September depaNews

On Wednesday 14 May 2014, officers from the ICAC raided the Council offices and the home of a Mudgee councillor. The SMH reported this followed allegations of conflict of interest involving land subdivisions owned by Councillor Max Walker and the Mayor Des Kennedy.

The community had watched the Council override its own strategic land use plan approved by the Planning Department in 2011 on minimum block sizes in a subdivision where Councillor Kennedy was a part-owner and which dramatically increased the subdivision’s value.

The investigation continued, poorly resourced, until two investigators spent a week in Mudgee in the second week of August interviewing eleven witnesses. This included the two longest serving directors and one of them was the Director of Development.

It was notorious in the organisation that the majority group of councillors surrounding Kennedy and Walker believed that staff in the planning area had been the whistleblowers. The GM had been told by one councillor that they believed the Director was the whistleblower.

Two weeks after the ICAC interviews in Mudgee, GM Brad Cam sacked the Director of Development and the other Director under clause 10.3.5 of the standard contract for senior staff. This is the provision that allows the contract to be terminated with 38 weeks’ notice for reasons other than legitimate reasons for terminating a contract like unacceptable behaviour or poor performance.

It is the provision used regularly after local government elections where an incoming different power block sacks a GM without disclosing the reasons for doing so.

The decision of the GM at Mid-Western can only be seen as reflecting the view of the majority councillors and their ultimatum to him that it’s the other directors or him.

And it’s action which creates a precedent where, for the first time since the introduction of standard contracts, directors have suffered the same political sackings as GMs.

It prostitutes the principles that underpin the public sector generally that employees of a public authority are there solely to provide advice without fear or favour. It’s part of the protections against political decision-making that underpin the Westminster system but at Mid-Western those principles have been abandoned, dramatically, during an unfortunately slow and under-resourced ICAC investigation.

No employees in local government, regardless of their position, should be vulnerable to being sacked for political reasons. The community can have no confidence in the impartiality of the system if those who administer health, building and planning legislation can’t do the job without fear of the repercussions from councillors with pecuniary and other interests in development.

No employee in local government should be sacked during the course of an ICAC investigation into those with the power to sack them.

These are deficiencies in the standard contract, not acknowledged by the OLG in the 2014 Standard Contracts Working Party where the OLG argued that employment in local government at a senior level is identical in all respects to senior level employment by the State - something demonstrably untrue and clearly evident from LGNSW’s unprecedented response trying to correct Councillor behaviour, the harassment of the GM at North Sydney, the suspension and sacking of the GM/Pizza Man at Hurstville, the stress leave of GMs and harassment at many, many other places.

The OLG, typically, has taken lots of notes, the ICAC, 16 months down the track is continuing the investigation and is unable to protect employees interviewed whether they want to be interviewed or not, and our member, a highly regarded planner with the interests of the community at heart, the support and confidence of her staff and with a high reputation for her integrity and capacity amongst her peers and fellow professionals across the state, has been sacked while the regulators observe.

It’s simply not good enough.

Our fearless prediction that this month we may have seen “some ICAC action at last on the appalling things happening at Mid-Western” was wrong, but unlike Nostradamus, we live to fight on and to do something about it.

We have already raised with ICAC staff the importance of there being some protection for local government employees when councillors or more senior employees of the organisation are subject to an ICAC investigation. This will be formalised in the weeks ahead.

But is anyone going to look after senior staff?

It would be nice if we could rely upon the concept of a guardian angel, keeping an eye on us when we need it and keeping us out of trouble. Awards and industrial instruments of the Industrial Relations Commission and access to the tribunals for disputes over other industrial issues is one way of having protection and security at work. We won’t labour the imagery any further lest it give those remaining members of the IRC an unseemly level of reverence.

The NSW Government in developing the 1993 Local Government Act liked the idea of excluding senior staff from protection and coverage by awards or enterprise agreements and section 340 of the Local Government Act, on the face of it, was intended to deny senior staff access to any of the protections normally available to employees.

But, not so fast. The IRC has determined that it retains the power under section 106 to declare unfair contracts void or to make orders varying them.

That means it would be open to the Commission to make orders varying the standard contract to ensure that no senior staff employee is sacked without proper process allowing the employee to respond and defend themselves.

We are going to look after senior staff, we know so too will the other unions, but this shouldn’t be something that the unions have to do. This is something that should be done by Government. A general collaborative view from the Standard Contracts Working Party that no contract should be terminated under 10.3.5 without proper process allowing the employee to respond has been ignored by OLG.

As we have observed to some of the Minister for Local Government’s staff, while we might have different views about the principles of employee rights at work, no-one would support the political sacking of people doing the job properly. It diminishes public confidence in local government at a time when the public deserves more.

The Phase 1 recommendations for the future of local government reported last month mean that the OLG is recommending more senior employees should be placed on the standard contract. The OLG wants to remove the discretion for councils to determine what staff should be senior staff so that all councils will properly reflect OLG’s anachronistic, myopic and prejudiced view of local government employment.

And, remembering that in 1993 when the Act was first made the DLG wanted to make employees above the minimum rate for band 4 level I of the Award senior staff (currently “remuneration” of $86k) then there are implications here for many employees far, far lower in the organisation.

Section 106 Unfair Contracts of the Industrial Relations Act provides a power for the Commission to declare unfair contracts void or to vary them to remove the unfairness. Orders can be made virtually without limit. The Commission can make orders on contracts that are unfair because they don’t provide protections to stop unfairness - like being sacked without good reason, or for political purpose, or without taking into consideration personal or family circumstances etc.

We’ll have more to say about this in October. Suffice to say that a fair standard contract with appropriate protections would have prevented the Mid-Western political sackings and the community could rely upon continued impartial protection of planning instruments, communities and the environment against any onslaught of developer-driven councillors.

The OLG has been pretty busy and is probably still stinging from it’s embarrassing performance when it attended Budget Estimates with the Minister on Friday 4 September. You’d think, wouldn’t you, that if you were going to turn up at a meeting of the Budget Estimates committee, when your political opponents have the opportunity of examining your budget proposals, that there would be certain documents you might take with you and have safely in your possession.

We all make mistakes, and it’s good to be forgiving, but here is the transcript:

The Hon. PETER PRIMROSE:

I refer to page 8-36 of Budget Paper No. 3 and specifically the revised figure for investment revenue for the last financial year of $387,000. The amount listed for this year is represented by three dots. Can you please explain what this item is and why there is no revenue expected this financial year?

Mr PAUL TOOLE:

I will ask the chief executive if that information is there in front of her.

Ms DOHENY:

The information is not in front of me but I will take that on notice.

Mr DAVID SHOEBRIDGE:

So did you come to budget estimates without the budget papers?

The Hon. PETER PRIMROSE:

I am happy to provide them, Minister.

Mr DAVID SHOEBRIDGE:

Did you come to budget estimates without the budget papers?

Mr PAUL TOOLE:

We said we would take it on notice and we will provide that information.

Mr DAVID SHOEBRIDGE:

You came to budget estimates without the budget papers.

The Hon. SCOTT FARLOW:

The Minister is trying to provide an accurate answer to the member.

CHAIR:

Order! It is the Hon. Peter Primrose's time, Mr Shoebridge

Hilarious, you can almost hear David Shoebridge cacking himself.

While the apologists might like to describe this as a political question, go into denial and try to ignore the dreadful response, the incapacity to answer a simple and basic question about a gap in the financial statements for which you as Minister or CEO, are both responsible, is hard to comprehend.

Nothing from the Minister, nor the Office for Local Government on North Sydney nor Mid-Western but, at last, one councillor has been suspended! It’s about time, it’s been a couple of years otherwise and there is no point introducing a punitive regime that relies upon a limit of three suspensions to be banned, if no one ever gets suspended. The Minister doesn’t bother suspending anyone, even though he is clearly surrounded by dozens of likely candidates.

Apart from some boofhead at Narrabri who was suspended by order of the Chief Executive Office of Local Government Marcia Doheny on 29 May. Two years ago (yes, two years ago) on 13 September 2013, this dope slapped a Council employee across the buttocks “while making comment and laughing”. Now he has been suspended for two months. He would probably regard that as a badge of honour.

Whether Budget Estimates was embarrassing or otherwise, and whether OLG is resting on their laurels for suspending some boofhead for two months at Narrabri for an offence that took place two years earlier, the OLG took off with the threat to suspend Hurstville Council for sacking their GM (yes, Pizza Man) having been suspended since May - a threat so effective it would appear, that the Council immediately resolved to reinstate him.

But he had been suspended since May for what, on the face of it, looked like nothing more than trying to have the Council deal with its responsibilities on a property owned by the Mayor.

So, that’s a tick for our prediction of continued inaction by the regulators.

Of course there are good news stories. Gosford City Council has finally reached agreement with the USU, LGEA and depa over a long-standing and, by their own admission, poorly handled attempt to remove the 4% bonus payment that has been part of the salary system for 20 years.

Facing three days of arbitration at the end of this month and October, and a pretty damn good (even if I say so myself) witness statement rebutting everything the Council was putting in their evidence, agreement has now been reached to preserve $1.95 million of current spend on performance reward in an ongoing way, increased by award increases into the future. An arrangement that will see any money not spent during the performance year rolled over to the following year.

And as part of the deal, a 2% ongoing payment each year as a staff retention bonus. So, that’s another tick.

Pretty accurate predictions then last month. Try harder Nostradamus, go hard or go home!

But the absolute ripper is this …

We’d hate to be misunderstood. We don’t necessarily target general managers who become the president of the Local Government Managers/Poseurs Association. There is a natural attraction, of course, of putting a target on general managers who spend time attacking the provisions of the Local Government State Award - whether that be to slash entitlements or costs or under the guise of advocating better management practices and getting all excited about management excellence.

But it’s always interesting to see how general managers, who do think it important to try to exercise some leadership role in LGM/PA, behave at their own Council. Does it follow that they demonstrate management excellence when they have the opportunity to do so themselves?

depa filed a dispute with Tamworth Regional Council late last year after GM Paul Bennett decided to strip away the nine day fortnight from existing staff.

We challenged him to provide any evidence that the nine day fortnight had compromised Council services. Staff had cooperatively managed it to ensure no loss of services and we were sceptical that there was any evidence to the contrary. Paul was unable to provide any evidence at all, deciding instead to have Dorothy Dix prepare a survey to local developers. Despite the survey’s prejudicial questioning and encouragement of responses that they couldn’t do business with the Council on Fridays on Mondays, he couldn’t get any evidence that way either.

But Paul is as sensitive to criticism as he is to employees not jumping and doing want he wants. He responded dramatically to our report on his treatment in the Commission in the February issue - blowing more than $15,000 by our guess on having a Senior Counsel attend for a less than one hour conference in Newcastle to have the union chastised. The GM, the deputy GM, the HR Manager all attended, all away from Tamworth for the day and obviously not providing services but happily supporting the SC trying to ban depa’s Secretary from continuing to appear in proceedings, to be locked in the stocks etc but all he got from the Commission, even with his SC, was the Commission’s agreement to something that depa had asked for on the very first occasion - namely, that subsequent proceedings be held in Tamworth.

While Paul might be sensitive to criticisms we might make, he isn’t very sensitive to what’s happening amongst his staff.

On 14 August he emailed all staff, (without the courtesy of a copy to us as the notifying union or the other unions) that the “Executive Management Team has now decided not to pursue the transitioning of individual staff away from current work arrangements.”

Sounds like the white flag going up to me. He continued that “our organisation is in a rebuilding phase following the service review process and I would prefer not to pursue the transition of existing staff to a 19 day month due to the impact it is having on our culture.”

Well, durr. Almost 12 months after the first letter telling the unions that he was removing the nine day fortnight, he suddenly realised he shouldn’t try to strip away the nine day fortnight “due to the impact it is having on our culture.” Well done Paul, it’s about time that sunk in. How could he not have anticipated that stripping away the nine day fortnight would have a negative impact on their culture?

You can’t take away an historic entitlement without evidence for doing so, nor can you attempt to bludgeon it through the consultative committee and behave in such a way to our delegate that you subsequently provide an apology.

And even though, in capitulating because it was damaging the culture, he reserved the opportunity of dealing with the area of development control slightly differently - “with an investigation into the specific issues our customers identifies a problem in that area.” Remember here that he hasn’t been able to sustain that their customers identify any problems in the development area. A little bit too much playing the player, and not the ball here.

It was a messy, embarrassing and clumsy process with conflicting messages, clarification the Council didn’t want to remove the nine day fortnight from all staff but they needed five weeks or so to work out those it did, and then five weeks later revealing it did want to remove it from everyone, etc. etc. To call it a farce, flatters it.

Now, not with a bang but a whimper, Paul has run up the white flag. This process won’t win him any LGM/PA awards for excellence in HR management.

Victories don’t come much sweeter than this one.