Local Government Amendment (Legal Status) Bill 2008



About this Item
SpeakersKelly The Hon Tony; President; Robertson The Hon John
BusinessBill, Inaugural Speech, Second Reading


LOCAL GOVERNMENT AMENDMENT (LEGAL STATUS) BILL 2008
Page: 11060

Second Reading

The Hon. TONY KELLY (Minister for Police, Minister for Lands, and Minister for Emergency Services) [6.23 p.m.]: I move:
      That this bill be now read a second time.
I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.
      It gives me pleasure on behalf of the Government to introduce the Local Government Amendment (Legal Status) Bill 2008.

      The bill implements two important reforms for local government workers in New South Wales.

      The first of the reforms is designed to deal with the consequences of the Work Choices regime, the adverse impact of which is still being felt by workers across New South Wales.

      Local councils and county councils are bodies corporate under the Local Government Act. This corporate status might, in some circumstances, still expose them to the Federal industrial relations system and its regulations.

      Quite simply, the New South Wales industrial relations system is fundamentally fairer than WorkChoices.

      Although the worst aspects of WorkChoices are now dead and buried, further legislation to repeal other unfair elements of WorkChoices will not be introduced until mid 2009, with the new system not fully operational until mid 2010.

      The New South Wales Government believes that council employees should not have to wait any longer for certainty. We are determined to protect New South Wales local government employees and their hard earned rights and benefits.

      Councils and local government unions have made it clear they would prefer to remain within the State industrial system, a system which has delivered fairness and certainty for everyone.

      Councils in New South Wales have voted with their feet and made extensive use of the referral agreements provision inserted into the Industrial Relations Act in 2006.

      Section 146A permits an employer and a union to agree to refer industrial matters for resolution and determination by the Industrial Relations Commission of New South Wales.

      Welcome as that cooperation is, it cannot take away the basic uncertainty regarding which system local councils belong in, so the New South Wales Government has decided that something needs to be done now.

      This bill will minimise the risk of New South Wales councils being caught up in the federal system by changing their corporate status.

      Instead of being a body corporate, a council will be constituted as a body politic of the State and will have the legal capacity and powers of an individual.

      This change in legal status is not intended to affect the day-to-day operations of a council. It will not expose councillors to greater risk of personal liability and will not affect the existing legal rights and obligations of councils or third parties who do business with them.

      Its only impact will be to remove the possibility that a council might be characterised as a constitutional corporation and therefore an employer for the purposes of the Commonwealth's Workplace Relations Act. It will ensure that a council cannot be subject to the Federal industrial relations legislation.

      New South Wales laws that apply to corporations, however, will continue to apply to councils as if they were bodies corporate. This means, for example, that section 50 of the Interpretation Act will continue to apply to a council. As a result, a council will continue to have a seal for the execution of documents and may sue and be sued in its council name. Councils will also continue to be subject to any statutory penalties or fees—such as filing fees—that may be imposed on bodies corporate, rather than being treated as natural persons.

      Earlier this year, the Queensland Parliament enacted similar legislation to protect council employees in Queensland from WorkChoices. That legislation ensured that council workforces are covered by the Queensland industrial relations system.

      Due to the different legislative schemes for local government in each jurisdiction, the reforms are not identical. This bill, however, will nonetheless achieve similar certainty for New South Wales council and county council employees.

      The Government is aware of the recent Federal Court decision, which held that a local council in Queensland, before the Queensland reforms were enacted, was not a constitutional corporation. Although this decision was welcome, it did not resolve the issue finally and the New South Wales Government believes that council workers should not be left in legal limbo.

      At this time, there are more than 50 New South Wales councils that have not entered into common law agreements with their employees and those employees remain exposed to the Federal system.

      This bill removes the possibility of this happening. It will be welcomed by local government employees across the State.

      The Government will continue to encourage the Commonwealth to toss out the sad remnants of WorkChoices and ensure clarity for the industrial regulation of local government around Australia.
      The bill also introduces a further important improvement for the conditions of employees in local government. It will allow a council to appoint temporary employees for up to 2 years to fill positions where permanent council staff are on parental leave.
      Currently, the Local Government Act provides that where a councillor general manager appoints a person to a position that is temporarily vacant because the holder of the position is sick, absent or suspended from duty, the temporary appointee may not continue in that position for more than 12 months.

      However, when the Local Government (State) Award 2004 was made it allowed staff to be granted parental leave for a period of up to 24 months.

      This means that if a staff member is on parental leave for 24 months, the General Manager can only appoint someone to fill that position for 12 months. At the end of that 12 month period the general manager would have to go through the process of appointing another person to that temporary vacancy.

      The bill allows persons to be directly appointed to a position without advertisement for a period of up to 24 months, where the appointment is to fill a vacancy arising from the granting of parental leave.

      The local government sector has been given the opportunity to comment on this proposal.

      The department issued a circular to all councils advising them of the proposal to amend the Act and inviting them to comment.

      Of the 65 councils and 1 county council that responded to the circular, 57 supported the proposal and only two opposed it. Five councils did not indicate a position.

      This bill demonstrates this Government's continued determination to support the local government sector by enabling it to carry out its functions in a sustainable manner based on the principles of good governance.

      I commend the bill to the House.
The PRESIDENT: Order! I inform people in the gallery that the Hon. John Robertson is about to make his first speech, and I ask all members to extend to him the customary courtesies.

The Hon. JOHN ROBERTSON [6.23 p.m.] (Inaugural Speech): I wish to acknowledge the traditional owners of the land on which we are gathered, the Gadigal people of the Eora nation, and pay my respects to them and their elders, past and present.

I want to commence by saying that there are two events that make this day historically significant. Today, of course, is Remembrance Day, and it marks 90 years since the end of World War I. So it is a solemn and respectful day, forever reminding us of the sacrifices made by our soldiers and of the horrors of war. My grandfather, Linden John Lance, was one of those who served in World War I, both at Gallipoli and in France.

It is also 33 years to the day since Australia saw a democratically elected government led by Gough Whitlam dismissed by the Queen's representative, Sir John Kerr. For this side of the Chamber it is remembered as a day that galvanised the Labor movement. It also preserves that enduring element of "the rebel" that comes with being a member of the greatest political party in Australia—the Australian Labor Party—and which was last in evidence when millions of rebels across Australia joined together to defeat Mr John Winston Howard in defence of their rights at work. I will resist the temptation to carry the analogy forward any further, but I will say this: It is good to be a rebel and it is good to win. Long may the rebel live on this side of the Chamber!

I rise to speak in support of the Local Government Amendment (Legal Status) Bill 2008 and also to make my inaugural speech. I am honoured and privileged to be given this opportunity. The bill before the Chamber seeks to provide protection for employees of local government in New South Wales. It provides these workers with certainty and access to the Industrial Relations Commission of New South Wales. The Industrial Relations Commission of New South Wales has been in existence in various forms since 1901, providing a balanced and fair system right to this current day.

The bill has been made necessary because the former Federal Government, under the leadership of the soon-to-be-forgotten John Howard, on an ideological jaunt to rip away the rights of working people, utilised the corporations provisions of the Australian Constitution to implement its anti-worker laws—the infamous WorkChoices, where the only choice was to work harder for less or get sacked! In doing so, the former Federal Government created uncertainty for employees in local government regarding the jurisdiction they were in. This bill remedies that uncertainty.

The unfortunate reality for many other workers in New South Wales, such as those in the community and social welfare sector, hospitality workers, workers in the textile, clothing and footwear industry, and workers in the security industry, is that they may still find themselves with fewer rights and conditions under the new industrial regime developed by the Federal Rudd Labor Government. That system will only provide a minimalist safety net that will, in all likelihood, still be inadequate.

The outcomes of both the last State and Federal elections were heavily influenced by industrial relations and the positions adopted by the Labor Party and the Coalition. That influence was largely the result of a campaign that is commonly referred to as the Rights At Work campaign. It commenced in 2004 and continued through until the defeat of the Howard Government on 24 November 2007. It was a campaign that made history and changed forever the face of politics and campaigning in this country.

Contrary to the views of those on the other side of the Chamber and some media commentators, the Rights At Work campaign was much more than simply a union campaign. It was a campaign that went to the grassroots of our society; it engaged the broader community, from individuals to organisations. It involved many people who had never before been politically active—people from a range of different political parties and perspectives. It engaged people because it was about the values of fairness and decency.

The reason so many people stood up and made their voices heard was a high level of concern for the future. They did not want an industrial relations system based on the law of the jungle, where the strong reign and the weak are trampled. During those three years of the Rights At Work campaign, I had the privilege of travelling the length and breadth of New South Wales, talking and listening to people who were concerned about the WorkChoices laws going too far, concerned about how their children or grandchildren would be affected by laws that tipped the balance in favour of unscrupulous employers.

I heard many stories during my time on the Rights At Work bus. One was from two women I met in Forster, on the State's mid North Coast, who worked picking mushrooms and were forced to sign an Australian workplace agreement [AWA] to ensure their ongoing employment. They were not given the opportunity to negotiate the terms of the AWA, as the former Federal Government tried to have all Australians believe would be their entitlement. The AWAs given to them were identical, and in them they were classified as "flexible permanents". That could not have been further from the truth, but it was an interesting title. Under the terms of their AWA they were paid piece rates, which is payment for the number of mushrooms they picked rather than an hourly rate. One of them told me how she was paid $7.60 for 4½ hours work. The other woman told me that when she asked questions in writing about the AWA, as directed by the employer, she was never called to work again. Stories like theirs were repeated over and over as we travelled from town to town across New South Wales. Can you imagine the way working people would have been treated under WorkChoices had the full impact of the global financial crisis hit? I shudder to think.

It was also during the Howard years that it became fashionable to beat up on unions under the guise of the need for reform—that somehow unions were an impediment to a more efficient economy, when nothing could be further from the truth. Even some within the Labor Party, to their great shame, have taken it upon themselves to question the legitimacy of unions in a modern economy. Those who have argued this point, and continue to do so, are disingenuous and merely seek to remove any voice of opposition to the rampant ideology of the free market. Unions are, and always will be, a voice for those who would otherwise not be heard.

Modern unions are not what John Howard and others of his ilk have sought to portray. The union movement in this State has been constantly evolving. In more recent years that evolution has occurred under the leadership of people like Michael Easson, Peter Sams, Michael Costa, and me, and will continue to do so under the leadership of Mark Lennon. It is a vibrant and inclusive movement that reflects what is necessary in a twenty-first century relationship between the industrial and political wings of the Labor movement.

As we now see change caused by the global financial crisis and the collapse of the financial markets, I am hopeful that we are moving into a new era of politics—an era where Milton Friedman's pure free market and ultra small government ideology is collapsing, in the same way the Communist bloc collapsed in the 1990s. It is inevitable that systems based around an ideology that has few moral values will fail. Ideology with no reference to the reality of society is guaranteed to fail. Mikhail Gorbachev, a Nobel laureate and a leader who has seen firsthand the impacts of significant change, said—more eloquently than I could—in a New York Times article reproduced in the Australian Financial Review on 31 October 2008:
      In the coming months, the greed and irresponsibility of the few will affect all of us. No country, no sector of the economy, will escape the crisis. The economic model rooted in the early 1980's is falling apart. It was based on maximising profit by abolishing regulation aimed at protecting the interests of society as a whole. For decades we have been told that this benefits everyone: "a rising tide lifts all boats". Yet the statistics say that it didn't.

He went on to say:
      Now that this pernicious and immoral pyramid is collapsing, we must think about a model that will replace the current one. A new model will have to emerge, and it cannot be based entirely on profit and consumerism.

Mikhail Gorbachev concluded by saying:

      But there is one thing policymakers who bear the ultimate responsibility for overcoming the current crisis must understand: Without a moral component any system is doomed to fail.
The unfortunate reality is that the period ahead is likely to be extremely painful, particularly for the hardworking men and women, small business proprietors, and the less well-off in our community. It is our responsibility to do our utmost to minimise the effects of the global financial crisis and use this opportunity to shift to a new model. I believe that any new model needs to ensure people are seen as human beings with family responsibilities and a contribution to make to our society, not as mere inputs of production; that when we measure the performance of the economy it is not measured just by the profits made by business, or the ASX or Nikkei index, but also by how well we as a society, and as a government, are meeting the needs of the most vulnerable in our communities. A new model needs to place greater value on the caring roles in our community—those of teachers, early educators, childcare workers, nurses and other health workers, and, importantly, stay-at-home parents.
    I am not talking about tax-and-spend economics; I am talking about cultural norms and policy settings that define success differently than the size of your bank balance—that we measure achievement in terms of someone's contribution, that we define a successful person as someone who has given more than they have taken, and that we equalise health and welfare indicators between black and white Australia. This will challenge both sides of politics. When the things you believed in are exposed as flawed, many will question their beliefs—when you can no longer put people in a box of Left or Right, progressive or conservative, because their arguments are about a new set of values. This challenge also presents enormous opportunities.
      As a new politician I recognise another challenge: to change the community's attitude towards politics and politicians—a change where people are engaged in, rather than cynical towards, the motivations of politicians. I have always been vocal in my opinions on issues that matter, whether it was the war in Iraq, the treatment of refugees, or WorkChoices. I stand here today and make a commitment that I will continue to be an advocate on issues that are important, even where there is an inclination to say nothing because it goes against the grain. I hope to contribute to the change required as we head into difficult times, always with an eye to the needs of those less fortunate or those struggling to make a go of it in our society.
        When I arrived in this place I was told by members on both sides of the Chamber to read the inaugural speeches of other members, past and present, as a guide in preparing my own. What struck me when doing so is that this is not only an opportunity to outline the values system you bring, but also to place on record and acknowledge the life experiences and people that have had an impact on your life thus far. I do not intend to say a lot about myself because a wiser person than me once said, "Anyone who gets up and talks too much about themselves obviously hasn't got much of a contribution to make." So I will be as brief as possible.
          I was born at Ryde hospital to Don and Rowena Robertson, and I am the eldest of two boys. My mother passed away just over 18 years ago but I know she would be very proud. My father, Don, and his wife, Theresa, are here today in the gallery, as well as my brother Andrew, his wife, Rebecca, and their three children. My father is the one responsible for politicising me at an early age. In 1972, at the age of 10, I handed out my first how-to-votes in the election that saw Labor back in office federally after 23 years. I was educated at Denistone East Primary School and then Ryde High School.
            My first real job was part time packing paper shopping bags behind a checkout at Woolworths at Top Ryde, at the age of 15. I joined my first union at that time, the Shop Distributive and Allied Employees Association. I was lucky enough to progress to operating a checkout register—the first male to do so in Woolworths at Top Ryde. At the age of 16 I left school, and in January 1979 I started an apprenticeship as an electrical fitter mechanic. It was then that I joined the union that I am proud to say I am a life member of, the Electrical Trades Union of Australia, New South Wales Branch.

            I worked on many building sites around Sydney, including this place when it was being extended and refurbished in 1981-82. From what I have been able to ascertain, I am the only person to have worked on the construction of this Parliament and returned to sit in this Chamber or the other place. One of the tradesmen I worked with on this place is in the gallery today, Mennios Giatris. When I first started in the building industry there was no Occupational Health and Safety Act, and no site sheds. You were lucky to have a besser block to sit on while you ate your lunch!
            Working in the building and construction industry is an experience that opens your eyes to the world. It is an industry where you meet people from just about every nation around the world. I learned of the life experiences of my workmates from Croatia, Iraq, Poland, Greece and Italy, to name just a few. They told me about the politics in the countries they had come from, and about the culture and the food. In 1986 I was given the opportunity to fill in as an organiser with the Electrical Trades Union [ETU] when an organiser went on leave for six weeks. He left while on leave, and I subsequently stayed with the ETU for just under five years, organising electricians in the building and construction industry. In 1991 Secretary Michael Easson offered me an opportunity to start at the Labor Council of New South Wales, as it then was, as an industrial officer. My time with Unions New South Wales, as it is now known, is the longest I have spent working in one place so far in my life. I have left the organisation in the capable hands of Mark Lennon and Chris Christodoulou, who I know will ensure that the organisation goes from strength to strength.

            I would like to express my appreciation and thanks to the parliamentary staff and officers, and honourable members for the assistance, guidance and courtesies that have been given to me since my arrival in this place. I would like to thank my father, Don, for his guidance and advice over the years—advice always welcomed but not always taken. You have been, and remain, a good sounding board and a great mate. I would also like to thank all the officers and staff I worked with at Unions New South Wales—Sam Moait, Mark Lennon, Chris Christodoulou, Amanda Tattersall, Adam Kerslake, Mary Yaager, Neale Towart, Alisha Wilde, Stephen Damf and Alison Rudman. I want to especially thank Kelly Hutchison, who was my personal assistant for nine years.

            My thanks also go to the support staff at Unions New South Wales. Without the support of all those wonderful individuals, and the affiliates of Unions New South Wales, we would not have achieved the things we did in my seven years as secretary. I also want to thank two Daniels: Daniel Walton, who organised the first group of trips on the Your Rights At Work bus in 2005; and Daniel Kildea, who organised the trips in 2006 and 2007 and was the only person, apart from me, to have made every trip on the bus for three years.

            There have been many people along the way whom I also want to thank: a former President of this Chamber—and who I acknowledge is present tonight—Johno Johnson, Senator Mark Arbib, Australian Labor Party National Secretary Karl Bitar, New South Wales Australian Labor Party General Secretary Matt Thistlethwaite, and a very good friend to me over the years, John Whelan, one of life's true gentlemen. My thanks also go to five friends and great supporters from the union movement: Secretary of the Electrical Trades Union Bernie Riordan, Secretary of the Rail, Tram and Bus Union Nick Lewocki, Secretary of the Australian Workers Union Russ Collision, Secretary of the National Union of Workers Derek Belan, and Secretary of the Australian Manufacturing Workers Union Paul Bastian.

            A special thanks to my wife, partner and friend Julie McLeod, the grounding influence in my life. To our three children Brianna, Aidan and Kass, thank you for all the support you have given me. I love all four of you very much and I hope I make you proud while I am in this place. There are too many other people to thank and there are those who know it is pertinent not to mention them. If you were not thanked and are offended I apologise. Finally, thanks to all honourable members who have shown me the courtesy of listening quietly without interjection, a courtesy I expect is most unlikely to be given to me in the future. I commend the bill to the House.

            Debate adjourned on motion by the Hon. Greg Donnelly and set down as an order of the day for a future day.