The BPB is not just using “intelligence”, it has “intelligence cells”

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Published: Wednesday, 27 June 2018 14:50

There are spies and informants everywhere. In the May issue of depaNews we reported on the BPB’s acknowledgement that they can use multiple informants and intelligence in a way that challenged the original expectation of local government and the BPB about how complaints would be investigated.

It was always understood, because the BPB told us this is how it would work, that someone would make a complaint to a Council about a Council accredited employee and if the complaint was also made at the same time or subsequently to the BPB, then the BPB would acknowledge the investigation conducted initially by the Council and provide significant weight to the Council’s consideration in any action from it.

So, when we found ourselves with a member where an investigation had been triggered without any complaint and where the BPB was resistant to disclosing how the work of the Council certifier came to be the subject of an investigation, we had to find out what was going on.

We met with the Director of the Building Professionals Board Lynelle Collins and the Manager Investigations Sean Fagan. At least Sean has a history in local government (Parramatta and Blacktown to name two) and while he has been out of the industry for some time, he does know what certifiers go through on-site.  Ms Collins, initially reluctant to disclose anything was not quite so forthcoming.

To say that the reception Vice President Jamie Loader and I received was cool and unwelcoming makes it sound a much more warm and welcoming meeting than it really was. Talk about trying to get blood from a stone.  Gone are the days of the warm embrace of former CEO Neil Cocks and Chair Sue Holliday.

No concessions were made about why the investigation happened although we think our guess was right - that the Department of Fair Trading was already on site with a contractual argument between the owner and the builder, and why not look at other parts of the job while they were there.

Ms Collins said that there were many “intelligence cells” now that the BPB was part of the Department of Fair Trading. Pressed on exactly how many intelligence cells there were she said she was unable to answer that because the Department has multiple roles and in any event, there are plenty of other agencies involved on a site who may initiate investigations, such as the Police, the Fire Brigade or whatever.

In a way, while we joke about spies and spying, the reality is that the Department of Fair Trading (shortly to be part of Services NSW) presents the opportunity for a building site to be the subject of consideration in a way it never was when the BPB was a stand-alone board. While Ms Collins found it “alarming” that we wanted some specified number, we found it equally alarming that she couldn’t, or wouldn’t, provide one.  She said if we wanted to know we should have a look on their website.  You should have a look on their website too.

The upshot of it all is that we are spoiled for imagery now, because the BPB/Department of Fair Trading/ServicesNSW is now more like this:

The upshot of the investigation of the particular Council was that there were no findings made against the employee, so we can remain confident that accredited certifiers employed by councils are doing the job properly and, people who do the job properly have nothing to fear from regulators, many-headed or otherwise.

We think that Ms Collins must have received some unfortunate intelligence about us and our history on the issue of accreditation because while we were nothing but charming, that wasn’t quite how we were received. Maybe things will be better next time.

Next time you have a disagreement about professional opinion …

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Published: Wednesday, 27 June 2018 14:50

Hands up those amongst you who have not, at some stage, had a disagreement with a supervisor, or manager, or director or even GM, about your professional opinion. You know, where your professional opinion as an EHO, or building certifier or planner is rejected by the person you report to who presses you to recommend the opposite.

Too many examples come to mind in our office, including even a GM trying to direct a BPB accredited employee on the content of their decisions!

Section 352 (1) of the Local Government Act 1993 provides “a member of staff of the Council is not subject to direction by the Council as to the content of any advice or recommendation made by the member”.  A Council can direct a member of staff to provide advice or a recommendation but they are prohibited from directing its content.  That’s in 352(2).

This is an issue that comes up in a Council far too often. It’s awkward for an employee to deal with it, we recommend at the very least they keep proper records so that the paper trail shows that they did certain things but ideally, if the boss doesn’t like your professional advice, then the boss should take over providing the advice on the recommendation and sign it off themselves.

But wouldn’t it be nice if section 352 acknowledged that “the Council” also included those acting on behalf of the Council who regularly think it appropriate to direct an employee below them on the content of their advice or recommendation. We’ve been trying to talk the Office of Local Government into this. We have a long corporate memory and know that the Local Government Exposure Draft Bill did include that protection generally but it didn’t make it into the 1993 Act.

The Office of Local Government has agreed with our practical view and we now have their advice:

OLG would agree that where there is a difference of opinion between a professional planner and their manager on the content of a report or recommendation, the appropriate way to resolve this in practice would be for the manager to sign off on the report.

This is a real get out of jail free card for planners who can regularly be stood over to approve something that should be rejected, or reject something that should be approved and can apply equally to differences of professional opinion in public or environmental health or building control.

Don’t underestimate the value of this letter. Print it out and put it on your wall right in front of you and never forget that the OLG agrees that if the boss wants you to do something other than what you think is the right thing, the boss can make that recommendation themselves and sign it off.

This is not just a benefit of depa membership, it’s a protection for all professionals. Those who are not members can consider it a gift.

You’ve moved house or Council? Don’t let it be a secret

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Published: Monday, 28 May 2018 15:46

It is our business because when the State Electoral Commission posted notices for our 2018 election to financial members, we were surprised how many of you hadn’t kept us up to date with your residential address.  It’s clearly never front of mind when you move (because moving is one of the great stressors in life) and as time goes on, we get fewer and fewer letters, but sometimes we do need to write to you, or the SEC does, and if we don’t have your address, you miss out.

Here is a link to how you can update your information on our website.  Go on, it’s so easy - as a surprisingly high number of members who actually stood for election, but hadn’t told us of changes to their addresses, have now discovered...

Every now and again we remind members about letting us know when you’ve moved from one Council to another and we also remind our delegates to help us out here as well.  It does make life easier for us if we know who our members are at each Council and this month we received email advice from a member who moved from The Hills to Liverpool, followed up by that advice from the delegate as well!  This was almost unprecedented.  Thanks Juliana and Daniel.

Come on, it’s not that hard.

We make a submission to ICAC Operation Dasha

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Published: Monday, 28 May 2018 15:46

For decades depa has seen the flaws created when senior staff are appointed on term contracts.  There was always going to be a risk to senior staff giving advice without fear or favour if they are being heavied by councillors or a GM who wants them to do something else when their contract was up for renewal.

There is no protection at all and that’s the whole point of there being term contracts required by section 338 of the Local Government Act being accompanied by section 340 prohibiting any access to entitlements under any industrial instrument, or more importantly, any protection available from the Industrial Relations Commission on dismissal.

It may not have been the plan, but it has delivered up vulnerable senior employees and potentially compromised their advice.
 
38 weeks’ pay and no obligation to provide a reason for the termination has been embraced by many councils - very happy to get rid of good people and do this apparently unconcerned that it costs their ratepayers and the community 38 weeks’ pay, and often a pretty good rate of pay as well, to sack people who don’t deserve to be sacked.  And GM’s do it too, equally as unrestrained by the unnecessary cost.

We’ve seen the misuse of term contracts since their introduction.  We have always tried to do something about it and Operation Dasha, with allegations by the GM of the former Canterbury that councillors were bullying, or blackmailing him, as he put it, to make a particular appointment to job of Director of Planning, is an opportunity too good to miss.  Maybe the ICAC will see the wisdom of removing the fixed terms and recognising these positions as both requiring and deserving permanent employment.  They must otherwise be struggling to understand how this can all happen.

The Office of Local Government has their own barrister, harrying the current GM of Canterbury-Bankstown about the value of the “termination without reasons clause ... in the event that there was a breakdown in the relationship between the councillors and the general manager”.  Full credit to Matthew Stewart for not succumbing to the pressure and we all know that “breakdown in the relationship” means only that the Council doesn’t like the GM, because the GM, for good reasons, won’t do what they want.

It’s also odd that while the State public sector has transitioned almost all of their Senior Executive Service employees to ongoing employment, including those SES employees working at OLG (OMG!) that the OLG continues to defend this anachronistic and dangerous employment arrangement.  There will never be confidence in local government, if employees can be directed on the content of their advice and are afraid to provide advice without fear or favour.

So this is the first problem and the second problem is the overwhelming evidence over the past decade or so in particular, that it was never a good idea for the elected councillors to have anything at all to do with the assessment of a DA – a view now recently shared by the NSW Government, which required Sydney Metropolitan councils to do what Wollongong has been doing, of having DAs dealt with by a Local Planning Panel.  We called for the removal of councillors from DAs in depaNews in July 2017 and the Government responded almost immediately and did so.  It must be the power of the pen.

What we know already about the way business was done at the former Canterbury brings together these two areas of government policy as if they were to storm cells we have been watching on a weather map, gradually getting closer and closer together, then joining with catastrophic results.

The ICAC’s consideration allows us the opportunity to respond to both these areas and we have done so, lodging a submission with the ICAC on 23 May and making some sensible and easily implementable recommendations on both employment protection and planning.  Check it out.

Public hearings for Operation Dasha resume on 13 June.  Let’s see what happens.

Look out the BPB is coming after you

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Published: Monday, 28 May 2018 15:46

And this time they’re using “intelligence”.  Is there any word more likely to strike fear into your heart?  Is it the Russians? The Chinese, or just a euphemism for gossip?

The BPB must have run out of complaints about private certifiers and discovered that there was little to investigate in local government, so has decided to take a broader approach to the investigation of Council employees who are accredited certifiers.

When the Government decided it made sense to accredit local government employees, the industry (and not just us) was concerned about how the BPB would handle the accreditation of Council employees and, in particular, how they would manage the dual accountability of an accredited certifier to their employer with a parallel line of accountability to the Board.
 
Would this set up the possibility of parallel, or sequential investigations, if a complaint is made simultaneously to the Council and the BPB, or to the Council first and then to the BPB, or whatever.  And what about penalties?  What if the Council deals with that first in a way that the BPB thinks is insufficient, or the Council nails the employee but the BPB doesn’t think it’s such a big deal?
 
We were assured at the time by BPB President Sue Holliday and the Board that the BPB would rely upon any investigation conducted by the Council.  They would review the adequacy of the investigation, its thoroughness, any penalty that might have been imposed, and then make their own judgement about whether anything else needed to be done.  It was an acknowledgement of the primacy of the employment relationship.

But leaving Griffith aside, complaints against accredited certifiers and councils have been few and far between.

(Griffith was a fiasco, a Council with a very long history of understaffing and under resourcing, failures to provide market rates to attract staff and even now, after their humiliation at the hands of the BPB (depaNews October 2017) the Council has now appointed a Director Sustainable Development who is neither a planner, nor a health and building surveyor.  He is a Certified Practicing Accountant who was previously the Council's Manager Economic Development and Tourism. What could possibly go wrong?)

But now we discover that the BPB in February commenced an investigation into a council employee who is accredited with the Board.  There had been no complaint to the Council, the findings themselves focus on minor administrative matters (as if something needed to be found) but more worrying was how the BPB came to be investigating in the first place.

When our member received a letter from the BPB early this month advising that findings had been made and that he, and the Council, had an opportunity to respond, it was signed off by the Manager Complaints Investigation - a job title with no uncertainty, it’s complaints investigation and that’s it.

The accredited certifier and the Council had no idea how this unexceptional domestic construction site had come to the Board’s attention.  There had been no complaint made to the Council and while lots of advice flowed back from the BPB about those sections of the Act that allow them to conduct investigations, there was no answer to the question.  What was there to hide?

And similarly for us, when we started to chase the BPB, understanding that if this can happen to one of our members, it could happen to all of them, they tried to fob us off as well.

When we claimed it was logical that if the Manager Complaints Investigation was managing the investigation then there had to be have been a complaint, we then received a response from the same person but miraculously, they were signed off as Manager Investigations.  Hard not to smell a rat.

But worse was to come, with email advice from the Manager Investigations to the accredited certifier that the Board was relying upon “intelligence or concerns that had come to the Board’s attention.”  That’s a real WTF moment if ever there was one. Not I.N.T.E.L.L.I.G.E.N.C.E, mind you, because who doesn’t love a supercomputer invented by Matt and Trey, but because that word could mean anything.  “Intelligence” from someone who sits next to you at work but doesn’t like you, a grumpy neighbour who thinks you play music too loud, or resents your success in the local garden competition, a councillor who thinks you’re too vigilant, an ex in a messy relationship separation, who knows?
 
But we’re going to find out.  If the BPB was going to do this they should have individually advised every accredited certifier in local government and the organisations that represent them.  That’s probably only depa at this stage (although we assume AAC and AIBS are scratching their heads) but no-one received any advice or tipoff that it didn’t just require a complaint, that the Council didn’t need to be involved, but the BPB, however they got their information, can decide to investigate you. That’s disappointing.

Here is a link to our letter of 23 May to the Director of the BPB complaining about the circumstances and attaching a couple of email trail is where we have protected the identity of the accredited certifier.  We will be meeting with the Director and the Manager Complaints investigation/Investigations on 13 June, and we’ll let you know how random and dangerous this process can be after that.

Government sends IRC to Parramatta

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Published: Monday, 23 April 2018 13:33

It’s official, the NSW IRC will be moving to 10 Smith Street Parramatta later this year or early next year.  The lease is signed. 

The writing was on the wall for the future of the IRC when the Government split the Industrial Court from the Industrial Relations Commission structure and sent it to the Supreme Court in December 2016.  It was just a matter of time.

Early this year the news leaked out that the Government was planning to evict the IRC from their magnificent Bridge Street sandstone building.  The PSA, the union covering employees of the state government filed a dispute and all unions which participate in the New South Wales system intervened, including us.  It was, as is the tendency of this Government, cloaked in secrecy, not discussed with those affected, whether they be the employees of the IRC including the Commissioners, nor the various parties who appear in the Commission every day.
 
UnionsNSW coordinated the unions’ opposition and the move was universally opposed by employer organisations (including LGNSW), the Law Society on behalf of solicitors and the Bar Association on behalf of barristers.  Initially it was impossible to find who had actually made the decision, so was hard to know what Minister to see.  Regardless, at no stage was a credible argument put to justify the move.

The best the Government had was that this was part of their strategy of moving public servants out of the CBD.  Nonsense really, considering that there are 10 employees of the Industrial Relations Commission and five Commissioners - two of whom, Commissioner Newall and Commissioner Seymour, have voted with their feet and resigned rather than go to Parramatta. 

Last week the Treasurer/IR Minister Dominic Perrottet argued the relocation “will be a huge boost for the area that will help grow the local economy, create new jobs and reduce congestion in the Sydney CBD”.  BS, really.

Premier Gladys admires IR Minister talking through his hat
 
The Government didn’t consult with the members of the Commission and following the resignation of the two Commissioners, Treasury set a recruitment process in train without any discussion with the remaining members of the Commission.  What would Treasury know?

It’s really that the Government can flog off a nice long lucrative lease of this magnificent building to greedy rapacious developers.  A disgrace.

And a disgrace made worse by the clear implication that this is all happening because the Premier hates the IRC.  While she hates it, she still likes to control it because she could cede the state’s industrial relations powers to Fair Work, but she wants to keep a hamstrung IRC, operating under the restrictions of a Public Sector Pay Policy set by the Government, so she can enforce the dreaded 2.5% limit. 

We may find ourselves in an unusual position

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Published: Monday, 23 April 2018 13:33

In the July 2017 issue we called for responses on what could be done to keep councillors out of development assessment.  We’ve gone on and on and on for decades about protecting senior staff (check out “Who’d want to be a GM in local government?” written in January 2013) but something needs to be done now.  What should that be?

Send your suggestions to This email address is being protected from spambots. You need JavaScript enabled to view it., but do it quickly.

Former Canterbury demonstrates to ICAC why councillors should be removed from development assessment

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Published: Monday, 23 April 2018 13:55

Here we go again.  As if anyone needed it, the ICAC this time last week started to eviscerate the corpse of the former Canterbury Council and show why councillors should have nothing to do with development assessment.  Public hearings are examining planning decisions between 2013 and 2016, the activities of former Liberal Canterbury councillor Michael Hawatt and former ALP councillor Pierre Azzi, former GM Jim Montague, and the appointment of Spiro Stavis as Director of Planning.

It all hit the fan after the resignation of the highly regarded Marcello Occhiuzzi in late 2015, having had enough of aggressive pressure from the Hawatt/Azzi alliance and the GM wanting planning decisions that didn’t comply with the planning instruments.  The GM bowed to pressure from councillors and allowed the main players on the interview panel.  Montague’s evidence has been that the councillors tried to blackmail him, sack him at a Council meeting over Xmas/New Year, and bribe him with inducements of handsome retirement benefits and/or a continuing consulting role after the 2016 mergers, on his existing salary.
 
Former Mayor Bryan Robson gave evidence to the Commission of a meeting of ALP players where the former Premier Morris Iemma described Azzi as a “f---wit” , after Azzi had told him he had emailed the GM telling him he would be sacked if he didn’t keep Stavis in the job, and offered financial inducements.  Iemma had asked, “how stupid is he?”  Quite stupid, clearly.

The evidence reveals an obsession with development at all costs, rejecting of the recommendations of planning staff and producing the horror which is now Canterbury Road.

The Commission is also investigating decisions of Stavis as Planning Director.

It’s people like this lot that make it uncomfortable for decent human beings working for the public good in planning, building and environmental protection. 

It’s like living in a television satire of greedy and corrupt councillors, a manipulated GM, an inappropriate and biased recruitment process, all set amongst dreadful developments with additional floors, increases in floor space ratio, a questionable sale of land...

There are two big issues here for us. 

The first, is the legislative framework which allows senior staff to be employed on term contracts which can be terminated with no avenue of redress or review.  GMs, as we saw demonstrated graphically following the 2013 local government elections, can be sacked by a newly elected council without explanation, without recourse or review.  The GM is the most vulnerable of Council employees.
 
There are no employment protections for the GM and senior staff - being expressly excluded by section 340 of the Industrial Relations Act from access to the IRC.  The 1993 Local Government Act was based upon how things operated in the State but in recent years most SES positions have been transitioned from term appointments to permanent, and for those which aren’t, any decision by an Authority to sack “for any other reason” requires a written report from that Authority justifying the decision to the Public Service Commission.  This is a test Mid-Western would have failed in 2015 and the former Canterbury would have failed here.

The second is allowing elected councillors - unqualified, often incapable of being impartial and with a demonstrated propensity to look after mates - to be involved in any way with a development application.  We dealt with this in depaNews in July 2017 under the heading “Enough is enough - it’s time to cut councillors out of development assessment”.
 
By coincidence,  on the following day the NSW Government announced the removal of major developments from councils and place them in the hands of planning panels, claimed to be independent but invariably containing elected representatives who, as we have seen, do struggle to understand the big picture.

Something has to be done.

Electoral Commission declares 2018 depa elections

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Published: Tuesday, 27 March 2018 15:27

Aren’t we lucky we don’t live in Gotham City.  While many of us have probably seen equally evil candidates having a run for federal, state or particularly, local government spots, we never quite get down to the kind of threats the Joker made standing as Governor*.  Still, vote for me or I’ll kill you is a nice change from jobs and growth.

But we’re all civilised people and when depa has an election, just conducted by the State Electoral Commission, things are much more polite and far less threatening.

At midday today nominations closed and the Electoral Commission has just declared elected all candidates who nominated for the ten vacancies.  Here is the Electoral Commission's Declaration of Poll. Eight of the current officers of the union (as they are described in the Industrial Relations Act) stood for election, so there were two vacancies to fill.

Elections are held every two years for the position of President, the two positions of Vice President and six members of the Committee of Management and every four years for the position of Secretary.  This year was the four yearly cycle so I’m pretty excited to be elected for four more years of pursuing the tyrants, the bullies and those who don’t do the right thing by our members.  Thank you all.

President Jo Doheny was elected unopposed.  Jo had been appointed by the Committee of Management to fill the casual vacancy created by Andrew Spooner’s resignation back in October and now is elected in her own right.  In her nomination, Jo wants to increase our membership and maintain good management practices and said “the union has demonstrated a history of sound advocacy for the members that I will seek to continue in a professional manner and a further the objectives of the union.”  Jo is Senior Strategic Contributions Planner at Central Coast Council and long-standing delegate and member of the Consultative Committee.

The current Vice Presidents, Joanne Dunkerley and Jamie loader nominated and were re-elected.  Joanne wants to “ensure the continued growth and success of the Association” and Jamie is “extremely proud of the role that depa plays within the industrial framework of Local Government and our reputation, whilst hard-earned, speaks for itself.  If we are involved, there is a fight to be fought”.  Joanne is an Urban Planner at Newcastle City and Jamie is Unit Manager Environment and Certification at Central Coast.

Four current members of the Committee of Management were re-elected to those positions:

Steven Cook continues his strong connection to regional New South Wales and wants to “continue to help contribute to the strategic operation of the union and achieving positive outcomes for the benefit of the whole membership.  Having lived with cancer for the past five years, I also believe that I bring a unique insight to the Committee, as an individual balancing a serious medical condition with full-time work.”  Steven is Senior Town Planner at Wagga Wagga Wagga City, our delegate and Chair of the Consultative Committee.

Vince Galletto has a “deep conviction in preserving the rights and benefits of all local government employees and fines great purpose in the role of committee member of depa as a keeps me up to date with all the current industrial issues and challenges that face local government and further provides with the ability to participate and represent my fellow members and all award negotiations.”  Vince is the Acting Manager Assessment at City of Ryde and the Chair of the Consultative Committee.

Renah Givney has been involved in a huge restructure and the negotiation of an enterprise agreement and wants to continue “to see firsthand the important role that depa plays in supporting members in the workplace and providing constructive and effective input into the local government industry.” Renah is a Senior Development Assessment Officer at Coffs Harbour City and our delegate.

Brendan Hayes, like Vince with more than 30 years as a depa member, wants “to be part of a leadership group that strives for workplaces that are fair, appropriate and reasonable and reflect this in its policy development and approach and dealings with all industrial matters.”  Brendan is Director - Environmental Services at Weddin Shire and a long-serving delegate and member of consultative committees. He is also the President of EDAP.

The two vacant positions as members of the Committee have been filled by (in alphabetical order) Andrew Magee and Shona Porter.

Andrew MacGee

Andrew MacGee says depa “is the voice of environmental health, building and town planning staff in councils throughout New South Wales and performs an invaluable service for those staff as it keeps management honest and operating in accordance with the Award”.  He is “keen to assist in ensuring that the Association remains a vital and relevant force into the future for the benefit of all members - current and upcoming”.  Andrew is Coordinator Planning Engagement at Campbelltown City, has been our delegate for more than a decade and is Chair of the Consultative Committee.

Shona Porter

Shona says “depa provides value for members in providing professional and capable advice and would like to be elected on the committee to increase my knowledge of employment related issues so that I can better represent my fellow colleagues/depa members.”  Shona is a Senior Planner at Canterbury-Bankstown Council (previously at the former Canterbury, when she first became our delegate) and is another member who has had vigorous experience of the merger process.

You can see the full policy statements of all the candidates here.

The new Committee takes office from 1 May 2018 and will be a great combination of experience and enthusiasm to guide and manage depa for the next two years.
                     _______________________________

*The unconventional slogan embraced by the Joker was featured in DC comics “Some Enchanted Evening” in July 2005.  And, as you always when all you really want is an interesting picture, you end up with some bizarre trivia. It was this issue where it was revealed that Batman’s costume is not only fully insulated, “the costume is likewise equipped with a durable codpiece for protection against embarrassing low-blows”. Keep that in mind for the next pub or school trivia night.

Clearly, this issue of depaNews has something for everyone.

2018 depa elections – lucky Lord Buckethead isn’t a member

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Published: Monday, 26 February 2018 13:12

The NSW Electoral Office has established a timetable for our elections this year.  They will post notices to all financial members on Monday 12 March and nominations will close at 12 noon on Tuesday 27 March.

The Electoral Office will conduct elections for two-year terms for one President, two Vice Presidents, six members of the Committee of Management, and a four-year term for the Secretary.
 
Our elections are normally fairly orderly processes, because we do invite members to let us know if they’re interested and it’s always members that have acted as a delegate or a member of a consultative committee for years who think they might do something more, so it is rare for there to be surprises.  We could do without our own Lord Buckethead.

How to not lose your leaseback car

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Published: Monday, 26 February 2018 13:12

This is a good time to remind everyone with leaseback cars that if you sign a leaseback agreement, it means you have to comply with your part of the bargain.  It’s a contractual arrangement, you have to allow the fees to be collected, you might have to wash the car, you will need to look after it as if it’s your own, you will have to avoid motorsport, and you will also have to report any damage to the people running the fleet.  Usually a leaseback agreement requires all damage to be reported and some require “all damage, no matter how minor”.

Make sure you do.  If you don’t, it’s breaching a condition of the lease and you can be absolutely certain that there will be another provision in the lease in which breaches of the provisions may see the end of your car.  One day, someone will get you.

If you turn up to report some damage, and the people running the fleet tell you not to bother, make sure you get that advice from them in writing.  Just for later.
 
If the car has been repaired and you go to pick it up and don’t think it’s been repaired properly, don’t accept it or make sure you properly document with those who accepted it back from the panel beater those things that have not been done properly, so you don’t get blamed later.

If you have a leaseback agreement, read it so you understand it.

We spend a lot of our time arguing about fleet management and leaseback arrangements with councils but leaseback arrangements continue dependent upon those people with the Council cars not abusing the arrangement.  Just saying...

Government decides to move the IRC out of the Sydney CBD

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Published: Monday, 26 February 2018 13:12

In 2016 and 2017 depaNews covered the moves by the NSW Government to dismantle the Industrial Relations Commission.  They separated its two constituent parts - the Industrial Court, which was moved into the Supreme Court, and the Commission itself and its primary responsibility to conciliate and settle disputes by agreement, to remain as a separate entity.  A separate entity with a Chief Commissioner and four Commissioners supported by 14 staff working for the Commissioners and in the NSW Industrial Registry.
 
But the Government doesn’t understand what the Commission does, and initial plans to move the five Commissioners and their staff to Goulburn Street to fit into the NCAT building (because that was a tribunal made from of a variety of parts and roles they thought the Commission could be hammered into) were so flawed that they didn’t proceed.
 
The courtrooms were too small and the parties appearing wouldn’t fit, there were no separate conference or negotiating rooms for those occasions when the Commission was conciliating with one side while the others remain somewhere else, and it was given up as folly.
 
But now the Government is up to no good again - proposing to move the IRC from the Sydney CBD to Parramatta without consultation with any of those people who use the services of the Commission.  No-one spoke to the employers’ organisations, no-one spoke to LGNSW representing 120 or so councils in NSW, no-one spoke to the individual unions which appear in the Commission, no-one spoke to UnionsNSW, no-one spoke to the Bar Association representing the barristers who appear, no-one spoke to the Law Society representing the solicitors and no-one spoke to the employees who would be affected, the members of the Commission, or the head of the jurisdiction.
 
This is NSW Government consultation at its proudest.
 
The complication has been that it’s hard to identify who would have consulted.  Described as a decision of “Government”, no-one is prepared to say who made the decision.  No-one knows whether it was made by all members of the Government, the Cabinet, an individual minister or even a couple of them, staggering home late one night from the Parliamentary bar and wondering why they shouldn’t send 14 people out from the CBD to Parramatta as part of the Government’s commitment to moving people to the west.  A small step of course, but an important one made in those circumstances.

Bit, by bit, the information has been revealed with draft floorplans as well.  The plan is to move the IRC out of the CBD without asking anyone who uses the system whether that’s good, bad or indifferent, and move it to Parramatta - 10 Smith Street, to be precise.

When you go to a museum or gallery or some other kind of Government institution they invariably ask you your postcode, so they have some idea of where the punters are coming from.  But no one did this - a relatively simple request could be made by court reporters asking advocates and lawyers appearing to record the postcode of their office or chambers.  Far too sensible and clearly not desirable because it would show virtually everyone who appears in the IRC has an office or chambers in the CBD.  Except probably us, with our office at Five Dock.

If governments don’t properly disclose why they’re doing things then we hapless citizens and users of government services try to work out why this would have happened, what was the motive.  Moving 14 people out to the west is clearly not the reason.
 
It’s hard for the Government to confess that the beautiful 19th century Victorian Chief Secretary’s building in Bridge Street that currently houses the Industrial Relations Commission and offices for the NSW Governor would be a marvellous piece of prime real estate that has had greedy, drooling developers trying to get their rapacious fat fingers on for decades.  The Government has already sold the Department of Education building, it’s only a matter of time before the other beautiful building in Bridge Street occupied by the Department of Planning for decades goes as well. Then they will all be lost to public ownership and access.

Some people think they can get away with anything...

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Published: Monday, 26 February 2018 13:12

We’ve just stopped a Council, which has been breaching the Award and stealing money from employees by making them work more than 35 hours a week in their tracks.  Mergers have the advantage, as we’ve seen at Georges River, of identifying things that don’t look right and where questions need to be asked.
 
When Murray River was formed by the merger of Murray Shire and Wakool, a member from Wakool was offered a job requiring a 36 hour week.  And he asked the obvious question - both reasonably and politely.  Not the obvious way with a, WTF!

But the Council was reluctant to answer the question, behaving as if ignoring it would make it go away.  We now know that historically, that has worked for them.  Then we became involved, they were reluctant to answer our questions as well and significantly frustrated by this stonewalling, we filed a dispute in December to have the IRC help find the answers.

We didn’t know whether we were talking to people who didn’t understand, or were a bit slow, or who’d been sprung at last and were trying to hide it, but before Commissioner Newall on 18 December it was agreed that LGNSW would work with the Council to try to understand what was happening.

What was happening was that Murray Shire (for longer than anyone was prepared to acknowledge) had been making 35 hour week employees work 36.  It was claimed this allowed them to accumulate sufficient hours to close the place over Xmas/New Year but the calculation showed that collecting up to 52 additional hours (or even 44, if you assume people take a bit of leave) they were ripping off the staff.

We understand that members from Murray Shire had done the calculations, worked out that they didn’t add up and asked for explanations from management years ago but they were ignored.  We understand how that happened because when we asked the same reasonable questions they ignored us. We had a phone conversation going through the maths of it all and there was almost a begrudging realisation about what was going on (their calculation had clearly been based on a 38 hour week), so clearly the lightbulb is starting to glimmer, although quite weakly.  We thought it was a sign they got it but then they went into hiding.
 
What we were asking was how many employees had been affected by this and for how long.  Reasonable questions, lawful questions and questions deserving an answer, but we got nothing.

depa is hard to ignore and with extremely valuable assistance from LGNSW we have now resolved the dispute for three depa members and four LGEA members (for reasons we don’t understand, USU members didn’t think there was a problem) with an agreed calculation to establish compensation going back six years.

The Council was keen to keep the settlement in individual Deeds of Release with confidentiality provisions and, for the sake of a settlement like this, we agreed.  This has been done.
 
But really, what’s going on down there?  The deeds our members signed required the payment to be made within seven days and the Council failed to comply with the requirements of the deed for each of our three members.  Almost as if they were asserting some bizarre corporate value of intransigence and wilful disobedience.
 
They failed by only a day or two, but a breach is a breach and clearly down at Murray River Shire there are far too many things well-beyond their understanding and capacity.

What else have they been hiding at the old Murray Shire?
 
This could be a regular part of depaNews because today we discover that the same HR Manager has a proposal to change the alignment of the pay periods now that Murray River has merged. She provides three options that are being considered and one of them allows for employees choosing to make up for a week when they don’t get paid with “one week of cashed out annual or long service leave”.

Jeeze Mary, do you mind.  The Award does not allow the cashing out of annual leave or long service leave under any circumstances.  It does allow long service leave to be taken at double pay but that requires someone not to be at work and on leave.  Clearly it’s time for someone to attend an LGNSW course on how the Award works....

Going down like dominoes at Tweed

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Published: Monday, 26 February 2018 13:12

In December we reported on our two unfortunate members injured at work where the Council and their insurer StateCover had accepted liability for psychological injury directly attributable to the behaviour of management.  That means that the injuries to our members were not their fault, even though we know GM Troy Green is reluctant to use those words.  We know that because we pressed him to do so. Yes, it is your fault Troy. You’re the boss.
 
To have one employee on workers compensation for hazardous, unacceptable and unpleasant behaviour by the same manager is one thing, but two is quite something else.

But now there are four.  The two new claims are not our members and, unfortunately for them, not members of any union, but one has a workers compensation claim in the same directorate as our members, and the other elsewhere.  What is it about Tweed?

Significantly, our first dispute this year was filed when the Council terminated the employment of our first member injured by the Council early in January.  It was a termination with a significant number of procedural flaws, no sensitivity, compassion or sympathy, and no evidence of care.  It’s one thing to have medical evidence identifying that the employee can’t return to that workplace (at least without four of the management going, starting at the top) but it’s another to bump them out the door in the first weeks of January when medical and industrial advice is hard to get.  It’s hard to imagine that the timing was mere coincidence, with the closure of our office and the advice the employee would have needed.
 
The dispute continues.

And now StateCover is starting to wonder.  Two accepted claims and two more to be determined in the next week or so. The Council must be getting close to being uninsurable.

Okay, we don’t mind a challenge, but …

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Published: Monday, 26 February 2018 13:12

When we happened to be the only people in the world who thought to ask a very simple question late last year about why employees with cars at the former Kogarah were receiving a value for those cars in the calculation of “superable” salary for superannuation purposes, and their colleagues in the Georges River merger from the former Hurstville were not, we had no idea what we were getting into.

But what the heck, we were off and running. LGS after an initial period of hostility and trying to blame everyone else is now doing everything to pursue compliance with the Fund’s own requirements for those in the Retirement Scheme and the Defined Benefits Scheme. The IRC is supportive with timetabling and encouragement and LGNSW is pressing its members to provide the information we need to work out just how big this problem is.

When the dispute was listed last in 2017 before Chief Commissioner Kite, LGS undertook to use the annual survey on superable salary to provide more information and obtain as much as they could about the extent of the problem.  LGS kept the parties advised of the documents as they were going out and the dispute was relisted for 30 January - the day after the deadline imposed by LGS for the information to be provided.

Only 38% of councils had responded in time.  January is not a good time and LGS said this is pretty consistent with their expectations.  While this is a disappointing response, it’s not a bad sample and it showed:

• 1506 of 4544 employees were covered by those responses - 33% of all members affected,
• 311 of those 1560 employees had access to a private use car but LGS claimed only 137 “required a value to be reported”. 

We can assume that those employees who didn’t require a value to be reported would be senior staff and senior staff contracts where the Council would have reported a TRP.

The IRC has an extremely valuable role to play here because it can direct the attendance of councils not cooperating and the Chief Commissioner provided an encouraging paragraph to be included in LGS follow-up correspondence.  The dispute was relisted for a further report on 21 February with the understanding that the words of encouragement would be included in correspondence from LGS the following day or so to the outstanding 62% of councils, there would be telephone follow-up and LGNSW would be actively chasing up those councils as well.
 
On 21 February when the dispute resumed, all councils had responded - the last slacker Council (which LGS would not name) responding only the day before.
 
We will meet with LGS on 8 March after they’ve had time to check, analyse and validate the responses and present some exact figures.  The information provided, before analysis and validation, shows 4402 employees in the funds affected, 328 employees where the Council claimed a value had been reported but of course it’s those councils that didn’t report a value but where employees have private use of a Council car, which need to be identified as well.

But there is a limit to the value of this information.  It will show which councils are providing a value for the private use of the Council car in superable salary but only prospectively for 2018.  It will then require a forensic examination of individual records to determine which councils had been doing so in 2017, 2016 and so on all the way back to when this became a clear and unequivocal obligation in 2003.
 
Clearly this is going to be a long haul.
 
We have 145 members who’ve given written consent for depa to have access to information held by both the employer/s and LGS which might ordinarily be regarded by either as confidential to the extent necessary to settle this dispute.  It may well be we can use those members and their consent to audit those councils.  If you are a member affected by this dispute but you have not provided your written consent, it would be a good idea to do so now.
 
While we will have some information on the current position (and we know of one Council in particular that has confessed to employees that “for the first time”, they will be doing it right) it’s going to take a long, long time to go back and research this sufficiently to work out how to deal with it.  At the very worst, it could involve a forensic examination of salary histories and the employer advice on every single person with a Council car, at each or every of their councils, going back over the last 15 years...

And then we’ll have to start looking at people who retired since 2003 and see how they were treated.  LGS has accepted that after we have reached a settlement for those currently employed, they will write to members of the relevant funds who have retired since 2003 to see if they want to make a claim.  We’ve had a few members contact us from that category and we are committed to assisting mopping up for the retired members as well.

But this is a big deal.  It is also a very, very, very big job.  It won’t be finished this year but we will have a better idea of the figures after our next meeting on 8 March.