that the award meets the necessary statutory requirements. These include that it sets fair and reasonable conditions of employment for employees pursuant to section 10 of the Act, that it meets the minimum award content requirements, and that it provides equal remuneration for men and women doing work of equal or comparable value in compliance with section 23 of the Act and the decision of the Full Bench of the Commission in Re Equal Remuneration Principle [2000] NSWIRComm 113.
In addition to the consent variations, the parties have continued the practice of making various commitments to work constructively on issues of industry significance during the life of the award. These commitments include an agreement for LGNSW to work with the unions to develop appropriate guidelines to promote the employment of apprentices, trainees and cadets, and to review job evaluation, rates of pay, and salary system arrangements for employees in Bands 3 and 4 of the award.
The parties also made submissions in relation to the award's potential application to new and emerging Local Government entities, specifically joint organisations. The parties share a common view that if a joint organisation is a corporation that is controlled by one or more local government entities and falls within the NSW State industrial relations jurisdiction, it will be covered by the existing coverage clause of the award.
Submissions were also made in relation to tracking surveillance of motor vehicles. The parties have agreed to advise members that it is their understanding that surveillance of employees when not at work is prohibited under the Workplace Surveillance Act 2005 (NSW) and to consider this prohibition when implementing tracking surveillance technology in the workplace.
A final comment should be made on a matter raised during negotiations and conciliation but which has not resulted in an award variation. The USU sought to include in the award an obligation for all councils to have an asbestos policy. A Model Asbestos Policy for NSW Councils (the 'Model Policy') was made in 2015, and in 2016 LGNSW prepared a guide to using the Model Policy, to assist employers in developing appropriate policies. Anecdotal evidence suggests not all councils have such policies. The Commission encourages all councils to develop and implement an asbestos policy which includes an asbestos management plan, and appropriate training.
The Commission makes the Local Government (State) Award 2017 in terms of Exhibit 1.
The new award shall commence operation from the commencement of the first full pay period on or after 1 July 2017, shall have a nominal term of 3 years, and shall rescind and replace the Local Government (State) Award 2014 (376 IG 817).
Commissioner J Murphy
[2]
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Decision last updated: 30 June 2017