A mixed bag

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Published: Wednesday, 28 July 2021 10:49

OLG Model Social Media Policy - consultation draft

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Published: Wednesday, 28 July 2021 10:49

The Office of Local Government has released a model social media policy for consultation across the industry. They say it has been developed using “best practice from social media policies of a diverse range of NSW councils, as well as from Commonwealth and State Government agencies.”  The Draft Model Code is relevant for all employees, whether they use a council’s social media, or social media at work for private purposes (which we don’t recommend) or social media for private purposes at home, but may identify themselves as council employees.

We’ve seen it all as desktop computers took over the workplace in parallel with access to the Internet. People using common sense understood the benefits (and more importantly understanding and managing the risks) and foolhardy people using Council communication systems for a whole range of inappropriate purposes.

In those days, Sydney City had such difficulties with employees accessing porn and unacceptable images that they introduced a skin screening filter which stopped everyone circulating or receiving pictures of their family, the kids or their Mum.

There can’t be many more potentially distressing experiences for a union official than attending a meeting with the CEO, accompanying a member who had been given a “Show Cause” letter about why he shouldn’t be sacked because of his consistent breaching of guidelines, with a member who doesn’t quite get it. This is an opportunity the City provided in the past to metaphorically get down on your knees to save your job.

Patient schooling of the member before he threw himself at mercy of the CEO, encouraging him to explain how, while he was suspended over this, his wife had sent him to the other bedroom - and surely never to return. When you’re sprung, we all know it’s about contrition and acknowledgement. It’s one thing to expect that the member is going to do those things rehearsed but it’s another one when they surprise you and immediately say to the CEO, “come on, we’re all adult men here, aren’t we”... The idiot must’ve thought he needed to show cause why he should be sacked. He was.

And there were plenty of those experiences. Everyone has grown up a bit, everyone understands now that it’s the Council that owns the system, and you use it under their rules.

This Draft Code will be the rules across the industry. Submissions close this week but the OLG will accept late submissions, as long as it’s not too late. We will be submitting a submission of our own. An employee’s private use is found in Part 8 and submission or comments go to .

We think it may prejudice those of you who use LinkedIn, but this is a document worth reading and responding to the OLG. And quickly, too.

NSW Building Commissioner putting the frighteners on developers, and their certifiers

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Published: Wednesday, 28 July 2021 10:49

If you go to the Office of the NSW Building Commissioner’s website, you will see a pretty bold call  that they are “Leading a once-in-a-generation reform of the design and building industry”. Considering the Office has been operating for only two years, with a handful of staff to start, their action and achievements so far are most impressive.

We’re always very interested in who was the Private Certifier for these jobs, something not easily found but normally known to our members as building certifiers in the relevant council area. As a plea, first of all, we’d be delighted to hear who the certifier was every time we hear the news of stop work or prohibition orders. Please let us know.

We don’t have a contact in the Office of the NSW Building Commissioner, we have no information at all about who works there, how they operate on site, whether they are ex-employees of local government and therefore probably, once upon a time, members of ours, how many of them there are, or how many of them there will be.

If you know, or are connected, please let us know.

If you click at the top of the page on the right-hand side on “Stop work, prohibition and rectification orders” you are taken to a clear demonstration of the Commissioner’s power to stop work, stop occupation certificates from being issued, or order rectification work to be done, in residential apartment buildings.

As a summary, there’s been only one Stop Work Order, on 8 July 2021 at Bellevue Hill, so someone at Woollahra could tell us about that.

There have been eight Prohibition orders since December 2020 covering Mascot (Bayside Council), Lindfield (Ku-ring-gai Council), Auburn (Cumberland), Asquith (Hornsby), Castle Hill (The Hills), Bellevue Hill (the same development where a stop work order was issued - Woollahra), Manly Vale (Northern Beaches) and Parramatta (Parramatta City).

There have been thirteen Building work rectification orders since November 2020, in the areas of  the councils listed above.

And one Enforceable Undertaking only last week in Castle Hill that, according to the SMH on 27 July (and prompted this article) reported on the Building Commissioner settling with the developer by providing an $11 million safety fund for faults, independent engineering monitoring of the basement for 10 years and the development’s owners’ corporation to receive a twenty year structural guarantee and a ten year commitment to rectify and pay for defects”.

Good job. Imagine what they could do with twice the staff.

How are the prestigious depa HR awards looking for 2021?

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Published: Wednesday, 28 July 2021 10:48

Last year’s winner, Sutherland Shire, has gone hard looking for back-to-back awards.

• First it was a member where HR had inappropriately denied him a car allowance when he started, and as a result of our pursuit, agreed to retrospectively pay him for two and a half years of car allowance under the Award, and continue to pay the allowance while ever he worked there;

• then we sprung them breaching their historic Core Enterprise Agreement which has strict requirements about how an employee acting in a higher graded position should be paid, by seriously thinking that a new HR protocol could provide something less, when we all know HR protocols can’t override a legally enforceable entitlement under an Award or an Enterprise Agreement - still being resolved;

• then breaching the obligation in the Splinter Award to pay employees going for a vaccination “to leave, without loss of pay for the time reasonably required to receive ... a vaccination” . They did this by removing current market allowances, meaning there was a loss of pay, and at the same time imposing their own four hour limit - still being resolved.

And don’t even ask how the potty-mouth ex-Mayor is going with building and health standards in his three cafes. No, he hasn’t abused anyone lately, but that’s been hard because as a result of his troubles on the last occasion, a Memorandum of Understanding was developed between Sutherland and Georges River to have the other council’s EHOs conduct inspections for any premises owned or operated by a Councillor - happily resolving any conflict of interest and possible undesirable pressure, and the problem we have seen over the last few years with two of our members being abused by Councillor Pesce.

Those three cafes must comply by now, mustn’t they?

An impressive start but there is one Council in the wings, and while management has changed, others have embraced the concept of hangin’ em high as if they’ve inherited it from those who went before. There’s a place with a real cultural problem.

Next issue

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Published: Wednesday, 28 July 2021 10:48

Maybe a result in Ian Robertson v Office of Local Government, currently being considered by a Senior Member of NCAT, some updates on Sutherland (there can’t be more can there?) or maybe some news on those wanting a lynching.

While we are pursuing Sutherland to remove their unenforceable four hour limit, instead of the Award obligation for them to provide “time reasonably required”, it sounds like there may be other councils out there trying to impose equally unenforceable limits on hours available. This could be bigger than we think.

It’s narky, miserable, counter-productive to getting control of this pandemic by mass vaccination, driven only by penny-pinching, when everyone should be vigourously encouraging vaccination. If other councils are looking at it, it will do them significant reputational damage as well.

And maybe Greater Sydney, Central Coast, Newcastle, Wollongong and Shellharbour might be out of lockdown.

Where’s Tim?  

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Published: Tuesday, 15 June 2021 13:29

Gorne.

On 19 May, the SMH reported “the senior NSW bureaucrat who oversaw the controversial $250 million government fund at the centre of the pork barrelling enquiry has left his job”. That day, Department of Planning staff were told that the OLG Chief Executive would be “pursuing further career opportunities outside the business”. And Department of Planning Secretary Jim Betts told staff “we wish him every success with his future endeavours.”

He has resigned from the public service after 25 years.

NCAT hears Ian Robertson v OLG

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Published: Tuesday, 15 June 2021 13:28

On 9 June Senior Member Deborah Dinnen heard additional argument from the parties in support of submissions in writing already filed. The appeal filed by depa, is a response to a blanket rejection by OLG for access to documents relevant to the decision made by former OLG chief executive Tim Hurst on 5 February 2021 over a Code of Conduct breach by a Councillor at Wagga Wagga.

In particular, depa had pursued documents that may reveal how Tim Hurst’s order at paragraph 20 recorded that “this conduct occurred in a single episode, in the absence of any prior offending or post event conduct in the past two years and a lack of previous incidents of misconduct”, on the part of the Councillor, which is demonstrably untrue.

OLG had rejected our application under the GIPA Act on the basis that the “information sought was excluded information”, in that it was either part of, or “related to”, OLG’s investigation.

OLG filed evidence from their Manager of the Investigations Team, who was cross-examined by our barrister, and we had filed evidence of the process demonstrating factual errors in the Order and the steadfast refusal of the then OLG Chief Executive to respond to our emails pointing out these problems and asking for an explanation. OLG elected to not challenge this evidence...

This is not litigation at its most exciting or colourful. It’s interpretations of administrative law and, in particular, how broadly the expression “relates to” should be interpreted. We argued that process of the Chief Executive receiving a report and deliberating upon it and making a judgement was qualitatively different to the investigating process that preceded it.

The OLG’s argument means that they are not accountable for anything to do with an investigation because of protections under the GIPA Act and there are no options to allow access.

As it was eloquently and compellingly put by our barrister Ian Latham:

The absurdity of using such a paraphrase is that almost everything that the department does in consequence of the complaint would be covered by the definition. Details of a training course imposed as part of the disciplinary process would be so covered. Further, it would be covered by the definition without temporal limitation. The training course will be kept secret forever. Long after the state of New South Wales crumbled into the sea, there would be a file containing details of attendees at a Council training course. That could never be open to the public.

While the case is concluded and a decision reserved, the Senior Member invited the parties to provide any “extrinsic material” that may assist, including potentially second reading speeches and explanatory memoranda on the GIPA Bill, to allow the Tribunal to resolve issues affecting the transparency and accountability of the OLG.

Interestingly, the Office of the Information Commissioner applied to make submissions and in their 63 paragraph submission, focused solely on process and supported neither party. Considering that in the second reading speech by NSW Premier Nathan Rees on 17 June 2009, the Premier said “with these bills New South Wales will gain the nation’s best Freedom of Information laws. The public’s right to know must come first... Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information … this is supported by an explicit presumption in favour of disclosure”, this was a wasted opportunity. And given the Premier’s description of the Information Commissioner as a “new, independent champion of open Government”, hardly consistent with a champion of open government.

We have made additional submissions in response to the Senior Member’s invitation, seizing upon statements indicating a clear intention to improve transparency and integrity of government and end unnecessary secrecy.

This intention is clearly not evident in the way OLG conducts investigations, protects their findings and takes deliberate steps to avoid transparency and accountability.

We await the Senior Member’s determination.

Kiersten Fishburn appointed new Chief Executive of OLG

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Published: Tuesday, 15 June 2021 13:27

Kiersten Fishburn has been appointed by the Secretary Department of Planning, Industry and Environment (DPIE) to replace Tim Hurst. Kiersten brings an impressive career in local government to a job that has been filled by career public servants with limited experience in local government, almost forever.

Six years as Manager Culture and Libraries at the City of Sydney, Director of the Casula Powerhouse Arts Centre for five years, and CEO of Liverpool City Council for almost 4 years until July 2020, we were sorry to see Kiersten go from Liverpool. She introduced a benign, modern and accountable approach and a progressive touch to local government Management in an organisation that desperately needed one. She was open and accessible and her appointment is welcomed.

I first met Kiersten in the IRC one morning and she had attended in a dispute she was having as CEO of Liverpool with the USU. I’d asked the combatants having an adjournment where the GM was and they said she was around the corner, so I bounded around to introduce myself and found her breast feeding. We still introduced each other and it was a great first impression for me of a CEO being a mum but also able to be tough, when needed. And another person who had introduced the kid to the IRC quite early in their life.

That’s the good news about the appointment. The bad news about the appointment is that Kiersten already has a full-time job - as Coordinator General, Planning Delivery Unit at DPIE, and will now be asked to continue that full-time role and add to it what has, up until recent years, a full-time Chief Executive role of the OLG. Historically, OLG and DLG before it, have not only had a full-time Director-General CEO, but a full-time Deputy as well. No wonder things are slow, and inaccessible and frustrating.

Does this say something about the NSW Government’s priorities on the regulation of local government?

A lesson for all councils from Bega Valley - you can’t make employees forfeit their rights to progression under the Award

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Published: Tuesday, 15 June 2021 13:26

GMs can do the darndest things! Leanne Barnes is the GM at Bega Valley Shire and we’ve just stopped her imposing a “pause” on progression for employees in the Council’s salary system.

In a process looking to save some money in the COVID-related fiscal pressures experienced by all councils, the GM and Executive developed a Draft Operational Plan and Budget 2021-2022 which included the following question and answer for staff:

Q.           Why has the annual salary increment been “paused”?

A.            Employee expenses are one of our largest costs. While we needed to find savings in the budget, the priority was to maintain our current staffing level and continue to deliver services for our community. Staff will receive the annual award increase of 2%.

Not a proposal at all really, because this was advice that it had been paused, not that it was being contemplated. And it was to be included in the public exhibition of the Draft Operational Plan and Budget, so the community have a say.

But apparently no one on the Executive knew that employees have rights under the State Award for an annual review and possible progression based on the acquisition and use of skills and/or performance. And worse, no one thought to ask anyone who did.

On 4 June we emailed the GM and her trusty advisors and you can see our email here. It’s an email that will be useful if your council is looking at similar steps to make employees responsible for the effect of the pandemic.

We said, no, sorry, you can’t do that, because your obligations under clause 7 Salary System prevent it. You can ask employees to forfeit it, and make a sacrifice, but you can’t simply decide to “pause” it and somehow put your obligations under the Award on hold. We urged them to take advice and they eventually contacted LGNSW.

I was thrilled to receive a thank you email from Leanne expressing her appreciation on behalf of the Council for pointing out that what they were trying to do was unlawful under the Award, and they were indebted for my advice. That’s not what they said of course, because always these withdrawals or retreats have to be expressed in a way that makes it look like they weren’t caught red-handed by the unions.

So Leanne said, “we considered your submission on the Operational Plan and most importantly the feedback and input from staff”.

Thanks Leanne, you’re welcome!

A lesson for all councils from Port Macquarie Hastings - you can’t make employees forfeit their rights to historic employment conditions under council policies

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Published: Tuesday, 15 June 2021 13:25

GMs can do the darndest things! Port Macquarie Hastings Council has just written to the unions saying that they have frozen an historic entitlement to payment for untaken sick leave. Not that they are contemplating doing it, and are interested in consulting to determine whether this historic practice is one where the Council has a unilateral right to change it, but that they have frozen it. From 11 May, apparently. Without telling the employees affected, nor the unions.

In 1993, John Fahey’s NSW Coalition Government decided that they didn’t like employers and unions agreeing to have arrangements for the payment of untaken sick leave. An odd thing to do, when you think about it, because a great deal of what the government had been saying before that was all about the rights of employers and employees to reach agreement on their employment conditions.

But the Government amended the Industrial Relations Act to prevent the payment of untaken sick leave being included in NSW Awards. This missed the target in local government where if employees have this as an entitlement, they invariably had it under some historic Council policy and as a condition of their employment.

There were some councils which thought that the change in legislation affected contractual entitlements not included in an award as well and tried to strip that entitlement from their own employees who may have had it under a policy or in some other ways condition of employment. Pretty stupid, really.

Bit by bit we were able to convince the councils to restore the entitlement but it was not until an industrial officer of the USU, Brian Harris, launched a prosecution of Murrurundi Shire for trying to remove a policy entitlement thinking because they had misunderstood the legislative change.

Beaten in the first argument before the Chief Industrial Magistrate, the Industrial Court on appeal overwhelmingly found for the union, and provided us all with an enduring principle about those things an employer can change, and those things they can’t.

So, when PMHC wrote to the unions on Friday 4 June saying “the current arrangements in Council’s Termination and Exit Procedure, allowing for the payment of sick leave for employees who commence with Council prior to 10 July 2008, is inconsistent with Section 27 of the NSW Industrial Relations Act”, here was another Council misunderstanding the legislation.

And in a brief discussion, it was clear that the Council had no idea at all how long this practice had existed, when it began and why, whether it was council resolutions creating a policy (which it turns out it was, with Port Macquarie Municipal Council doing it in the 1970s or so) or what. That would have been a good idea before they launched into it.

Again, like Bega Valley, they hadn’t sought advice from anyone who knew what they were doing, and are now doing so, we met to discuss it today, and next month we’ll let you know how this ends. Probably another thank you from a grateful GM for our involvement!

In the meantime, if you’d like to see a Judgement of the NSW Industrial Court that really smashes an employer, here is the link