Industrial Relations Commission New South Wales Medium Neutral Citation: Notification under section 130 by New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union of a dispute with Lake Macquarie City Council re enterprise agreement [2015] NSWIRComm 2 Hearing dates: 8 December 2014 Decision date: 23 February 2015 Jurisdiction: Industrial Relations Commission Before: Harrison DP Decision: Matter Concluded Catchwords: Interest-based bargaining - Collaborative approach to enterprise agreement negotiations - Employee survey - Agreement reached - Enterprise Agreement approved in separate application Matter No IRC14/865 Legislation Cited: Industrial Relations Act 1996 Category: Principal judgment Parties: New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (USU) Local Government Engineers Association (LGEA) Development and Environmental Professionals' Association (DEPA) Lake Macquarie City Council (LMCC) Representation: Mr R Potter Organiser USU Mr G Brock Director LGEA Ms M Cameron Director Community Development LMCC File Number(s): IRC 807 of 2013 DECISION 1. This matter arose by notification pursuant to section 130 of the Industrial Relations Act 1996 ("the Act") by the New South Wales Local Government, Clerical, Administrative, Energy, Airlines & Utilities Union (United Services Union) (USU). 2. The notification, whilst advising of a dispute with Lake Macquarie City Council (LMCC) concerning enterprise agreement negotiations, was filed by agreement between the parties cogniscent of item (c) of the broader definition of "Industrial Dispute" found in the Dictionary to the Act: industrial dispute means a dispute (including a question or difficulty) about an industrial matter, and includes the following: (a) a demarcation dispute, (b) a threatened or likely industrial dispute, (c) a situation that is likely to give rise to an industrial dispute if preventative action is not taken. 1. The parties sought guidance by mediation in an interest based process to review the Lake Macquarie City Council Enterprise Agreement 2011 (EA11/3). 2. The parties were resolved to approach the development of a new enterprise agreement on a collaborative rather than adversarial basis. 3. An Enterprise Agreement Discussion Group was established which developed its own processes suitable to the particular task at LMCC. 4. The internal LMCC publication "Lakeline" reported progress to all staff in the February 2014 edition in the following terms: Discussions are now underway to develop a draft of the next LMCC Enterprise Agreement. These discussions are being held under the auspices of the Industrial Relations Act 1996 in Matter No IRC 807 of 2013. Deputy President Harrison of the Industrial Relations Commission of New South Wales is presiding over the discussions which are being held at the Works Depot. The Enterprise Agreement Discussion Group, who is developing the draft on behalf of staff, is made up of representatives from unions and staff, as follows: United Services Union (USU) – Robert Potter (Organiser), Emma Abraham, John Foster, Adam Humphries, Steve Thomas, George Vesovski, Greg Weir, Peter Frame Local Government Engineers Association (LGEA) – Gordon Brock (Director), Len Hermans Development and Environmental Professionals' Association (DEPA) – Ian Robertson (Secretary), Chris Baker LMCC – Morven Cameron, Amanda Colbey, Mick Gray HR Administration Officer, Ashlea Norris, is providing administrative support to the group. The EA Discussion Group is currently meeting weekly and is forming specific subject sub-committees to ensure appropriate input and factual background. If you have any questions about the process or the draft agreement, you can: send an email raise it at a team meeting – all team meeting agendas now have a standard item called "Enterprise Agreement" contact a member of the EA Discussion Group 1. The issues addressed were many and varied, informed by a joint management /union survey of staff conducted in late 2013 to identify issues of interest and concern. 2. The response to the survey was in excess of 50 per cent of employees. 3. LMCC consulted widely with staff in preparation of a submission to IPART in respect to the level of Rates which determined the business plan and parameters of the discussion. 4. Prior to the survey the General Manager, Mr Bell, wrote to all employees in the following terms: Dear Colleagues Re: Your future working conditions Lake Macquarie City Council has had an enterprise agreement (EA) for many years. The provisions included in the EA are provisions and benefits available to our staff that are over and above the Local Government (State) Award 2010. Every three years we review and renew our EA. Our current EA expires in March 2014 and therefore we have started the process of considering our current agreement and what might be included in our next agreement. It has been widely recognised that Lake Macquarie City Council is performing very well. As a result of everyone's hard work we won the Bluett Award last year. All of the work that went into our service review and the securing our future submission means that we are in a strong position looking to the future. IPART approved what was option two of our submission in June 2012. While option two means that the future is not going to be easy, we will however be able to maintain our already high standards of service we provide to the community, but also reinforce that we cannot and should not reduce our commitment to continually improving the efficiency and effectiveness of our activities. All of us are in a position to work together to ensure we maintain our high standards and our reputation as an attractive, fair and caring place to work. This year our EA discussion group is taking a collaborative approach to developing our next agreement. In order to better inform the review process, we are seeking input, thoughts and comments from all of our staff via the attached survey. · A small working group consisting of six Council officers, including two union delegates have worked together to prepare and pilot the survey. The survey asks a few questions about current working conditions, the current EA and ideas that you may have that could be considered in this or in future agreements. The results of the survey will be made available to all staff. The results of the survey will inform the process and will not be viewed as binding during any part of the review. Please take a few minutes to complete this confidential survey and tell us your views and opinions on your current and future working conditions. Thanks for your participation 1. The survey, together with input from management and unions allowed an identification of interests which formed the basis of discussion. 2. Broadly put, this process assisted identification of those aspects of the existing Agreement that assisted delivery of the business plan and the interest of the parties; those aspects which were neutral; and those aspects which presented an obstacle or threat. 3. Elements of the existing Agreement that were positive to interests or neutral received less attention than those which were obstacles or threats. 4. Employees were provided with an update in the April 2014 issue of Lakeline which said: EA Process Update The process to develop a new Enterprise Agreement (EA) for the Council is well underway. We've been using Lakeline to provide staff with progress updates along the way, but we thought it would be good for staff to see the whole process, from "go to woe". There are five main stages to the EA process: • Determine process • Investigation, discussion and negotiation • Feedback • Approval • Implementation We are almost at the end of the second stage, and hope to be presenting a draft of the new EA to the unions and staff in the next month for feedback. The results of the all staff survey conducted late last year have provided the EA Discussion Group with valuable information as to what items are important to staff and what additional provisions staff would like to be considered for inclusion. Current state of play Sub-committees set up to investigate specific aspects of the EA are meeting to formulate recommendations that will be considered by the EA Discussion Group. Sub-committees • Time in lieu • Sick leave flexibility • Sick leave contribution scheme • Sick leave administration • Library Deputy President Harrison of the NSW Industrial Relations Commission, who is presiding over our EA discussions, provided the sub-committees with a charter and a set of principles on which to guide their discussions. Charter Sustainability of current arrangements and practicality of any change Principles • Good faith discussions • Financial sustainability • Employer of choice • Reasonable income for employees • Staff wellbeing influences • No erosion of current benefits Questions or suggestions? At this stage, nothing has been decided and everything is being discussed, so if you hear something about the EA discussions, please use the following channels to seek clarification or obtain further information: • Send an email to eaenquiries@lakemac.nsw.gov.au • Raise it at a team meeting – all team meeting agendas now have a standard item called "enterprise agreement" • Contact a member of the EA Discussion Group 1. The discussion group and sub-committees were assisted by presentation from subject matter experts as the needs were identified. 2. The process concluded in an Agreement for consideration by employees. 3. A ballot took place which endorsed the proposed Agreement; which was subsequently submitted for approval in Matter No IRC 865 of 2014, pursuant to Part 2, Division 1 of the Act (ss 28A-47). 4. A separate Decision issues in that matter [2015] NSWIRComm 3 formally approving the Agreement. 5. In the final proceedings in this matter on 8 December 2014 Ms Cameron, appearing on behalf of LMCC, made the following submissions: CAMERON: Your Honour, as I said I just wanted to say a few words about the agreement and the process that we went through to develop it. In preparing for today I thought a fair bit about the agreement and what it represents for Lake Macquarie City Council. I could talk at length about the process and the agreement itself but in the end I think there were three key elements that summarised the point that we've reached today. These three elements are, firstly, that the way that the agreement was reached using a collegiate approach the group responsible for developing the agreement identified issues and formed subgroups to investigate and develop solutions to those problems. Working together, I think we've developed an agreement in partnership as opposed to following a more traditional log of claims methodology. Secondly, the actual agreement and what it offers now, today, for employees over and above the State Award, these provisions include a nine day fortnight for all staff, wage increases above the award, additional employer super contributions and allowances that are again over and above the award including allowances for identified evacuation wardens, reimbursing outdoor staff for the costs of their licences if they're required to drive a vehicle as part of their role. Thirdly, and for me personally the most exciting element, is the potential that the agreement offers the organisation. This potential is twofold. Firstly there are the future provisions that have been included to be developed over the next 12 months, provisions such as peak accrued time, the ability to cash in sick leave, bonus payments and the creation of the sick leave sharing scheme. Secondly, I believe the real potential of the agreement lies in the cultural change that we will see occurring using this agreement as a catalyst. Lake Macquarie Council have acknowledged throughout the process that we are financially sustainable and that we are performing at a high level when we compare our performance to our peers and against their performance over the last ten years. Very early in the development of the agreement everyone agreed that these two points were critical and that the agreement would not negatively affect our financial situation and should assist us in maintaining our high level of performance. Paragraph 4 of cl 3 of the agreement, which is in the Statement of Intent actually states: "The organisation's high levels of performance are directly attributable to the work and commitment of our employees. It has been the intent of all parties participating in the development of this agreement to ensure that whenever possible provisions are made to support and encourage the ongoing commitment of employees while ensuring that council's financial position is not compromised." It is important to reflect on these two points because when I speak of cultural change occurring subsequent to the development of the agreement I'd like to note that it's not because the culture is currently broken or poor, it's in fact the very opposite. We are performing well and we have a strong culture delivering quality services efficiently and continually improving our performance, however, we recognise that maintaining such a high level of performance is in many ways harder than striving to achieve this in the first place. The subtle and in many ways personal changes that I envisage this agreement unlocking will allow Lake Macquarie City Council to maintain our high performance into the future and equally importantly keep the organisation sustainable and as resilient as possible for the outside forces that frequently challenge our day to day activities. Since the agreement was developed I've had the opportunity to address a number of staff forums including our Corporate Management Team and smaller team meetings. I talk about the primary premise developed and the agreement is one of trust and personal responsibility and creating an environment where a starting point is to trust our employees and teams and deal with employees who are not behaving appropriately on an individual basis as opposed to writing a set of rules that assume people will break those rules. Finally, your Honour, it is important to state that I fully acknowledge that developing an agreement in this matter is only a starting point or a catalyst. We will continue to develop the culture and provide new and innovative leadership training for our employees, particularly those in supervisory roles, to ensure that they are equipped with the skills to manage in this less directive and more collegiate manner. I believe we have an enterprise agreement that everybody involved in creating should be very proud of and I'm certainly looking forward to the agreement and the new provisions developing, being implemented, and undoubtedly being refined over the next four years. 1. The Enterprise Agreement Discussion Group dealt with many difficult and complex matters in a measured and professional manner, ultimately resolving each one to a point of mutual satisfaction. 2. In proceedings for the approval of the agreement Mr Potter of the USU acknowledged the contribution of all participants, and observed: Lake Macquarie City Council has laid the solid foundation for a workplace culture based on goodwill, respect and flexibility that result in their employees enjoying their careers at this council. Likewise, the productivity and efficiencies gained from such a culture will allow the council to deliver on the needs of their community 1. Mr Brock of the Local Government Engineers Association of New South Wales (LGEA) also offered his congratulations to the participants, submitting: Often in negotiations you get the sense that you negotiate a new agreement just simply to have a period of peace, and so you pick up the guns again in three or four years time. Not on this occasion, you get the sense that you have set up a roadwork for the future and the future of not only the council but the representatives and the parties to the agreements so I echo, perhaps not as eloquently, the statements of Mr Potter and also would like to congratulate council's representatives. 1. It is pleasing to record the mature, professional and diligent efforts of all members of the Enterprise Agreement Group. 2. This matter is now concluded. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 February 2015