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Published: Monday, 20 December 2021 14:30
How’s HR been this year?
Last year we said 2020 was a year to forget - bushfires, flooding climate change evidence everywhere but still deniers, and then a world pandemic. But 2021 was a serious continuation of the pandemic where it seemed out of control and everything got worse. Lockdowns, huge spikes in case numbers, deaths, and overwhelming pressure on hospitals to cope. In Sydney every day we see more than 2000 new cases, with a majority of unvaccinated idiots and a minority of vaccinated people. And Omnicon.
It may well be that HR was too preoccupied by the immediacy of the health and safety risks in the workplace from COVID to behave badly - surveys of staff universally indicating a preference for all employees to be vaccinated and gradually as we come to the end of the year, most councils moving towards mandatory vaccination with deadline dates, for those wanting to give everyone plenty of notice, into February.
All those councils surveyed staff, but one Council, Wollongong, didn’t survey staff and reckons that their workplace risk analysis showed they could manage the risk of infecting employees at work by careful placement of workers, appropriate physical distancing, keeping people working from home and without requiring mandatory vaccination. All those councils that have introduced mandatory vaccination had also done workplace risk analyses showing that they couldn’t manage the risk without ensuring that the workplace is restricted to those who are fully vaccinated.
It’s a significant risk, prosecutions for breaches of the Work Health and Safety Act 2011 can result in massive fines and changes to the Workers Compensation Act 1987 this year introduced, in section 19B, occupations “where work is presumed to be the substantial contributing factor to contracting COVID-19 unless proven otherwise”. While local government is not expressly provided, there are employees within the industry that fit within those industries and occupations that are prescribed, but the point is made. That presumption makes the employer’s position even more at risk.
Councils are now better informed about working from home with significant evidence over the year of continued productivity while not in the office. No longer will the old-fashioned managers (and not all of them old blokes) reject working from home proposals because now evidence can be provided, and their decisions examined. Even Clarence Valley has softened.
One of the significant changes in the Local Government State Award 2020 last year was the obligation on employers in clause 9(i) to “provide adequate staff and other resources to enable employees to carry out their duties and functions over the course of working hours that are not unreasonable...”. This was a change made after a formal hearing before Commissioner Murphy where LGNSW, on behalf of those councils reluctant to accept the obligation, were overwhelmed by our argument of the reasonableness of this requirement. It is, almost hilariously, a provision of the standard contract for senior staff, it’s a common law assumption, and now it’s an Award obligation. There is nowhere to hide.
Councils need to be wary of their obligations under clause 9(i).
Now, for the thirteenth year, here are our nominees.
Narrabri
Narrabri GM Stewart Todd is no stranger to depaNews. One of the general managers (and one administrator) who have appeared in depaNews, photoshopped with a butchers’ knife and covered in blood after sacking senior staff without notice. He had also acted contrary to section 337 of the Local Government Act 1993 in putting our member on the senior staff contract before the Council had resolved that the position was senior staff, and in terminating him, failing to consult with all councillors. The Office of Local Government did something about this (!) by circulating advice to all councils that all councillors needed to be consulted before an appointment and a termination or they breach the requirements of section 337.
When depa pursued the termination of our member in the Supreme Court, the GM went hard, contesting the jurisdiction of the Court to hear a section 106 Unfair Contract argument for a local government employee on the senior staff contract - a case the GM lost.
And just as well that he did lose: a successful challenge to the Court’s jurisdiction would have removed any hope for senior staff to have considered the circumstances of their termination, and whether it was fair or not. Why it seemed like a good idea to take deliberate action to challenge jurisdiction, that if successful would have prejudiced the rights of all senior staff from having access to a tribunal, beggars belief.
The circumstances themselves were salutary for the industry. It sat in the background with the ICAC’s Dasha recommendations as contributing factors encouraging LGNSW to alter their historic position defending the senior staff contract and protecting senior staff being sacked for “no reason”, to allow us to have a common view in the industry. As they acknowledge, LGNSW has been involved in unfairly sacking more senior staff than anyone else.
We are building on this common view now by pressing the OLG and the Minister for Local Government to make amendments to the Local Government Act to ensure that the only senior staff member is the GM and that all other senior employees are covered under the Award or Council Enterprise Agreement, if there is one.
Narrabri is not a happy place. Since our member was sacked 2 ½ years ago, forty other employees, predominantly indoor staff, have left the organisation. Some under duress but most unhappy about the culture. Forty employees from a salaried staff of around eighty – a staff turnover figure unrivalled in the industry, anywhere, ever.
And the allegations are that a disproportionate number of women have fled the Administrative building, claiming harassment and bullying, as well.
It’s no wonder the Council last year paid more than $1 million for their Workers Compensation premium.
Narrabri, or really GM Stewart Todd, gets a nomination.
The new Council needs to be reminded that the Council’s Charter in section 8(1), amongst other things, requires that the Council is “to be a responsible employer”.
Newcastle
The three unions negotiated a new Enterprise Agreement with Newcastle City Council in late 2018. The burning issue for everyone was the Council’s dawdling over the years with the urgent need to review the salary system. For professional employees, the system was uncompetitive and did not assist the Council to attract and retain staff.
There was a new CEO appointed in December 2017, Jeremy Bath, with a history of managerial positions outside local government. While the most senior employee representing the Council was Fiona Leatham, appointed as Director of People and Culture in June 2017, the negotiations were really conducted by Rod Harrison, the retired former Deputy President of the IRC operating from Newcastle, and highly respected by both employers and unions.
From inside HR we’d been told “the salary system is a long-running issue so it is fair that the employees are frustrated by that. The only way we can build back trust is my following through with the commitment.” This was the commitment in the EA to have a salary system review “as quickly as possible” and while the unions pressed hard for a date to be included in the three-year EA (meaning that it would come to the end of its term in December 2021) the Council refused - and sold to us by the former Deputy President on the Council’s behalf as “it is what it is”.
Equally of course, it isn’t what it isn’t, and while the unions would have liked deadlines during the three years as a target, there was always the default deadline of the end of the three-year term.
Clause 13 obliged the City to “conduct a salary system review that is Award compliant, relevant, equitable and industrially sound. The salary system review will commence 2 months from the date of approval of this Agreement by the NSW Industrial Relations Commission and proceed as quickly as possible”. What could possibly go wrong, the Council had 34 months?
depa members initially voted to reject the EA, having no confidence in management doing the review and finishing it within three years. A second meeting reluctantly accepted the offer, requiring depa to write to CEO Bath advising “there was significant concern about management’s commitment to this process and, in particular, a lack of confidence in the City’s commitment to review and develop a new salary system”, reiterating, “and in particular, concerns about the City’s commitment to carry out the salary system review without the assistance of the IRC.”
Our members were right, these are slippery bastards, arguing only in the last fortnight as we got closer to the deadline imposed by a three-year term of 31 December 2021 that there is really no deadline at all. They wouldn’t give us a date during the three years but the three-year term of the EA imposed one, whether they liked it or not.
A week before 31 December, we find ourselves in the IRC on Thursday 23 December arguing about whether there was an obligation or not.
The charming Fiona Leatham (who has had two resolutions of USU meetings calling for the CEO to sack her) in a letter to the unions on 13 December accused the unions of “false claims”, but if you run HR, you should know an EA has a three-year term.
It’s hard to understand the City’s argument. Why would they have a commitment to move “as quickly as possible”, if they never intended or felt obliged to have a system operating within the life of the EA? This can only make sense if our members were right at the first meeting and they are employed by people who are untrustworthy and were consciously misleading everyone - a giant hoax perpetrated by management on the employees.
Port Macquarie Hastings Council
In the dull old days before the 1993 Act removed restrictions on who could be the GM and do other jobs, the GM was usually a bloke, and invariably an accountant. Everything was predictable, stolid and usually unimaginative.
PMHC last year appointed a new CEO who is none of those things. Dr Claire Allen has master’s degrees in business leadership from the University of WA and “Metaphysics Sciences”, from the University of Metaphysical Sciences in the USA (where else?) which provides “distance-learning metaphysical degree programs studying “the ultimate nature of existence, reality, and experience without being bound to any one theological doctrine”, she couldn’t be more different.
Not just unbound by theological doctrines, for the past decade she has been “Full-time” Managing Director of “Dr. Clare Allen and Associates” (two full-time jobs at once would have been a challenge for the Council under section 353) where you can buy her self-help publications and her “Trigger Stones”. For only $150 you can buy a set of four river stones engraved with the letters C, S, K and P, “that will literally change the way you lead yourself and others”.
“I have created the Trigger Stones from a place of deep reflection, knowledge and practice. My mission in life is to unleash leaders to be the best they can be.” I would carry a stone in my pocket to change a behaviour that needed changing. I would give the stone an affirmation and whenever I lapsed into old habits, I would feel the stone and reset my thinking. I was a CEO well before I was 30 years old”. How could anyone not be inspired by that!
Why not offer an economy box of two stones, one with a B on one with an S?
But curiously the eleven months since her appointment hasn’t established Nirvana. It has coincided with a dramatic crash in the relationship between the Council and its employees and plummeting employee morale. Port was a Council that would have been unlucky to have a dispute a year but since the appointment, they’ve had nine. Yes, nine, and one of them was with us.
This was a dispute about a council practice for 180 or so employees providing for a partial payment of untaken sick leave on resignation or retirement. The Good Doctor and her Executive Team resolved that from 11 May, they would freeze those entitlements. None of them had wondered how those entitlements were created, whether they were a council resolution or, as it was put to us by a temp, a decision of HR, or whether they could be unilaterally changed by decision of the boss.
We tried to talk to them, it was like talking to a box of rocks. We had the twelve month temp replacing the capable and much-loved HR manager on parental leave (welcome back, Holly), and a grossly inexperienced HR person – aah, the innocence of youth and self-confidence - who when we did ask about the archives told us that the Council didn’t have any obligation to keep records of any Council body that preceded it. D’oh!
And when we said we would need to go back into the archives because it appeared the policy may have been established way back in 1980 or earlier, the temp accused us of “fishing”, deliberately provocative, it meant we filed a dispute that day.
Five compulsory conferences later, the Council understood why the history had to be researched; maybe understood the concept of contractual obligations; had agreed to do a search of the archives; and agreed to do so with union representative “scrutineers”, so that the unions could be satisfied that the search had been done properly; discovered the policy was a resolution of a Council meeting in 1980 and on that basis couldn’t be unilaterally changed and agreed to a proposal we’d originally made when we filed the dispute to look at options that might encourage employees to voluntarily cash out their existing entitlement; the CEO had attended once under direction of the Commission and in the end the Commissioner cautioned the Council that on the basis of what he’d been presented with, the unions had a 99.999% chance of winning if the Council didn’t reach agreement.
In all, we have written three reasonable and reasoned letters to the CEO and she hasn’t replied to any of them. The last, almost in desperation, was motivated by one of her books, “How to Stop People Stealing Your Joy”. Provided in an email with the subject “Stop thief”, it quoted her wisdom and in response to her words “Your dreams and your hopes are yours to keep” and depa’s role in trying to stop the theft from our members, we’d observed that “it seems incongruous that the thief is at the same time the person encouraging them to protect their dreams and hopes against thieves. How does that make any sense at all?”
In the Commission, she had been asked why she hadn’t replied to that letter and she said she hadn’t because it was “too personal”. She hadn’t replied to the others that weren’t personal at all anyway.
Things have settled now. Cooperatively the unions and the Council have developed a couple of options for employees to consider which are still being fine-tuned. If the Council wants to reduce their continuing financial liability, because it is a contractual entitlement, they can only do it by consent of the individual employees and making an offer for them to sell their entitlement, as done for years by other councils with similar situations. We continue in a cooperative manner, with the temp having moved into another job as the HR Manager returns from parental leave and things, we hope, return to normal.
There are other things as well, they purported to make changes to car practices that are being unpicked at the moment, and have a significant issue about sick leave and workers comp in the compliance area.
It’s time to take the CEO’s advice and feel our stone. Affirm our stone. Or look for answers under a rock, or sticks and stones breaking our bones, or not casting the first stone, or dealing with a heart of stone, or a rolling stone, or a stepping stone, or even a stone’s throw away. Or sensible advice about people in glass houses, or getting blood from a stone, or being carved in stone, or hitting a stone wall, or killing two birds with one stone, or leaving no stone unturned, or a stone’s throw away, or constant dripping wearing away a stone. Or stone the bloody crows.
Or being well and truly stoned. Now that’s metaphysical.
Sutherland Shire
Sutherland won it last year for the CEO and HR’s failure to properly protect one of our members, who had been foully abused by the former Mayor Councillor Pesce - the second time this councillor had done that. He had done so to that member’s manager a couple of years earlier and all because they were doing their jobs picking up significant building and health concerns with his three cafes. And then this time the manager, in escalating the matter and protecting his employee, ends up pursued for doing the right thing, rather than Councillor Pesce for having done the wrong thing.
It can’t be a coincidence with councillors behaving like this that in the last month the Council has had both their Managers of Assessment resign to go elsewhere. There is also a cultural issue of the CEO not coming down hard enough on councillor involvement and behaviour and a degree of hypocrisy about what constitutes acceptable language and where unacceptable language is inappropriate.
Councillor Pesce has still not apologised and to protect Sutherland EHOs, the Council signed a Memorandum of Understanding with Georges River (who also have some problem conflict-of-interest councillors) which meant that the cafes were inspected by EHOs from Georges River, who were able to compile a list of breaches and shortfalls without being abused or threatened.
It can’t be a coincidence when councillors behave like this, that in the last month the Council has had both Managers of Assessment resign to go elsewhere.
This year we’ve had some glaring HR failures. One member had started work at the Council after being offered a market allowance, and then two and a half years later, when the Council tried to argue that the market allowance was in fact a car allowance (!), we were able to ensure that the member was back-paid for ten quarters of the Award car allowance of $2145 per quarter. Just as well the member emailed us and questioned it.
Then members questioned payment for acting in a higher grade because there was an inconsistency between HR’s policy about how it should apply, and the provision in the Council’s Core Enterprise Agreement. Given that the EA has the force of law, it’s either an ignorant or arrogant HR department to think otherwise.
So we’re involved again, cleaning up whatever it is HR had been doing. This time a new Director acknowledged a long history of underpayment, and guaranteed that everyone would be paid properly. As this is all manually done, they’ve started with paying those members who acted in higher grade in jobs from 2020, and now will go back, potentially for seven or eight years.
Finally, and maybe motivated by our exposure of their underpayments under the Core EA, the Council wrote to the unions proposing a review of the Agreement. Something relatively easily done, and prudent anytime for a document that is twenty something years old, but the Council intended that the negotiations be conducted by a commercial law firm with Council directors looking on. Like they’re at the tennis.
Those commercial lawyers proposed that we all sign up to “Good Faith Bargaining Principles” in which, amongst other things we would agree to “refrain from using threatening or abusive language, profanity, language or communication that is intended to be, or is perceived by others to be, demeaning, berating, rude, threatening, bullying, intimidating, hostile or offensive.” OMG, FFS etc! And yes, a standard not required by the CEO of her favourite councillors.
The CEO was accusing the unions of being unable to conduct enterprise agreement negotiations without being under some kind of good behaviour bond. The original agreement was negotiated in goodwill without such a problem and we’ve always managed to negotiate EAs across the industry between union representatives and representatives of Management, and sometimes Management might seek some advice from lawyers, but never have them negotiating.
The unions resisted, all of us offended by the assumption that we couldn’t conduct negotiations with difficult and unpleasant people as the professionals we are, and the review has not proceeded.
What a mess, someone in management/HR thought this made sense…
Sydney City
Sydney City has been nominated every year since 2014 except for last year. This year they get nominated again.
The City has refused to incorporate clause 9(i) into the City Wages and Salaried Staff Award, and in doing so their position has been recorded on the spreadsheet of the interminable negotiations and the progress or otherwise on each of the claims that “depa would like clause 9 of the LG State Award inserted into the City’s Award. The clause commits the City to providing adequate resourcing...”
The City says “the clause does not add value over management prerogative and guidelines that already exist” and their “Concern - The clause would require the City to demonstrate that resourcing was adequate if challenged”!
It says something about an employer that they would resist a provision in the State Award that obliges them to provide adequate resourcing. But it says more about the City when they say it doesn’t “add value over management prerogative and guidelines that already exist”, and then, despite requests from the unions, they haven’t provided what they say to be details of the management prerogative or any guidelines. Could be a pants- on-fire moment.
It’s the usual thing with the City, a progressive façade on climate change, lifestyle, transport and inclusion behind which sit tyrants relying on the ancient concept of managerial prerogative, guidelines they say that exist but they won’t provide, and a fear of having to demonstrate resourcing was adequate if challenged.
And the winner is
Sydney would be a worthy winner for keeping the façade going, and for consistency since 2014, Sutherland is consistent as well and always plumbing new depths, it’s prudent not to disclose much about Lake Macquarie because there is a Workers Compensation case to be resolved in February, we get our day in Court with Newcastle on Thursday, so the winner is Narrabri, and their imposing and influential GM Stewart Todd.
No other Council anywhere, ever, has had such a high level of resignations over two and a half years - not just getting rid of the Director of Environment and Planning but then having him followed by the resignation of the Manager Building and then reshuffling and making redundant the Manager Environment. Not much health, building and planning expertise there these days.
He has provided great services encouraging mobility in employment for those forty employees but at significant cost to corporate knowledge and expertise for the Council and the community. He has been an industry example how not to appoint and terminate senior staff by breaching responsibilities under section 337, and was responsible for OLG ensuring a notice to all the industry so that they didn’t make the same mistakes. He unsuccessfully ran a test case trying to prevent all senior staff across the state, potentially forever, for not having access to a tribunal to test the procedural fairness and otherwise of “no reason” terminations. Well done, Stewart.
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