It's Time for Some Real Political Leadership over Local Government and WorkChoices
By Ben Kruse
USU General Secretary
Apr 16, 2007
Twelve months of WorkChoices and political, legal and industry
commentators are still unable to give a definitive answer as to whether
councils are covered by the federal industrial relations laws, leaving
local government workers and their families concerned for their futures.
USU General Ben Kruse: "Local government has been placed in a "no-mans land" of uncertainty."
“The
current situation is just ridiculous,” says USU General Secretary Ben
Kruse. “Local government has been placed in a "no-mans land" of
uncertainty about where councils stand with respect to state or federal
coverage.”
“WorkChoices strips away the rights and conditions
of employees and will harm local government. The NSW State Award
represents a much fairer alternative.”
“It’s about time that
this issue was resolved. What is needed now is strong political
leadership so that NSW local government can to be excised from
WorkChoices once and for all - allowing local government to get back to
the work of providing vital community services," says Ben Kruse.
Conflict & Inconsistency within the Federal Government
Right
from the start the federal government had problems getting its act
together with local government and WorkChoices - it is like they forgot
it even existed.
In November 2005 the federal Minister for
Local Government, Jim Lloyd said that that “councils may not come under
the federal system as they are not (emphasis added) constitutional
corporations which means they will remain under the NSW system under
their existing NSW award and there will be no change.” (1)
However
he was soon contradicted by the then Workplace Relations Minister,
Kevin Andrews who pursued a campaign supporting the application of
WorkChoices to local government.
This lack of consistency in
the message about local government and WorkChoices has dogged the
Coalition - and placed a heavy burden on local government workers and
their families - ever since.
Joe Hockey Hasn’t Got a Clue Either The new Workplace Relations Minister, Joe Hockey, has also fallen foul of the confusion over WorkChoices and local government.
Speaking
at the Australian Workplace Relations Summit in Sydney on Wednesday 14
March, Hockey said that whether local councils are constitutional
corporations and covered by Work Choices is still a “grey area of law”.
(2)
“Our advice,” said Hockey, “is that it really depends on
the structure of the council and the vehicle that is being used for
employment purposes.”
Hockey went on to note that local councils were essentially “creatures of the states.”
However
within a fortnight Hockey had changed his position telling The
Australian newspaper that he strongly supported the push by councils in
Queensland to operate under WorkChoices. (3)
Hockey too,
appears unable to grasp the nature of his brief, sending an
inconsistent and confusing message about the WorkChoices legislation.
So what do the Lawyers Think? Why
is there all this confusion? The problem comes about because the
federal WorkChoices laws are built on the limited powers available
under the trading corporations provisions of the Australian
Constitution.
Even the federal government’s own lawyers do not
really know whether councils fall under WorkChoices. In submissions
before the 2006 High Court case the Commonwealth Solicitor General,
David Bennett QC, told the court that where the principal activity of a
corporation “is concerned with the exercise of governmental authority,
as in then case of a municipal council (emphasis added) ” then the
council may not be a trading corporation and not fall under
WorkChoices.” (4)
As one of the three tiers of government,
councils are mostly involved in non-profit public interest activities
so it is not surprising that they would not be trading corporations.
However,
just like Lloyd, Andrews and Hockey, the lawyers are not to sure
either. Indeed some lawyers say councils could move in and out of
WorkChoices depending upon day to day changes in the way the councils
deliver community services. What a nightmare!
Uncertainty Reigns: Wages Suffer The
uncertainty associated with WorkChoices can only really be understood
when it is recognised that these federal laws were drafted on behalf of
the federal government by big end of town law firms.
WorkChoices
was conceived as a lawyer’s paradise with constitutional uncertainty
being deliberately woven into the fabric of the legislation so as to
lead to expensive litigation. We are already witnessing the fruits of
this aspect of WorkChoices in Queensland with the Etheridge Case and
the Banana Council Dispute holding up the payment of basic wage
increases.
Meanwhile lawyers prosper.
Clouds are also
gathering in New South Wales where councils are trying to have the best
of both worlds. On the one hand councils have not paid the December
2006 $27 Australian Fair Pay Commission increase, which they must do
should they go federal. On the other hand councils are also claiming
they are no longer respondent to State Award wage negotiations.
Employers do not like paying wage increases if they can avoid it and
the flawed jurisdictional foundation of WorkChoices has given employers
an excuse to delay and equivocate about the negotiation of wage
increases.
WorkChoices is creating an artificial wages freeze at the very time that costs of living are escalating.
This
could never happen under the State Award system and is a direct
consequence of the coalition’s mismanagement of industrial relations in
local government. With wage negotiations in NSW scheduled to conclude
before November 2007 WorkChoices will create a wage crisis in local
government.
Time for Action: Time for Leadership Community stakeholders at all levels need to work together to remove the threat of Workchoices from local government.
Absolute incompetence has been shown on the part of the coalition over the application of WorkChoices.
True
leadership now needs to be shown at the local, state and federal levels
to protect working rights and stop council workers from being forced
onto federal agreements.
The USU has led this challenge by
commencing proceedings for a new Local Government (State) Award. The
Union has advised all NSW councils that strategic legal challenges will
be mounted against any council seeking to enter into federal
WorkChoices agreements.
The NSW Iemma Government has shown
leadership, passing legislation enabling eighty-two councils, over half
the councils in NSW, to sign Protection Agreements. These agreements
ensure that unfair dismissals and industrial disputes continue to be
heard before an independent umpire - the NSW Industrial Relations
Commission.
Stronger Stance Required by Local Government Leadership It’s time for local government to get serious about our opposition to WorkChoices.
Councils need to continue to sign up to Protection agreements and commence negotiations for common law collective agreements.
The
role of some key local government leaders is questionable in this
regard. Sydney City is one of the 82 NSW Councils signed up to
Protection Agreements. In contrast, Genia McCaffery, independent Mayor
of North Sydney and President of the Local Government Association has
steadfastly refused to implement local or industry strategies to
protect employees from WorkChoices.
Quoting corporations law
concerns McCaffery says that “even though local government in NSW does
not support the legislation we have no choice. (5) We’ve got to use it
(WorkChoices) and this is causing a lot of angst.”
McCaffery
misses the point – it is for the very reason that WorkChoices laws
might apply that councils like North Sydney need to sign Protection
Agreements and make collective common law deeds. The Local Government
& Shires Associations also need to take a more hands on role in
developing and implementing strategies to avoid the use of WorkChoices
agreements.
Federal Leadership: Real Choice & Responsibility The
local government experience shows that WorkChoices has been a disaster
both in terms of industrial policy and the constitutional framework
within which the laws have been constructed. WorkChoices has left local
councils completely in the dark with lawyers being the only real
beneficiaries.
The obvious answer is for immediate action to be taken to excise local government from WorkChoices.
However
given the ideological stance taken by John Howard and the lack of
understanding exhibited by Ministers Hockey and Lloyd this is not going
to happen under the federal coalition government.
So what position will be taken by the federal ALP? Kevin
Rudd and Julia Gillard are unlikely to make the same mistakes as the
Howard Government. One hopes that the federal ALP leadership will adopt
a policy which provides for a fair and equitable system of industrial
regulation and that also avoids the constitutional WorkChoices quagmire
that has subsumed the federal coalition.
Footnotes: 1. The Hon Jim Lloyd MP, WorkChoices Will not Harm Local Government, Media Release Wednesday 2/11/05. 2. Joe Hockey, Australian Workplace Relations Summit, Workforce. 3. Councils Want IR Choices The Australian Thursday 12 April 2007. 4. State of New South Wales & Ors v Commonwealth [2006] HCATrans 233 10 May 2006 5. The Australian Financial Review Friday 13 April 2007, p7. 6.
A complicated legal concept creating another feast for lawyers together
with the prospect of fines and penalties for any party involved in
federal bargaining.
Contact: Ben Kruse
USU General Secretary
(02) 9265 8211
