Losing your job is one of the great stressors of life

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Published: Thursday, 31 October 2024 23:32

One of the worst experiences in a working life is to be forced from an organisation without your agreement, particularly losing your job in a restructure.

No one wants to leave an organisation other than having made that decision themselves.

There are protective provisions in the State Award about process and payments to be made for employees made redundant and historically in the industry, despite the anxiety of the process, there are good termination payments and entitlements, and for many, new opportunities.

When the process under the Award is followed it’s invariably fairly automatic and it was, early in the year at Eurobodalla, where a restructure removed three of our members. One was senior staff as the Director, and under the bad old rules, 38 weeks and no reason necessary. The other two were Managers, one was accepted by the Council to be a redundancy because her position was removed from the structure and the second was potentially a redundancy because there were significant changes to her job and it was going to be advertised externally. The Council would take advice.

The advice clearly allowed the Council to sign Deeds of Release emphasising the terminations were both redundancies and their entitlements enhanced the Award minimum. It was agreed there would be two payments, the severance payments and pay in lieu of notice in February and an agreement that accumulated leave entitlements, annual and long service leave, would be paid in the next financial year, the first pay period after 1 July - to do the right thing by the employees and provide more beneficial tax arrangements in the next financial year.

But, at Eurobodalla, notwithstanding deeds of release clearly establishing they were redundancies, using that exact word on multiple occasions, and providing exit calculations showing the accumulated entitlements would be taxed at “32%”, when the payments were made in July, the Council had decided that they wouldn’t be taxed at 32%, but at a higher rate - causing significant losses for both the employees.

The members tried to pursue this, found the Council unresponsive and unhelpful and we filed a dispute on 4 September. By that stage it was clear that the Council had decided their initial calculations were wrong, and the employees should be taxed at a higher amount, claiming these were not “genuine” redundancies - even for the manager whose job no longer existed. What the? They didn’t confess to it, we had to pursue them and we worked out that’s the mistake they had made.

Unforgivingly, all this happened five months after the employees had left the Council, with no advice to either of them, nor us, that the Council had changed its mind.

We knew the Council had initial reservations about one of the manager jobs, but we’ve been doing this for so long and the view of the industrial bodies is consistent whether it’s the employer’s organisation or the unions, we can be confident about the sort of advice they would have received. That’s why the deeds used the expression “redundancy” on multiple occasions. The concepts of genuine or non-genuine redundancies is alien to local government, this is an industry where you are either redundant or you’re not. Employees can’t elect, out of the blue to be made redundant.

We thought the Council had simply got it wrong, they attempted to have the proceedings confidential and cover it up and were most concerned about the possibility that we might criticise or attack individual council employees when advising members what was going on. We gave an undertaking to the Senior Commissioner “we will not name or attack any individuals who may have been involved in the process at all.” That’s why this article deals with the Council, and doesn’t allocate any responsibility or blame beyond that.

We agreed. No names, to protect the guilty.

The Council told the Commission that they were seeking advice from Maddocks Lawyers. They were reluctant to disclose the questions they’d asked and we were able in the Commission to have them agree that they would provide us a summary of the questions, because, they said, the advice had been sought verbally. The quality of advice often depends on the question asked and the Senior Commissioner described our concern as avoiding “GIGO”, garbage in, garbage out.

The Council didn’t comply with their undertaking to share the questions, it seems following advice from Maddocks depa was right, and the Council could and should tax at 32% and not a higher figure - all that meaning Council’s vigourous and unpleasant responses to everything we ever said, was totally wrong.

The Council conceded they had taxed the employees at the wrong rate and that they would take steps to reimburse the money that had been wrongly taken from their payments as tax. Winner, one for us.

The Council after this folly, owed the employees an apology. We’d raised that beforehand, they should apologise, and not just because they were so disastrously wrong, but for taking so long defending their indefensible position and making the lives of two employees, who didn’t want to be terminated anyway, even worse. Pretty shameful, really.

The Council agreed that they would “reissue” a letter already provided to the members and incorporate an apology. We undertook that we would not publish those letters, we had seen them already, and we had no intention of publishing them.

However, in reissuing the letters, the Council added two paragraphs, one of which was to do with the apology, so we won’t publish it, but then there was this:

Which taxation rate applied to your unused accrued leave payments involved a complex interpretation of employment and income tax law. The initial classification of your taxation rate was made in good faith based on the information available to Council staff at the time your termination payment was made.

Seriously?  They chose to reject the way the industry manages this every single time, they chose to reject the advice they had been given, they chose to do this apparent “complex interpretation of employment and income tax law”, and we’ve seen no actual evidence that they did, but after all the aggravation it just sounds like BS. It sounds like Donald Trump spoke off-the-cuff.

Have a listen, are we right, or are we right?

An immediate favourite for our prestigious HR awards in December.

This news is too good, and it’s true

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Published: Friday, 09 August 2024 14:39

The NSW Government has announced massive funding of training in local government. $252.2 million will be allocated to councils over the next six years to employ 1300 apprentices and trainees across the state. It is planned to be ready and available for school leavers at the end of this year.

This is delivering on an ALP election promise to provide funding to local government beyond the reach of individual councils. We note and appreciate the role of the USU in both the development of the policy and its delivery. Good job, Graeme.

This will train the next generation of skilled workers, keep jobs in local government and reverse the hostile trend of councils outsourcing jobs to contractors.

Contracting out is a poison across the industry, undermining permanent employment and putting many councils in breach of their obligations under the Local Government State Award to provide full-time permanent employment, and not replace permanent employees with contractors.

We pursued Wingecarribee in November 2021, citing their obligations to provide adequate staff and other resourcing. Then followed an extremely slow restructuring process, and a turnover of directors, one leaving instead of “committing career suicide” by participating in a process that wouldn’t be fully funded.

Our members revealed to a new director at a meeting in January that the Council had 18 external planning contractors with live DAs - yes, that’s not a typo, 18. Not just spending more money than would ordinarily be spent on full-time staff but requiring planning staff to manage and peer review work done by “consultants” who were often less experienced and qualified than they were. The new Director didn’t know the extent of the contracting and left as well.

The Government’s decision will assist in resolving this problem. Premier Chris Minns announced “this is the biggest state government investment in directly hiring new apprentices in recent memory and will play a critical role in building better communities across New South Wales.

From electricians and landscapers to plumbers and planners, these 1300 new apprentices and trainees will play a key role in building the homes and communities of our state’s future.

This investment will make a big difference in smaller towns and regional communities where fewer pathways for formal training currently exist.”

Minister Local Government Ron Hoenig said “Councils have been crying out for a solution to the looming skills crisis for years, but the previous government did nothing to address the problem.

“This funding will provide a much-needed boost for our councils which are responsible for providing the services and facilities communities use every day.”

The Minister said it would ensure councils were well equipped to build the infrastructure facilities and to support growing communities as part of the Government’s commitment to resolving the housing crisis.

The Minister for Skills, TAFE and Tertiary Education Steve Whan said, “a decade of neglect and cuts to the skills training in local government sector by the former government has resulted in an alarming shortage of skilled workers and no solutions until now to ensure the sustainability of this critical workforce.”

We don’t normally quote politicians like this, but for $250 million, we can make an exception.

And it’s great news for regional NSW.

It’s time to start thinking about what your community needs, and ensuring that your Council gets its act together to provide proper supervision and mentoring for trainees and apprentices on the program.

This news is so bad, that at Liverpool it has to be true

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Published: Friday, 09 August 2024 14:39

Ten CEOs sacked by the same Mayor in eight years, a current investigation into the Council by OLG, a damning report, legal action by the Council to prevent it continuing and a Minister for Local Government determined to conduct a public investigation of the Council and put in an administrator.

The OLG Interim Report being contested by the Council found maladministration, nepotism, poor financial decisions and concerns about destroyed documents as part of the investigation.

Still, it’s surprising the Council is refusing to answer the relatively simple questions we have asked.

Built as a public project in Liverpool’s CBD, the Council’s Liverpool Civic Place is a 10 storey building and library, car park, intended to accommodate a good proportion of the Council staff. Normally, a decision by Council to build its own Administrative Centre, follows public consultation, and, in its fit out, significant input from staff to ensure optimum working conditions for the future.

Not so at Liverpool. Whether it’s the rapid turnover of CEOs, sacked by the Mayor under the senior staff contract, or whether there are secrets that really can’t be revealed, we thought we were asking pretty straightforward questions. There was no consultation with staff who were provided four weeks’ notice of moving into premises that they were only then allowed to inspect. And they were unsuitable. Massive, shared desks, described as either “workbenches” or “dining tables”, intended to seat eight employees, four a side, knees knocking, no room, with an impenetrable barrier of computer screens down the middle, like some dystopian fantasy. No shading or sun protection from the westerly sun, no parking on-site, which for EHOs and building surveyors doing inspections twice a day, 25 minutes or so walking time between the office and the car park. Hopeless.

The current acting CEO has agreed to spend more public monies removing the workbenches, replacing them with individual sit/stand desks, some undertakings about screening, not yet installed and summer is approaching, and still no solution to the car parking.

Described by the Acting Chief People Officer as “extensive consultation with staff from the inception of the project to completion” the only internal communications the Council could provide were those dated from 14 February this year about the impending move, but they included the critical date of 26 March 2024, when employees saw the site for the first time, before moving in on 6 April.... Seven days’ notice, into a poorly thought out and off the shelf design that satisfied no-one.

We tried to explain the concept of consultation to the acting CEO Jason Breton, who responded “Council will not engage in any further dialogue about the past relocation to Scott Street”. When we responded, he asked to be referred to when he had said that...

So we filed a GIPA application, which is being processed. In the meantime we were told the decisions about how the floor would be laid out and designed were made by a previous ELT - meaning person or persons unknown - and that the current Directors were shown the floors when they were already fitted with furniture and computer connections and everything else, and asked to choose their own floor!

That’s more than we had been told, but there is a public interest here and it shouldn’t be confidential. If it was designed and resolved by the Mayor, they should say so, if it was designed by the building company which was doing everything, then someone must’ve signed off on that being the process. Who was it?

And who was responsible for the decision to leave employees in the dark until days before they were forced to move in?

And this MidCoast news, is just hilarious

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Published: Friday, 09 August 2024 14:39

In our February issue, under the heading “He said what?” we reported on a developing fiasco at MidCoast where a Councillor had asked whether three things reported in the Golden Turd issue of depaNews were true.

Councillor Peter Epov asked, “can the GM confirm that depaNews, for the second year in succession, conferred the ‘Golden Turd Award’ to MidCoast” and whether the claims were correct that “MidCoast Council has had 300 resignations in the past 12 months, as stated in the last report to the Consultative committee” and “Almost 500 of council’s USU (United Services Union) members meeting and rejecting the proposal to the salary system proposed by MCC with not one person supporting them?”

The Council has never told us that those things were untrue, we still believe they are true, but the GM had responded that the matter was confidential due to “personnel matters concerning particular individuals (other than Councillors)” even though the question sought whether the allegations were correct, yes or no, and made no reference to any individual personnel matters.

When the Councillor ignored the inappropriate gag, a Code of Conduct complaint was made against him, the Conduct Reviewer found Epov guilty, he crowd-funded an appeal to the Supreme Court, he won, and the Council was a loser, in more ways than one.

Here is an article in the Daily Telegraph on 28 June and an article in the Newcastle Herald on 4 July when the Council lost the Supreme Court case.

If you were a creative, writing a television satire about local government, you could include this without embellishment. MidCoast is the gift that keeps on giving.

This news is confusing, and there may be legal issues, but HR tells us to relax

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Published: Friday, 09 August 2024 10:47

On 1 August, the new CEO at Shoalhaven City Council, Robyn Stevens, met with three Directors and told them she was restructuring and they would be terminated under their standard contracts and paid a redundancy. She provided organisation charts and details and followed this up with a slideshow for 30 or so managers that would see the new structure implemented on 4 November, and included even more organisational structures. No imprecision, a commitment that this would happen, and will happen by 4 November.

This is very unusual timing (potentially unprecedented) for a CEO to initiate a restructure so close to an election. The community will get a chance to vote on 14 September, and the caretaker period, where councils can’t do much prior to an election, starts in a week’s time.

More importantly, section 223 of the Local Government Act makes it abundantly clear that it is the Council’s responsibility to resolve the structure, not the GM/CEO.

There are two potential breaches of the Local Government Act here - section 223 prescribing the Council’s right to determine the structure after consulting with the GM, and providing that establishing the structure is the responsibility of the Council, and section 337 requiring the Council to be consulted on the dismissal of senior staff.

In neither the meeting with the directors who will be sacked, nor with the 30 managers, did the CEO and slides acknowledge the Council’s role in determining the structure, nor in the termination of senior staff.,

A week later, on 8 August she issued an email to all staff under her signature and with the subject “Proposed change of operating structure”, proposing a new structure of four directorates, consolidated functions, and “the disestablishment” of City Development, City Lifestyles and City Futures. Clearly written by someone unfamiliar with HR practices and restructuring, the GM says “I have proposed a new structure for the organisation”. The word “proposal” and the advice that “Consultation has now commenced” made it clear  this was happening, whether people liked it or not.

The Award establishes a “pre-proposal” period and a “proposal” period, with different requirements. Neither term was used to clarify how this workplace change would roll out and this put everyone on the back foot. We emailed the Council saying that we hadn’t been advised as we were required to under the Award, to receive a phone call from HR, valiantly putting to us that although not specified in the communication, it was intended to be a “pre-proposal”. With a proposal to follow…

Given that the proposal is the GM’s own, and that there are documents with organisation charts identifying what will be merged and things that might disappear, that seems odd. And it seems even more odd that in the slide showing the process, 14 October is a step identified as “Seek approval from CEO”.

And what all that means, is the CEO has designed her operational structure and is proposing it, there will be consultation and then the CEO will approve it! This only falls short of the abject stupidity at Hawkesbury last year, when a Director made a complaint against the behaviour of a member, investigated the complaint herself, and then found that it was not sustained!

We’ve been told by HR that even though it wasn’t said, it was intended to be a “pre-proposal” period, so we can all relax. It’s hard to relax when we know that there are documents already prepared, so we won’t.

The confusing email should be reissued, no one understands it, and it’s creating the sort of concern it suggests should be the subject of professional counselling, “if needed”!

The timing with the election, the apparent belief that this will be implemented by 4 November, will require a new Council - half the councillors are not seeking re-election which has significant implications for a change – to make a fundamental decision about the new structure, when they won’t have any idea about the current structure. The CEO must think she has a better hope with this Council, than the next one.

Yesterday a Notice of Motion was lodged for the next council meeting, “That the CEO be requested to withdraw any proposed changes and potential redundancies and hold the planned restructure of Directorates until after the New Council has been installed and consulted.”

Hear, hear!

Sophie to the rescue!

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Published: Friday, 14 June 2024 12:15

There will no longer be “senior staff” under the Local Government Act and existing senior staff members will be able to request transition to the State Award, or Enterprise Agreement if their Council has one. When a request is made to transition to the Award or EA “Councils must not unreasonably refuse such a request.” If they do, the employee has access to Industrial Relations Commission to contest the Council’s decision.

No more section 340 of the Local Government Act preventing senior staff from contesting industrial matters or dismissal. What an astonishing transformation, long-awaited, significantly belated and all thanks to Sophie Cotsis, Minister for Industrial Relations and Minister for Work Health and Safety after she took charge of something that had languished in the Minister for Local Government’s office for more than a year.

Then it all happened, a draft Bill was prepared by the Department of Industrial Relations and the Minister's office, consultation with the three unions and LGNSW, and on Wednesday 8 May, the Minister presented the Local Government Amendment (Employment Arrangements) Bill 2024 to the legislative assembly and made her second reading speech.

No wonder that the pic above shows a triumphant Minister and three equally triumphant local government union secretaries.

The second reading resumed on 15 May where the Opposition supported the proposal and it was passed through the Legislative Assembly, without dissent, then introduced into the Legislative Council on 15 May and passed, again without opposition or dissent. Everyone made speeches about the lessons of corruptibility and unfairness revealed by Operation Dasha into the former Canterbury in 2021 and endorsed the concept of fairness for senior staff as if this was the first time anyone had the opportunity to think about it.

It wasn’t of course - a number of them are former councillors who provided examples and assertions of unfairness that they’d witnessed but done nothing about at the time, nor after becoming a member of Parliament.

The NSW Governor assented to the bill on 31 May (another anachronism from our colonial past) and it is now law.

And everyone will have to comply, including the troglodyte opponents who have lost the right to sack good people without good reasons.

Thanks Sophie!

It’s hard to keep the Federal Court a secret

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Published: Friday, 14 June 2024 10:44

On 5 June in a prosecution of Active Super by ASIC, the Federal Court found the fund had been guilty of “greenwashing” and had misled and deceived members and others about what they did own, and not own, and how that reflected their responsible investment commitment.

The Financial Review headed their article “Ethical” fund’s excuse for gambling, coal stakes unbelievable: judge, and the Herald went with $14b super fund misled investors by greenwashing, court finds. Both followed up with further articles about New South Wales parliamentarians sitting on the Board as representatives of LGNSW and being paid significant fees, and the Herald editorialised against the practice. This is now national news of significant interest. Let’s hope bad luck doesn’t go in threes.

depa will remain a Shareholder of LGS Pty Ltd (aka Active Super) until it merges with a Victorian fund next year. I was a foundation director until 2013, and our last director, Sam Byrne, resigned from the board in a reduction of union representatives in July 2019. We had no influence on the operation of the Fund as a shareholder and with the Director, and there is a limit to how many isolating 7-1 votes anyone should have to put up with.

The time we did have a Director, the fund had systems in place to ensure that if they said they didn’t own a certain kind of investment, then they didn’t. Somehow, those protections have failed.

As a Shareholder we have limited rights and our pleas, after ASIC announced the prosecutions, that the fund should put something on their website acknowledging what was happening were rejected, allegedly “on legal advice”. There is no advice on their website about the successful prosecutions, the judgement has been made and when the case resumes it will be down to how much of ASIC’s costs are to be paid by Active Super, and the extent of the penalty.

This is a big deal for us. Most importantly, we had no influence on the fund, no input, nor anyone implicit in decisions that created this in 2021. We are all in the clear.

I’m reluctant to say anything else, but members have asked, and this is public knowledge. I reckon I know why this has happened, maybe in July.

And we’ve discovered local government’s longest and best kept secret

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Published: Friday, 14 June 2024 10:43

In February we put a timer on Robbo’s Pearls on our homepage to record how long the Labor Government had been in power in NSW and done nothing about senior staff. At that stage Premier Chris Minns and Local Government Minister Ron Hoenig had been in office for around 315 days and for almost all that time the senior staff changes, supported by LGNSW and the local government unions since a resolution of the LGNSW board on 15 October 2021, had languished in the office of the Minister for Local Government. We asked the question "what have you blokes been doing?", when it had been SFA.

The lack of action by the Minister for Local Government seems all the more inexplicable when you consider his speech in the second reading of the legislation on 15 May:

“I have been personally advocating against that law since about 1993. It might have taken me over 30 years but I am really proud to support the bill today.”

Well, who’d have thought! All those years we were banging our heads against the wall, looking for political support, all those things we’ve regretted over that time, but apparently lurking in the shadows was the Hon Ron, it’s just that none of us knew. Ron, why didn’t you call?

The Minister for Local government also said this:

“it will provide all Council employees, other than the general manager - and I send a warning that that position is next - with the security of being covered by the award or another industrial instrument.” Woohoo!

The Hon Ron has warned everyone, depa would support that, so would the other unions, but does the Minister’s warning give sufficient of a nudge to LGNSW that they may also support it? Or at the very least supporting 52 weeks as a termination payment to dissuade councils from unfairly sacking GM’s ? Or providing them with access to the IRC?

Go the Hon Ron, just don’t keep it a secret for 30 years.

Je ne regrette rien

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Published: Friday, 14 June 2024 10:41

Lucky Edith Piaf, not regretting anything. Who wouldn’t like to live their life like that. Here are some of our regrets over the last 33 years:

the first historic consensus opposing the introduction of term contracts for senior staff was in 1991, and included the employers’ organisations as well as the predecessor of Local Government Professionals (sic), the Institute of Municipal Management. We regret the employer’s organisation abandoning that position, and the history of antagonism to getting rid of the concept of senior staff by LG Professionals (sic).

We regret that LGNSW, up until they responded to the recommendations in Operation Dasha, participating in the unfair dismissal of more senior staff and particularly general managers than anyone else, and probably collectively, more than everyone else.

The role of the Cabinet Office in 1998 rolling the recommendation made by the Local Government Minister at the time Ernie Page, in the five year review of the Local Government Act, that term contracts should be removed because of anticipated flowback into the State SES - which was nonsense. And the decision of the Cabinet that fell for it.

The role of the Office of Local Government, and their SES staff who had been provided with permanent tenure by the Government Sector Employment Act 2013 (something that in the local government we knew nothing about) not flowing a similar provision for senior staff in local government when the SES had been a model for that arrangement in 1993.

OLG’s historic defence of their standard contract and assertion in a variety of investigations, including Operation Dasha, supporting “the “termination without reasons clause... in the event that there was a breakdown in the relationship between the Councillors and the general manager”

And in taunting local government that if they ever delivered a consensus view between the employers and the unions, they would deliver that through the Minister, and then failing to do so.

ICAC in 2002 after investigating Rockdale Council and making findings about corrupt councillor behaviour made observations about “the importance of protections for local government employees involved in the development process”, and then did nothing about it.

ICAC in July 2003, considering correspondence from depa identifying “corruptibility issues that arise from term contracts” after both Rockdale and Tweed, and doing nothing about it, and in a meeting with us in July that year having some pious wanker reject our concerns which he asserted “to some extent that’s the obligation of public service”.

The ICAC 2016 report in Operation Farra at Mid-Western Council observed “the ‘no reason’ provisions in the standard contract, however, could create an uncertain employment environment for a general manager. The Commission’s concern is that such uncertainty could be used to improperly influence the action of a general manager” and, then did nothing about it.

And in Operation Dasha ignoring the submission depa had made about problems with planning and the employment relationships of senior staff, with recommendations for change, that included repealing section 340. We should have been called to give evidence.

We were not able to reach agreement between the unions and LGNSW on transitional arrangements for senior staff similar to the employment protections in section 354D of the Local Government Act continuing senior staff on “the same terms and conditions that applied to the staff member immediately before the transfer day.” This had been the unions’ collective position for a number of months until abandoned in a meeting depa could not attend on 19 March, when an agreement was made by everyone else for what is in the current arrangements.

And obviously I regret spending an hour and a half at the dentist that day and being unable to argue against that happening, and forgetting the first rule of politics - “be there”.

How it could happen that this legislation was carried without dissent, with the support of the Liberal/Coalition Opposition and all Independents, who for most of those years opposed doing anything about this, but who nevertheless subsequently found an interest in doing something about unfair employment practices for senior staff and thought they should trumpet as if it were a revelation, and their idea.

Nevertheless, we record our appreciation and acknowledgement of three people and their critical role in moving LGNSW towards this position in 2021 - President Linda Scott, CEO Scott Phillips and Director Workforce and Legal, Adam Dansie, notwithstanding his awful advice given to Campbelltown to unfairly legitimise disadvantage against a group of employees, predominantly our members.

The LGEA has participated in support over this time, and the USU which, while they were late to the party, they brought a connection to Government, without which this would not have happened. And the new CEO of OLG, doing his best to get over the abject failures and connivance of the past.

What happens next?

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Published: Friday, 14 June 2024 10:21

Here is a Circular dated 12 June from the Office of Local Government, created over a number of weeks with the unions and LGNSW to end “Senior Staff” employment forever. This delivers on the consensus position in the industry established on 15 October 2021 after the LGNSW board unanimously resolved to support the removal of senior staff (apart from the GM) from the Local Government Act.

There is now a transitional period of three months until 1 September to allow current senior staff to transition to the State Award or relevant EA. During this time contracts which expire can be renewed if the employee prefers. There will be no new contracts after 1 September and at all times there will be access to the IRC if councils are difficult.

The OLG circular contains significant detail but the most important principle underlying transition to the Award or EA is the first dot point under the heading Key points:

“When transitioning from employment under a senior staff contract to employment under an award or Enterprise agreement, employers and employees must act reasonably. Employees should not suffer a net loss as a result of the transition.”

Love it, employees should not suffer a net loss.

For depa, this brings to a close 33 years contesting these contracts since they were raised in discussions in 1991 in the Exposure Draft Local Government Bill. The 29 March 2021 issue of depaNews, under the heading “ICAC dogs it on Dasha” will be all the history you need.