Everyone celebrates the innocent verdict - except a bastard or two

Sack this council – there is nothing fair about Fairfield

Many members will know John Vuletich and Stephen Poulter. John is the Manager of the Building Control Branch and after 39 years working at Fairfield can properly be described as having given his life to the Council. Stephen is the Coordinator - Fire and Building Regulation and has been there 10 years.

Both are professionally well regarded across the industry, hard-working, supported by their workmates and colleagues, have never had an issue in their employment and they work in a toxic culture where there is no real control over councillors getting down and dirty in operational matters that are none of their responsibility.

Now, two reports, establish that they are innocent.

Fairfield has always taken the view that employees involved in development should do “whatever it takes” to assist applicants to get an application across the line and to ensure final compliance with the conditions of consent. This has been the culture since Fairfield had dirt roads. It’s notorious.

That culture has tolerated the inappropriate involvement of councillors in operational matters. Despite that being clearly prohibited since the 1993 Act - and prohibited even more so by a succession of Codes of Conduct prepared by the Division of Local Government. But the culture seemed to work okay until the politics got in the way and the politicians wanted to nail another politician, and if that meant collateral damage to employees, so be it. Even loyal and well respected employees like John and Stephen.

Both were suspended in May in a vindictive and harassing action with allegations of “gross incompetence”. Both were found innocent of the charges by the Council’s own independent Investigator but were suspended, all up, for 15 weeks.

The concept of an employer having an obligation to provide a relationship of “confidence and trust” to employees has developed recently in the UK and is now developing in Australia. A fabulous coincidence when we look at how employees sometimes get treated (and not just at Fairfield) and a precedent established by the full Court that will have significant ramifications for how employers behave.

depa is not the only union in the industry seeking advice from lawyers on the application of the principles of the judgment for councils, like Fairfield, where members have been treated in a way that doesn’t come within a bull’s-roar of a relationship founded on “confidence and trust”. It’s all going to be about confidence and trust now.

More later.

It’s fairly predictable that the increasing financial pressure on Councils, the likelihood of a serious shakeup leading to amalgamations and other arrangements, and even the appointment of new senior staff and general managers will provide a sharpened focus on making sure that people employed by councils are doing what they’re paid for.

There has been an increase in the performance management of our members over recent months, so it’s timely to say something about job security and how to avoid getting sacked.

It’s not very complicated. The assumption in the employment relationship is that the Council will employ people to do the job competently with reasonable expectations about how much work they do, and how well they do it.

Apart from general managers and other senior staff under the dreadful DLG Standard Contract, no-one ever gets sacked for doing the job properly. But employees can find themselves being performance managed for a variety of reasons and they can include being lethargic, hopeless managers of time and process, failing to accept their accountability and that some things are their responsibility, imprecise, slack on making sure documents are right, lazy and a whole range of other issues. We’ve had members asleep at their desks, habitually and chronically unpunctual, unreliable, bullying etc etc.

When a Council begins a performance management process they do so with the expectation that the employee’s performance improves. It’s easier for the Council to have employees performing competently than it is to keep performance managing people who are not. Existing employees have an advantage over an unknown replacement because they are familiar with the area, often have considerable corporate knowledge, understand the values of the organisation, and so on.

No one likes sacking people, even people who are hopeless. Sorry about that, but there are some. Clearly not our members, of course.

If He Wins You Lose

There have been times in Australian politics where people actually liked political leaders. Sometimes even loved them.

People loved Gough, thought Hawke could walk on water and even loved Keating, people liked Malcolm Fraser more after he got out of politics, as they did John Hewson who became a climate change warrior because he thought it was smart economically to move quickly to a low carbon economy, people didn’t really like John Howard and the extent of that dislike was clear when he became only the second Prime Minister to lose his own seat at the same time his government was defeated in an election but really, no one has liked anyone much from the major parties since.

At the same time that we struggled to find political leaders we liked, the intellectual level of political debate collapsed. Focus groups, cheap shots, fear mongering, a lack of vision, climate change is either “the greatest moral challenge of our generation” or its “crap”, it’s all very, very disappointing and depressing. We are a smart, multicultural and dynamic nation, we really deserve better. We’re even crap at sport now, so we don’t have international sporting success to distract us from the uninspiring political misery at home

But we know that a Coalition government is always going to be more hostile to employees and your rights at work. We know that WorkChoices, that creature of the Howard Government, opened the floodgates to individual contracts, and reduced rights to fight unfair dismissal and significantly reduce rights generally. In the current debate about industrial relations, the Coalition is quite open that they want to swing back the pendulum away from employee rights to increased rights from employers.

Increased rights for employers, means trouble for you.

The illustration in this article comes from UnionNSW’s election campaign, we are an affiliate, as are all New South Wales unions and it does sum up the difference between Labor and the Coalition on your rights at work.

Still, we are not a political organisation, we don’t favour either or any side as a matter of policy and we are clearly quite happy to attack planning ministers and Governments of either persuasion. But, when you make up your mind about what to do on the 7 September, if issues like climate change, economic management, refugee policy, or even gay marriage aren’t enough for you to decide, think about how it might affect you at work.

Planning and Infrastructure Director-General Sam Haddad last week conceded that the White Paper process has “gone further than the government intended” in reducing the community’s ability to fight bad decisions.

He also conceded that Department of Planning staff may have unintentionally spread “inaccurate or misleading information” about the changes.

What a mess. Originally easily characterised as dismantling the checks and balances of the current system to provide free kicks to developers, this most recent confession can only confirm the worst.

It seemed pretty obvious right from the start that the Government was trying fool the communities of New South Wales by hiding the slashing and burning behind a boast of a more consultative process which would allow greater input at the beginning - so that everyone had an opportunity to be involved in the process of what could be built and where.

But the dreaded page 57 of the White Paper gave it all away by providing an illustration that showed that applications that didn’t come within a bull’s roar of the locally arrived at development instrument, could still be assessed on a merit basis by a Council, or a planning committee or some other faceless people.

Why bother, unless all you’re trying to do is to hide that the real intention was to abandon historic protection of heritage areas; misrepresent that all planning would have biodiversity at its core, when it did no such thing; and quash effective and consultative town planning practices and set up a free for all where developers could build anything, anywhere they wanted?

While Councils (and many of you in developing these documents) have identified fundamental flaws in the overriding strategy as well as the details of the legislation, it fell to the Better Planning Network to squeeze the confessions from Director-General Sam Haddad. A voluntary organisation with a tiny core of activists, but more than 400 affiliated community groups, had nailed the Government on something when no one else had been able to land a blow.

But we know, because members tell us about their experience in discussing these things with officials of the Department of Planning (probably including those whom Sam agrees may have unintentionally spread inaccurate or misleading information) that local government concerns and observations about the effect of the White Paper have gone right over the heads of planning bureaucrats.

The BPN also nailed the Director-General on their claim that “ecologically sustainable development” was enshrined in the draft legislation when, Haddad subsequently agreed, these principles were not “expressly referred to” in the bill. The Sydney Morning Herald quotes Sam as describing an earlier departmental response to the contrary as “regrettable”. Regrettable has to be the biggest understatement. And similar allegations can be made about the way they have incorrectly responded on the protection of heritage and the role of the Heritage Council.

Well, it is a mess and the whole fiasco should be put on hold and they should start again.

We like the Better Planning Network. A tiny core of activists has blitzed the Government and the media and identified the fundamental flaws in a way that Councils couldn’t. After all, the Government already thinks the councils only respond to the White Paper to protect their own turf, so why would they listen to them?

Here is a link to Sam’s confession and here is a link to a general article about the fiasco in the Herald last weekend.

And everyone should remember that while you might be local government employees you are also citizens and residents and have an interest in making sure that some boofhead, money-hungry developer doesn’t build some monstrosity next door to you.

The Committee of Management resolved on Friday last week to forward to you all a link to the BPN petition. Here it is, print it, get it signed and get it in ASAP.

Good planning can add value and pleasure to people's lives and the well-being of communities. Bad planning can destroy lives and communities. The NSW Government is reviewing the 30-year-old planning system which, given the sad and unhappy context of recent experiences under the previous government - where it became a developers’ playground and where former Sydney Lord Mayor Frank Sartor (back in the day when we liked his pronouncements about planning and private certifiers) ridiculed the Land and Environment Court by referring to it as the Land and Developers’ Court – is not before time.

The previous Government became notorious for removing planning powers from councils for "state significant projects" and the gradual decline in the quality of our built environment accelerated. We applauded the incoming State Government for the immediate removal of the infamous Part 3A. And we happily accepted the opportunity to have some time with Tim Moore and Ron Dyer who started the "clean sheet of paper" review.

It's not just Maria and the von Trapp family who understand that it makes sense to begin at the beginning and, as the plucky Maria sang, "it begins with doe". We just hope it doesn't begin with “dough”. Developers have had it delivered to them on the plate for too long and it's time the needs of the community become the first priority.


The Cooma-Monaro Post ran this headline on 18 July - as a lead into a story about a bloke called Andrew Thaler who had been thrown out of the July meeting of Cooma-Monaro Shire Council for not apologising for accusations levelled against Council staff at a previous meeting.

If we had a dollar for every ‘public nuisance’ not evicted from a Council meeting over the years for refusing to apologise to staff, or even a dollar for those comatose mayors, or deputy mayors, or even general managers who allowed allegations against staff to continue unchallenged, we could buy a coal mining lease from someone's mate in the Hunter.

We've railed against belligerent councillors and members of the public now for more than a decade and managed to extract apologies from most. Peter Hurst originally told us he would apologise to staff at Wagga Wagga but then reneged, we've had members with bans on councillors and others until apologies are extracted, and even members on strike.

Yes, the year is getting on and it won't be long now until December when we announce our awards for the worst HR in local government. Won by Bankstown and Taree in recent years, there are some new contenders already.

Lismore simply can't help themselves; Singleton has gone hard after we stopped them removing concession days just before Xmas last year; Lake Macquarie is afraid to manage relations between smart women, conducts partial and inadequate investigations and one bloke who should know better thinks it's clever to boast that he always measures low in emotional intelligence, so managing sheilas is a bit of a challenge for him; Richmond Valley is close to being a nominee.

The GM at Harden Shire has to be an early favourite for inviting himself to the meeting of the Consultative Committee (when ordinarily it is the Consultative Committee that does the inviting) and haranguing everyone into adopting the industry Alcohol and Other Drugs guidelines. Having the Consultative Committee involved in this process only really works if it is dealt with in the consultative way.

We survive because people join to be informed about what's going on, to have a say in advancing or in protecting conditions and as a form of insurance in a fairly hostile and unpredictable political and employment environment.

The insurance aspect is like insuring anything. You insure it in case you have an accident, or someone breaks into your house or it burns down and you know you can't ring up an insurer, tell them that you always meant to be insured and that you support insurance, pay for the next 12 months and then make a claim retrospectively. It would be unusual to think otherwise but sometimes we do see people wanting action on things that happened three years ago.

But people do join unions hoping that the union can do things for them that predate their membership. Whoops, I just got my third warning, or the grievance I filed myself has been rejected, I'll join the union for help.

We have been flexible about this. We are soft when it comes to helping people at work and we've been prepared in the past to have new members make a financial contribution equivalent to what might seem like a reasonable period of membership, sometimes two years for big issues, but no longer.

Start with a policy of no forced amalgamations and entice 152 general managers and mayors, some representatives of the Local Government and Shires Associations (more councillors from the councillors lobby group) and the Local Government Managers Association (more bean counters from the managers lobby group) to Dubbo for a couple of days and what do you get?

Well, it's a bit hard get the full picture to the yet but one thing you'll get is a review of that policy which may result in forced amalgamations, a broader and more dramatic commitment to resource sharing and potentially significant changes across the State. And, you might get some changes to the Local Government Act as well.

The Division of Local Government didn't invite the three local government unions to participate in the Dubbo talkfest. Historically they aren't very good at involving the unions in things that are clearly industrial in nature - such as the development of the Model Code of Conduct, or the Standard Contract for Senior Officers etc - so no one was surprised that all we got was notice that the talkfest was on and the DLG assuring us that if anything resulted of an industrial nature, they would let us know.

The Government announced that it had established a Review into the Act and appointed former Liberal member for Gordon Tim Moore and former ALP member of the Legislative Council Ron Dyer to conduct it. We met with them on 12 August at their invitation as part of speaking to organisations in the industry with an interest. They wanted a broad brush discussion.

The Committee of Management had met earlier in the day and we had that discussion. It was also timely for the Committee to appoint our Gosford delegate Jo Doheny to a vacant position on the Committee because Jo is a strategic planner. The Committee resolved some broad approaches, these are incorporated into a some broad observations and Paul O'Brien, Jo Doherny and I had an hour and a half with the Review that afternoon.

The Review is starting with a blank page. Apparently with no direction from Government but with a claimed open mind about how planning and development should be managed in the State.

It would have been unrealistic to assume that the relatively benign process established by the BPB to accredit council employees would continue forever. It would also be unrealistic to expect that the zealots on the BPB might contemplate how the accreditation of council employees process has gone, whether it has added value to the quality of development control and the construction of buildings, or whether it has been largely irrelevant, before they went any further.

But no. The BPB remains committed to rolling new council employees, or employees trying to upgrade their category of accreditation, over to exactly the same qualification and experience  requirements as private certifiers.

This, despite the industry having told them for years that while private certifiers do certifying full-time, council employees do many, many other things. While requirements for someone doing something full-time may need to be rigorous because if they don't do anything else they don't need training or qualifications in those other areas, forcing that degree of rigour onto someone who does it only for part of the job, makes no sense.

Gosford Council has accepted the recommendations made by IRC President Justice Boland after their dawdling, hopeless and sub-professional investigation of one of our members (read the letter from Gosford here).

A well-attended meeting of depa members at Gosford (we have 35 members there) on 3 August resolved unanimously not to have any role in any investigation conducted by the Council until the investigation policy and practices are reviewed with the unions consistent with the recommendation of Justice Boland.

But Gosford being Gosford can't seem to do anything quickly and it led to an interesting communication as we tried to hurry things along with their Director of Organisational Development Terry Thirlwell. It certainly put a smile on the faces of our members at Gosford and after all of this thoughtful stuff it might put a smile on your face too.

We will meet with Gosford at the Local Government Association’s office as part of the review on 30 August.

The bigger they are, the harder they fall.

Gosford has always been a very difficult and uncompromising Council to deal with.

It is the only Council where we had to use the Industrial Relations Commission to make them agree to a protocol in 2004 undertaking to respond to our letters. It’s the Council in 2002 that insisted on putting managers on contracts where we made them insert, for the first time, a clause saying that the contract would be renewed if the employee performed satisfactorily and it’s the Council, in 2000 after a long-running dispute involving depa complaints to WorkCover, we made spend $1.1 million on a new air-conditioning system in their Administrative Centre in Gosford.

All this time, the human resources management policies have been hard and unwavering.

On 29 July, the President of the Industrial Relations Commission Justice Boland, handed down a Statement and Recommendation in a dispute we had run for a member the subject of a clumsy, ineffective, biased, sub-professional and dawdling investigation.

Clearly there is a limit to how long even the most obstinate people can dig in and refuse to admit they were wrong. For Blayney Deputy Mayor Kevin "Big Kev" Radburn it was nine weeks.

It was nine weeks from his unacceptable behaviour at the 9 May meeting of Blayney Shire Council (where his observations, we believe breaching the Code of Conduct by attacking staff) and made after warnings by the Mayor until his letter to the General Manager on 19 July apologising and committing to trying to be good.

Amongst other things, Big Kev confessed:

"I now realise there may have been a better way of conveying my views to the meeting. It is obvious that the staff member has taken offence and that is a matter of regret to me. I also regret my words have been taken as an attack on the integrity of the employee concerned will stop I appreciate the efforts of staff and know we must all work together to provide good local government for Blayney Shire.

I am now better aware of my obligations in relation to Code of Conduct and staff interaction and I will be aware of those obligations in my future dealings with staff."

So, that's the way the dispute ends, not with a bang but a whimper.

Copyright © 2017 The Development and Environmental Professionals' Association (depa). All Rights Reserved. Webdesign: Dot Online