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Local Govt Award 2017 Update: Disciplinary Procedures and Workplace Investigations

Since our last award update dated 27th February 2017, negotiations have continued and have now progressed to scheduled full day conciliation hearings before Commissioner Murphy in the New South Wales Industrial Relations Commission.

The three Unions representing workers in the negotiations, (the USU, depa and the LGEA) have worked together to draft important proposed amendments to the next award, due in July 2017.

One very important area the Unions believe needs to be better worded is the ‘Disciplinary Procedures’ clause, currently found in Clause 36, and in particular the section B. Employers Rights and Obligations.

The three Unions are seeking to provide wording with a series of steps that will provide much needed clarity and procedural fairness.
Negotiatie fairly

The Unions are seeking the following changes, as well as new wording in the procedures in the Award.

Amendments to Clause 36. Disciplinary Procedures
36.  Disciplinary Procedures
B.   Employers Rights and Obligations
(ii)     Properly conduct and speedily conclude an investigation into the alleged unsatisfactory work performance or conduct and provide the employee with procedural fairness as follows:
a)    At the beginning of the disciplinary process, the employer and the employee will meet to determine the length of the investigation;
b)    The employer shall provide sufficient resources to ensure that, unless there are complicating factors, any investigation should be concluded within four weeks;
c)    If there are complicating factors, and the investigation cannot be concluded within four weeks, the employer and employee will meet again to discuss and agree to an appropriate length of the investigation;
d)    The person who investigates the employee must not have been involved in the matters the subject of the investigation;
e)    The person who investigates the employee must be suitably trained in conducting an investigation;
f)    The investigator/council must provide to the employee, all material upon which it seeks to rely;
g)    The employee may nominate witnesses in support and the investigator shall interview those witnesses;
h)    The investigator shall consider any material prepared by the employee;
i)    The investigator shall not be subject to directions as to the conclusion reached;
j)    The employer must provide a copy of the investigation report to the employee for comment before the employer makes a decision as to the matters the subject of the investigation;
k)    If the employer finds any of the matters proved, the employer must provide the employee with a right to be heard as to the penalty, if any, to be imposed;
l)    The employee shall be entitled to request the presence of a Union representative at any stage.

C.  Procedures
(i)     Where an employee’s work performance or conduct is considered unsatisfactory, the employee shall be informed in the first instance of the nature of the unsatisfactory performance or conduct and of the required standard to be achieved, by the employee’s supervisor or other appropriate officer of the employer. At the same time the employer shall, in a sensitive manner, enquire as to whether or not the alleged performance issue(s) may be in part or wholly a result of any issue(s) that may benefit by referral of the employee to an Employee Assistance Program. Such issues may include but not be limited to, drug or alcohol use, mental health issues, or domestic violence. Such information, if provided by the employee, is provided on a discrete and confidential basis.

At this time the employers, LGNSW, are largely opposing the majority of our proposed changes and especially are opposed to any reference to procedural fairness and impartiality.

The employers, in response, are seeking to reduce workers’ rights to representation in investigation interviews, and have stated that the employer/investigator should have the right to be able to lie, mislead, and to withhold relevant information during the investigation process.

The Unions strongly oppose this position taken by the employers and will fight hard not just to retain existing rights in the negotiations and conciliation proceedings, but to strengthen them in the interests of having fair, impartial, transparent processes of full disclosure, as well as seeking early intervention in any matter of alleged poor performance by any of our members to sensitively enquire as to whether or not any external issues are leading to, or contributing to, any alleged performance issues.

Would LGNSW agree to have their position also apply to their members (Councillors) who are being investigated for alleged Code of Conduct breaches?

We think not; so why should employees be subjected to any process that includes the ability to lie, mislead, or to withhold relevant information from employees during an investigation.

What’s next?
Keep an eye out for further Local Government (State) Award Updates, and talk to your fellow workers about your Award. If you, or your colleagues haven’t already joined, now is the time to join the Union. Only by working together can we ensure that we have strong pay and conditions.

Also remember, when the time comes to vote on the Award, only Union members will be given a chance to vote and have their say on the Award. Join now at www.usu.org.au/join

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