November Newsletter Issue 46

Leaving aside the dismantling of community participation and certainty under the guise of planning reform, the NSW Government has already announced five separate investigations into local government and last week we received an invitation to participate in a “Council by Council audit of the existing infrastructure backlog in NSW”. That makes six. That’s a lot of activity and introspection.

It’s always nice to be invited to participate. No one wants to be the only person in the office left off an invitation list to a party or a wedding or whatever, but we are increasingly getting to the stage that it’s a relief to already have an appointment at the designated time and have an excuse not to attend. Having to wash our hair sometimes isn’t good enough.

Everyone has noticed that the Dubbo talkfest known as Destination 2036, with its Working Parties flailing around trying to create efficient structures while at the same time avoiding amalgamations, is now being stared down by the Independent Review Panel which is starting with a blank sheet of paper and looking at amalgamations - amongst other options.

And the Acts Review, including reviewing the employment provisions of the 1993 Act, overlaps with the Review of the Standard Contracts for GMs and Senior Staff.

Here is a quick summary of where we are with the five reviews:

Destination 2036 and the working parties

In the September issue we wondered whether things could get worse - opportunities for groups of dilettantes with an interest in reforming local government by looking at employment practice, and if there was ever any doubt, the approach of Working Party 1c makes it clear that the answer to that rhetorical question is sadly, yes.

Working Party 1c is charged with the responsibility to “explore opportunities for increasing flexible working arrangements to support a variety of models of local government”. The convener of this group is David Aber, General Manager at Moree Plains Shire Council and David has invited members of the Working Party to answer questions like these:

Clearly this group is our worst nightmare. It would have been more appropriate, less revealing of the hidden agenda, less threatening and more open-minded if the first question had been “are there any barriers in the Award to the efficient operation of councils?”

There are many barriers in the Award that could be seen by the reformers to prevent efficient operations – there is a restriction on working hours, standard 35 and 38 hour weeks, requirements to pay overtime as a penalty for working antisocial hours or days, flexibility for family purposes, parental leave, public holidays, minimum salary and wages levels, for a start - and we are entitled to be sceptical about the value of this group if this is the sectional and narrow focus through which they will see the possibilities of reform.

Being less predictable would have been a good start.

And the last two dot points are simply embarrassing. “Best practice” in what? Imagination from general managers?

Independent Review Panel

This group has the most immediately likeable panel members and a collective expertise beyond the limitations of New South Wales - in particular from two of the panel members, Professor Graham Sansom and Ms Jude Munroe.

They have none of the artificial restrictions of the working parties and the Independent Review Panel will have the most challenging, but probably also most practical and longer term suggestions to make to Government. They also have the most entertaining publications. Their July 2012 Consultation Paper on page 3 listed some of the issues that they are dealing with which won’t be considered by the Destination 2036 groups.

Under the heading “Did you know?” They list a number of the interesting demographic issues relevant to their focus:

How’s that for a great summary of the big issues, none of which fall within the province of the Destination 2036 working parties - and the artificial restrictions imposed by the mayors and general managers in Dubbo - or the NSW Government and its reluctance to bite the bullet on Council size.

The Panel is convening a round table discussion group on The Future NSW Local Government Workforce and another on Achieving Local Government Financial Sustainability on Friday 23 November and we will be attending.

Local Government Acts Taskforce

This group has been charged with the responsibility of writing a new Local Government Act. Chaired by former coalition MLC John Turner (involved in the development of the 1993 Act), Gabriel Kibble, Dr Ian Tiley (a former shire clerk, former mayor and councillor with more than 50 years experience in the industry) and Stephen Blackadder, a former GM with a long history and now an active recruitment and general consultant in the industry, they are enthusiastic about their blank sheet of paper.

Together with the LGEA, we met with them on 23 October and provided a list of employment related provisions within the current Local Government Act that we would like to see changed in any new legislation. 

We are particularly keen to press this group to improve the protection of staff against attacks by councillors, some general tidying up of incomplete provisions within the current Act and to review the intention of section 340 (to remove senior staff from access to the IRC and its industrial instruments) because a judgment of the IRC that senior staff have access to the IRC for orders to be made under the unfair contracts provisions compromises the intention of 340.

While not specifically within their terms of reference, the existence of a standard contract and the removal of flexibility for a Council and the GM to reach agreement on different but locally more appropriate arrangements, needs to be reviewed here as well as within the working party reviewing the standard contracts.

Working Party to review the GM and Senior Officer Standard Contracts

In a meeting with the destination 2036 Implementation Task Force, the LGEA was able to get them to agree to invite the unions to participate in this working party - a nice change from the partial approach of the employers’ organisation, the Division of Local Government and the LGMA who were jointly responsible for the dreadful first draft when the standard contract was developed.

There are many things we don’t like about the standard contracts. This shouldn’t be a minimum on the payment made if a Council wants to terminate an employee for reasons other than performance. One of the problems historically in developing employment arrangements in local government has been that the bureaucrats of the State Government don’t really understand the vulnerability of local government senior staff. There is no sympathy for the idea that someone takes up the general manager’s position, uproots and moves their family into a new area, sometimes even a different state, and then finds that a difficult Council simply doesn’t like them and for the minor cost of 38 weeks pay, can send them and their family, packing. Councils with bad reputations or wanting to attract the best candidates should be able to reach agreement on a higher payment figure if the contract is terminated by the Council under the “for any other reason” provision.

There should be an ability for more lucrative performance bonus arrangements, more flexible leave, better protections against termination, an ability to continue payment for untaken sick leave where it is an existing condition of employment anyway, etc.

We know that the standard contract was developed only to prevent local government GM’s receiving protections and entitlements beyond those regarded as acceptable by the bureaucrats in the DLG and the NSW Cabinet Office. This should change.

Regulation review by IPART

Uh oh, a Government with an unashamedly pro-business approach is setting local government up for a fall by asking the Independent Pricing and Regulatory Tribunal to find “$750 million in reduced ‘red tape’ costs to business and the community by June 2015” and part of this is asking IPART to conduct a series of reviews to reduce what they describe as “unnecessary regulatory burden” … “in local government compliance and enforcement activities”.

A real shot across the bows of organisations like ours with members involved in compliance and enforcement, so quite a surprise at the Riverina group conference of AIBS and EHA that neither of those organisations saw fit to mention the issue, nor to subsequently make a submission.

We emailed a response defending regulation and this has been accepted by IPART as a submission (despite its informal style) and some paragraphs of the submission were printed in the Local Government section of the Sydney Morning Herald on 6 November - prefaced by the introduction “submissions to an inquiry into ways of reducing the amount of red tape in local government include one defending the need for it.”

Here is our defence:

I hope there is some sympathy in this process for the awkward position in which local government finds itself. The State legislates regulatory roles for local government and then hopes for the best. The continued operation of rate pegging (which artificially restricts councils from setting rates in a way which would allow them the ability to resource the regulatory functions obliged to be carried out by the State) creates an impossible situation. I hope as part of your review, that you, like pretty much everyone else these days, can come to the conclusion that rate pegging must go.

My own experience of being in this position almost since the war (actually since 1984) is that no one likes regulation, particularly businesses, until something goes wrong. Developers don't like people making judgments about what they can and can't build or where they can or can't build it, people running food premises would rather make their own judgments about food safety and hygiene, people with cooling towers like to think she'll be right, and then suddenly something is built poorly and falls down (or catches fire), there is an epidemic of food poisoning, or an outbreak of legionella, and everyone wonders why the regulators haven't been more effective.

My experience is that when these things happen, the community calls for more inspections and more regulation, and governments - despite their enthusiasm for allegedly reducing regulatory burdens - flails around looking for someone to blame. Wait till the Coroner deals with the recent fire at Bankstown - those who have allowed developers to buy their own certifiers and those who talk about unnecessary regulatory burdens in building quality and safety will be the first ones flailing about and pronouncing their own blamelessness.

I have read your Local Government Compliance and Enforcement - summary of Issues Paper, and the Government’s Terms of Reference for the Red Tape Review of Licence Rationale and Design and Local Government Compliance and Enforcement. The terms of reference prejudice the investigation right from the start - everyone hates the concept of "Red Tape" because that is a judgmental and negative description of requirements and regulation. I know you say that red tape is a really "unnecessary regulatory burden", but it's all relative. What a pity that you have to begin from this prejudicial start.

What hope is there that you can do anything other than concur with the implications of the concept of “Red Tape” and find that all this silly stuff really does get in the way of people working hard to  build and develop poorly without proper regard to building quality and safety and inflict upon us unsafe and unattractive buildings; who pollute and degrade our urban and natural environments to everyone's disadvantage; who ignore the proper protection of our coasts and native vegetation so that we all lose things that are irreplaceable; who ignore food hygiene and poison us at dinner and other mealtimes; who ignore hygiene in skin penetration and pass on a variety of diseases; who were negligent in the management of their cooling towers and every now and again we have a legionella outbreak and find something has to be done to reduce "the unnecessary regulatory burden"? I could go on.

Still, being an optimist, maybe you can find that regulation is necessary and burdens only those who don't accept that advanced and modern societies develop expectations that Government (in whatever form) will look after them and protect their health, safety and well-being, their communities, their environment and the planet. I hope so.

You can assume from this that we are interested in talking to you, and I look forward to it. Maybe you can reassure me that we need not fear the worst.

We meet with IPART this Friday.

Infrastructure Audit Reference Group

This group will be chaired by a representative from DLG and involve IPWEA, LGSA, LGMA, APESMA (they probably mean the LGEA), Institution of Engineers Australia, USU, depa and the Department of Planning and Infrastructure and will therefore in the discussion and exchange of information about local government infrastructure backlog issues, formulate findings from the audit with the DLG Infrastructure Audit Project Team and act as a communication link between the team and industry stakeholders.

Our invitation is either driven by a desire to get some interesting and good company into the Reference Group or the DLG has been given a bit of a kick in the tail by the Minister’s office not to exclude us.

Either way, unless anyone can ring and tell us why we should participate in this over the next few days, we will probably pass.

Review of working parties, reference groups and taskforces carrying out Local Government Review

Yet to be announced, this working party is obviously on hold until the significant overlapping, under lapping and confusion between the already competing six reviews becomes unmanageable.

(This is a joke. At least, I hope it’s a joke and not something that is later revealed when someone else in Government draws the same conclusions that we have.)

The September local government elections changed the political complexion of many councils and in the Hunter has delivered up a bunch of deniers of climate science and developers. Partially the responsibility of the unattractiveness of NSW Labor, voters have clearly wanted change.

But voters do need to be careful about what they wish for. Winston Churchill famously observed that “the best argument against democracy is a five-minute conversation with the average voter” and looking at Newcastle and Wyong, it’s hard to argue.

 The new Lord Mayor of Newcastle is a property developer, Jeff McCloy. Councillor McCloy is a significant and accomplished developer in Newcastle and will now preside over a Council making judgements about his own applications. Employees of the Council would need to seek the general manager’s approval under section 353 of the Local Government Act for anything that conflicted with their Council responsibilities and we assume the Councillor McCloy will make his conflicts public and manage them well.

But unfortunately he comes with some embarrassing baggage. A denier of the science of climate change, on 6 March the Sydney Morning Herald quoted him as contemplating leading a class action suit against Lake Macquarie City Council for “falling for this unjustified, worldwide idiocy about sea level rises”. That would be the projections done by the CSIRO based on econometric analysis of decades of climate data.

And, as a man prepared to put his money where his mouth is, he convened a public meeting of discredited critics of the science like mining company director and University of Adelaide geologist Professor Ian Plimer to preach to those who also don’t want to accept the science. A Professor of geology talking about a different area of science in which he has no expertise or credibility is like going to a dentist or a knee surgeon if you have a problem with your brain.

Anyway, no such class action has begun and Lake Macquarie is not the only Council dealing with new councillors who want to allow people to build on flood prone land and in areas where the science says there will be tidal inundation.

Prior to the election McCloy made it abundantly clear that he was dissatisfied with staff processing DAs at Newcastle - he thought that the redtape culture “is stifling small business and frustrating ratepayers, so I will seek a streamlined approach to development applications and review conditions of consent to ensure we are not placing road-blocks in front of moving our city forward.” I think we’ve heard this before from developers - why do they need to make an application at all?

Clearly Councillor McCloy, denier of climate science, developer and successful businessman has plenty to offer the Council. In a broad ranging attack in the Newcastle Herald on 10 November he wants “to trim Newcastle City Council staff and open up tenders to private enterprise, saying “bizarre” procedures have stunted growth in the city.”

He has already questioned the forthcoming Enterprise Agreement discussions by describing an invitation the Council sent to all employees to make suggestions about what the EA should include as “the most bizarre way to run an EBA or to change an EBA that I have ever seen”.

He also wanted “every job” to be allowed to go to private enterprise for tender.

One of the joys of local government is that people who don’t understand that it operates within a legislative framework often get elected with agendas that sound naive, innocent or sometimes even ignorant and foolish. How would the poor new Mayor know that the current EA has processes regulating tendering and staff reductions?

And how would he know that the only responsibility an elected Council has to staff is found in section 8 Council Charter of the Local Government Act where, amongst other things, it is charged with the responsibility to be “a responsible employer”?

Well, he could ask someone who knew. As a developer, if he wanted to build something he would surround himself with people with proper qualifications, experience and capability. He would rely on their advice, if it fell outside his own expertise, and he wouldn’t assume he knew everything.

That would be a valuable approach to apply at the Council lest he sound like a man who thinks he knows it all but doesn’t understand anything.

The USU has already filed a dispute over these statements and his challenges to processes already enshrined in the existing EA. This sort of sabre rattling is both unattractive and unacceptable. It’s all well and good to be Chichester during the election, but once elected, there are codes of conduct to comply with and legislative frameworks providing restraint and direction.

We will happily join the USU when the dispute comes on in the Commission to ensure that the Council understands that it needs to watch its collective mouth and it is the GM who is responsible the day-to-day operation of staff, and not the Council. We will also need to ensure that the GM understands that his role has suddenly become much, much more challenging.