Agreed solution to chronic s353 misunderstanding

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Published: Wednesday, 16 July 2025 16:52

Councils (meaning GMs and/or HR) have been misunderstanding the obligations under section 353 Other Work almost since the Local Government Act was made in 1993. We’ve had disputes since then (twice with Sydney City!) with lots of councils where someone insists that anyone who wants to do anything other than their Council job, needs the GM’s approval. Bossy, moi?

For those of you interested in the history of this - how the declaration of everything was deliberately rejected by the Department of Local Government/NSW Government because it was unnecessarily invasive of employees’ privacy – here is a document showing that history.

It is also patronising because the decision to require everything to be declared assumes individual employees are unable to make that decision themselves. It’s a misuse of section 353 which clearly establishes that it is the employee’s obligation and that the only work that needs to be declared, and approval sought, is work that relates to or conflicts with the employee’s Council job.

It doesn’t matter whether it’s a misunderstanding, or prurience (wanting to know things that are none of the employer’s business) or patronising, but LGNSW and the three unions have always believed that it was the employee’s obligation to declare specific kinds of work only. That has been a consistent view since the first Exposure Draft Bill in 1992.

Now the matter is clear and unequivocal. The LGNSW Board resolved, and this week signed off on a Joint Statement on Other Work, which will be circulated to their HR network this afternoon, and more broadly in their General Circular next week.

Here is the Joint Statement, we encourage our delegates and members generally to embrace it, to raise it with their Consultative Committee to have uniformity in the industry without the ignorance, prurience or patronising.

That includes councils which have tried to reject this advice and ignore our correspondence, who will not be able to any longer. Yes, that’s you, Laura.

Unions win protections for employees in significant IR Act amendments

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Published: Wednesday, 16 July 2025 16:52

The NSW Labor Government committed to a review of the Industrial Relations Act 1996 (which underpins everything we do, and the employment of local government employees across the state) as one of their first decisions. They had been pressed to do so by Unions NSW on behalf of New South Wales registered unions, who skilfully managed the process and the extraction of improvements from the Government. depa is an affiliate of Unions NSW and, just like being a union member at work, it pays to belong.

The process has been managed by Industrial Relations Minister Sophie Cotsis, with the appointment of a panel - former IRC President Roger Boland with significant experience and expertise in the NSW jurisdiction, and Fair Work Ombudsman and advocate of “interests-based bargaining”, for want of a better term, Anna Booth.  

As the IR Commission now only covers the NSW public sector and local government, there was a heavy public sector focus - a monolithic and old-fashioned structure that had ignored the significant modernisation and flexibility enabled by the Local Government State Award.

Boland/Booth made a number of recommendations but because the Government, for reasons known only to itself, refused to share the report, we can only speculate on the report’s contents  but after some unnecessary delays, amendments passed through Parliament without opposition and are already law, providing enhanced protection for workers:

• Enables unions to run WHS prosecutions and receive a moity (a proportion of the penalty) for successful cases;

• Enshrines gender equality and the elimination of workplace bullying and sexual harassment as explicit objectives of the IR Act;

• Strengthens WHS compliance by allowing unions to bring forward prosecutions with moiety for WHS breaches following consulting with SafeWork NSW;

• Implements a new workplace bullying and sexual harassment jurisdiction at the Industrial Relations Commission (IRC);

• Empowers the IRC to facilitate return-to-work for injured employees in the public sector and local government;

• Allows unions and employers to have unresolved WHS disputes heard independently by the IRC;

• Creates new powers to hold SafeWork NSW to account by allowing unions to seek reviews of its decisions; and

• Makes it mandatory for employers to comply with the WHS codes of practice or a higher standard.

These are significantly enhanced protections and action under these new areas of jurisdiction will be pursued across the industry.

We record our thanks to Unions NSW Secretary Mark Morey and his astonishingly effective team, particularly, for their dogged determination to get this done - notwithstanding the continuing stand-off with Government over their pernicious plans for slashing and burning Workers’ Compensation.

New Bullying jurisdiction will allow prosecution of councillors

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Published: Wednesday, 16 July 2025 16:52

We all know how difficult it is to manage bullying and boofheaded councillors. OLG struggles to do it in a timely and sufficiently punitive way and depa has historically been involved in disputes with half a dozen councils. At these councils, members have resolved to band services and responses to councillors who have said abusive things about our members in public.

We have pursued apologies, and received them, and been involved in disputes in the IRC to force apologies and commitments to better behaviour. In two disputes, OLG sent an observer, thereby revealing their own lack of confidence in their capacity to do what we were doing.

The new bullying jurisdiction will allow employees, including the GM being bullied by councillors, to take action and seek remedies and financial penalties.

Here is a link to brief commentary by a prominent IR barrister.

Bega Valley agrees to return the on-call roster

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Published: Wednesday, 16 July 2025 16:52

In the April issue we reported on an argument with Bega Valley about the right to disconnect after the Council had decided to terminate a long-standing on-call roster of EHOs to deal with high impact environmental accidents. The Council took the view that the roster, guaranteeing the availability of EHOs, cost too much at $12,000, and they would be better off individually ringing people out of hours.

At a meeting in Bega on 10 June, it became obvious that the Council was also concerned about having insufficient suitably qualified EHOs - something relatively easily resolved by that day agreeing to provide training ASAP to have suitably qualified people to fill the roster. This seemed a relatively simple issue to resolve, so it no longer was an issue about the right to disconnect.

In a happy conclusion, the Council has agreed to reinstate the roster for a trial period of 12 months, after surprising themselves that there were potentially seven employees who could receive expedited training on-site to staff the roster. Well worth the trip.

The Premier and Treasurer will get into bed with anyone

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Published: Friday, 13 June 2025 13:59

The Treasurer, the Liberal apparatchik and the Premier

On 9 May we emailed all members under the heading “Workers Comp is changing - Speak out before it’s too late”.  Everyone needed to know of the dramatic changes being proposed to Workers’ Comp by the Minns Government – and in particular their attempts to effectively abandon the Psychiatric Impairment Rating Scale introduced by the Carr Government in the late 1980s. This would see Whole Person Impairment (WPI), currently requiring 15% impairment measured by the psychiatric impairments scale, leaping to an impossible level of 30%.

Dr Julian Parmegiani, the designer of the rating scale, described the proposal as “tantamount to ending the scheme.”

The moves are driven by the Treasurer Daniel Mookhey – to cut costs of workers comp by reducing benefits – instead of strengthening obligations on employers to provide safe work and encouraging a speedy return to work.

In 2018, Mookhey spoke against the “arbitrary cut-off” of 15% and attacked the Coalition Government for resisting Labor’s attempts to repeal the 15% test despite evidence this was contributing to self-harm and suicide.

He said, “what other policy have we ever implemented that we know leads to the risk of self-harm and we in this parliament have refused to do anything about it?”

A good question, and a timely reminder that Mookhey once did good work – something that seems a long time ago.

Prior to the 2023 election, 19 out of 22 current ministers signed a pledge circulated by Unions NSW to cut the section of the Workers’ Comp Act containing the 15% and support a system that “provides ongoing medical and financial support for workers”.

Labor sceptics will say nothing disappoints like a Labor Government, but this is a government with a history of supporting proper Workers’ Compensation, which is now turning its back on those commitments as if they had never been made. It’s shameful. In addition to making it more difficult to satisfy the WPI test, people with psychological injuries would be cut off benefits after two and a half years, and medical treatment after three and a half years.

The Government’s proposals have been described as “extreme and harsh” by lawyers, warning they could lead to “seriously injured workers being left without longer-term support”. The consensus of legal opinion is “if all of these proposals were adopted, the overwhelming majority of people with psychological injuries arising from the workplace would not be entitled to make a claim”.

A related proposal for changes to the Industrial Relations Act 1996 establishing a harassment and bullying jurisdiction in the Industrial Relations Commission is imminent. It would require already injured workers to make claims in the IRC that they had been bullied or harassed at work, before proceeding with a Workers Comp claim. Unions NSW Secretary Mark Morey said, “it is totally inappropriate, making people who have suffered any level of harassment, sexual or otherwise, having to litigate that, I think anyone would tell you that is not a trauma-informed response.”

More than a dozen ALP backbenchers prepared a signed letter to the Premier urging him to delay the cuts to Workers’ Comp entitlements, until the Premier’s office warned them against signing it. The SMH reported “a senior adviser in the Premier’s office called most of the government’s backbench MPs, dissuading them from adding their signature to the correspondence. ‘She monstered people’ one MP said of the calls.” The Premier’s office responded, “there was nothing untoward”! Charming.

Opposition Shadow Treasurer Damien Tudehope criticised the Government for not providing modelling to support Mookhey’s claim the Coalition’s planned amendments would “add $1.9 billion additional financial pressure to the scheme.”

As the dissent fermented through Parliament House and, the Herald again, quoted a crossbencher as characterising the senior government members as “panicked” and “rattled”. And so they should be.

The legislative changes are now delayed indefinitely after the Treasurer failed to convince the Coalition and crossbenchers to back his reform. There had been intense and broad lobbying of all politicians by Unions NSW and unions, forcing the government, trying to avoid an embarrassing loss in the Legislative Council, to not oppose a second enquiry into the bill.

With the changes opposed by the Coalition, Greens, crossbenchers and the unions, it has now been referred to the Public Accountability and Works Committee and in doing so, an amendment has provided the committee with the scope to interrogate details and modelling underpinning the proposed reforms.

Despite the Treasurer having to justify statements about costs, at the Business NSW’s prebudget breakfast on 11 June, the Premier stepped back from allegations he had made that the scheme would collapse within two years. He said, “in the next 5 to 10 years”. The Herald reports the Minister was “asked to reconcile the two timelines he put forward, means did not answer directly.” What a shambles. Hard to imagine how these ill-prepared pretenders will withstand forensic examination in the Upper House Committee.

The Opposition Shadow Treasurer, Tudehope claimed that he and Mookhey had “swapped friends” but with such widespread opposition, including 13 dissidents within the Government, the Premier, and particularly the Treasurer, are on the back foot.

Panicked and rattled, or not, the Premier and Treasurer were feted at the Business NSW breakfast.

Making sense of our first image, Business Sydney Executive Director Paul Nicolaou (look him up, an interesting history as a fundraiser for the Liberals) wallowed in the love-in, and urged the room: “turn to the person on your left, and say: ‘I love Chris Minns,’ now turn to the person on your right and say: ‘I love Daniel Mookhey’”. *

Described as an “effusive” welcome from the Business Council and by others as an emetic, they should enjoy the experience.

It’s hard to imagine a similar welcome for the Premier and Treasurer at the next ALP Conference in Sydney Town Hall in July.

(*Business leaders invariably think they’re very smart, but if you ask everyone to turn to the person on their left, all they will see is the back of the head of the person on their left…)

What about us?

Arguments about Workers Comp are more than relevant to us. We have members regularly at risk of psychosocial injuries in the work they do. It can and does happen everywhere. In some places they don’t learn from bad experiences.

Lake Macquarie, for example, has significant form here. In 2014 an employee made a claim in the Federal Court alleging their heart attack was caused by stress and bullying by a manager. Well into the second week of hearings, the Council settled the case in an undisclosed settlement that would have cost the Council (and/or their insurers) squillions.

They pursued a member of ours in 2016 with flimsy allegations and a lack of procedural fairness and drove him, through our workers comp lawyers, to pursue them through the Personal Injury Commission. The Council, having steadfastly defended their behaviour, then chose to withdraw their evidence, not call any witnesses, nor in any other way contest the claim. They were forced to reimburse our member 18 months of sick/long service leave, they withdrew their defence that his injury was “wholly or predominantly caused by reasonable action from the employer,” (thereby conceding that management was unreasonable) and the Commission awarded the statutory maximum in weekly compensation for up to 5 years, or as long as the injury continued.

The case continued, the member established he was impaired sufficiently to trigger the 15% WPI, and again, the Council (and/or its insurers) paid squillions. And all the while employees who bullied and harassed remained employed, some were promoted …

This can happen to anyone.

Got any good ideas?

Details

Published: Friday, 13 June 2025 13:59

The final pay increase in the 2023 Local Government State Award will be paid in the first pay period after 1 July - 3%, plus $1000 lump sum or 0.5% of your annual salary system rate of pay as at 30 June 2025, whichever is the greater.

Negotiations for the 2026 Award, which will operate from the first pay period after one July 2026, will start later in the year and this is an invitation to think about anything that happened to you in work that could have been dealt with better - things that might have happened during that time where you could have used an Award for protection if they’d provided certain protections, things that did happen that disadvantaged you and shouldn’t have happened, where you needed better protections. Is someone getting in the way of you being able to take two days sick leave as health and wellbeing leave, because they lack imagination and are too rigid-minded?

Let us know, emails to by COB Friday 18 July, to give us time to put our Log of Claims together.

LGS/Active Super fined $10.5 million plus costs

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Published: Monday, 14 April 2025 14:00

The February issue of depaNews was, as we expected, a revelation to just about everyone working in the industry and, as we’ve discovered subsequently, also to some councillors alarmed about issues of governance and the role of LGNSW directors.

The only negative feedback came from circulating depaNews to the other LGS Shareholders, drawing a response from the LGEA shareholder representative, their president Bede Spandangle, “could you please remove my email from further correspondence regarding this matter.” Probably not. While ever depa remains a shareholder we will communicate with the other shareholders whenever we think it appropriate.

The LGS story gets worse.

On 18 March 2025, Justice O’Callaghan of the Federal Court concluded his role, having already found LGS/Active guilty of greenwashing, by fining Active $10.5 million. In the last issue we dealt with what we regarded as an inadequate response by Active in the hearing in December over penalties, and our expectation that Active’s lawyers, having humiliated the fund and all its members by describing LGS as “a very poorly-resourced entity”. As if the SMH describing LGS as the “disgraced superannuation fund” on multiple occasions, having been found “to have misled and deceived investors”.   

The Judge was clearly disappointed at the lack of contrition evident from the LGS/Active defence of their position during the hearing of the case and this continued in the sentencing hearing.

The Orders issued by the Federal Court on 18 March rejected the flawed arguments presented on 17 December and took LGS’s apology to task. He noted “some contrition for its contravening conduct” but the contrition and the apology came in the sentencing hearing rather than before. “Although Ms Heffernan made that apology, it must be seen in light of the response of LGSS when it was confronted by ASIC with allegations of the contraventions and in particular the contentions it made at trial in its defence... Many of the submissions that it pressed in its defence at the liability hearing were contrived”. He listed eight submissions in particular, using terms like “threadbare” and “indefensible”.

And while he accepted LGSS/Active cooperated with the regulator/prosecutor “by attending voluntary conferences with ASIC, but again, such cooperation must be seen in light of the way that LGSS chose to run its case at the liability hearing”, for Justice O’Callaghan it was clearly not enough.

Strategic decisions made by LGS, always explained as based on legal advice, whether it be initially with ASIC, the trial itself, its reluctance to accept responsibility, its failure to disclose to members, and it’s crying poor at the sentencing hearing, were all bad decisions.

Justice O’Callaghan made it clear in his Reasons for Judgement that were it not for Active disappearing into Vision, and the potential that a more significant fine would also penalise the other party in the takeover, then the fine would have been higher than the $10.5 million.

The Orders also provide for an Adverse Publicity Order, in the form pressed by ASIC which will provide the details that were not disclosed to members during the course of this legal action. Even on this issue, the Judge’s disdain was evident:

“LGS asserted, without evidence, that there may be practical difficulties with an order that the text of the adverse publicity order remain available on relevant webpages after the merger is effected. But in my view, an order substantially in the form sought by ASIC is appropriate…”

And finally, the Court rejected the argument from LGS that they pay 90% of ASIC’s costs, to order “that LGSS pay ASIC’s costs of the proceeding.” All of it.

The parties had three weeks from 18 March in which to file any appeal, that three weeks has expired. There has been no advice to members or anyone else about the $10.5 million fine, the implications of the costs order, and there is no Adverse Publicity Order on the Active site, nor on the Vision site.

Clearly there will be more to this story.

How have members responded?

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Published: Monday, 14 April 2025 14:00

One wag, feeling like they were driven from the much-loved fund, wondered if help was available from the United Nation’s High Commissioner for Refugees. Another railed about the role of Directors on the board, and provided us with a news release that “APRA now empowered to remove super directors”. APRA announced “that its ability to remove directors from a superannuation trustee board had been limited but that situation had changed” effective from Friday 14 March, the week before the Federal Court’s orders were made.

Some members have already left the fund and moved their money elsewhere, as have I. While we’re happy to talk to members about it, we’re not encouraging anyone to do anything but make their own decision.

Bega Valley challenges Right to Disconnect

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Published: Monday, 14 April 2025 14:00

Bega Valley has removed an on-call arrangement for EHOs responding out of hours to high impact environmental accidents. A roster had existed for more than a decade until the Council thought there were insufficient callouts to justify spending $11,000 a year to provide a guaranteed response from environmental health officers.

The first observation is that seems bugger all in the scheme of things. Many of the South Coast’s most wonderful oysters are at risk from effluent and sewerage from flooding or from failures in the Council’s own infrastructure, boats overturning or washing up on rocks and breaking up, fuel spills on council roads, the lot.  

Historically there were two rosters, one for Rangers who need to be on call to deal with a multitude of sins, but when the Rangers find that it is an environmental problem beyond their expertise, they will no longer have EHOs or other professionals to refer it to them.

We’ve been politely engaging with the Council - first, with an acting Director in a discussion involving LGNSW that while a council could phone employees who were disconnected, there is no obligation on the employee to pick up. The Right to Disconnect in the 2023 Award was a significant step protecting employees out of working hours, many of whom were expected to pick up and answer, or else.

The employer’s right to call, when employees have the right not to answer, isn’t a reliable system. It doesn’t help an environmental disaster for the destruction of oyster leases, for example, so why bother.

We were in a stand-off with the Council, but the return of the Director Community, Environment and Planning took us back to square one.

Her attitude is to have “the team, ensure they understand the situation, and implement a call tree” so that the poor Rangers, or anyone else wanting to report a significant environmental problem, would start at the bottom of the tree, and getting no one picking up on that number, would move up the tree. And be under no illusions, having the team “understand the situation” means we are going to pursue you to do it, because you work for us and you owe it to the community.

The problem is that the Executive decided to remove the on-call arrangement, but won’t accept it is the Council’s responsibility to have an on-call system that’s reliable, and who will want the employees to forfeit their right to disconnect. And some councillors are only too ready to make it the employee’s responsibility if oyster leases are compromised and not the Council’s for failing to have a reliable on-call arrangement.

There are some councillors quite happy to bag staff publicly, which is a breach of the Code of Conduct, but when employees raise the breach with the GM, they have been told to think about it, because it would cost the Council $25,000 to conduct an investigation, which might get a councillor disciplined, but the Council would see that as a waste of money that could be better spent. “$25K to receive a possible apology” as the GM says, is a significant step protecting employees against attacks by councillors. Particularly in a Council where the GM says he can tell employees what to do, but he can’t tell councillors.

Yes he can, it’s his job.

Bega also has history on attempting to override Award entitlements to annual salary increments. In June 2021 we nailed the GM and Executive for proposing a “pause” on progression because “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.” It did not proceed.

Clearly the new GM and Executive haven’t learned from that. This is a risky and potentially unlawful strategy, even though it may only be $11,000 saved, which is currently available in the division’s budget. No wonder they have trouble recruiting to fill numerous vacancies.

As this issue of depaNews is distributed, we await a response from the Director Community, Environment and Planning on both these issues. Patience is a virtue, time is running out.

Oh no, Richmond Valley has got it wrong again?

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Published: Monday, 14 April 2025 14:00

Richmond Valley received the prestigious award for the worst HR in local government in 2018 for creating the title of “scholar” on scholarships, when they really were trainees, with rates of pay determined by the Award. They thought calling them “scholars” meant they could be underpaid, because they weren’t trainees. We retrieved $30,000 in back pay for one member, and there were five other so-called “scholars” also owed back money. Then the GM thought it appropriate to make them pay for half their university fees, which was also a breach of the Award.

We are now involved again. This time with a member ecruited as the On-Site Sewerage Management Systems and Liquid Trade Waste Officer, on a two-year term contract. He contacted us because the two years was running out and no one was saying anything.

As term contracts are virtually prohibited in the industry, permitted only under strict conditions and regulated under clause 36 Term Contracts of the Award, and with Richmond Valley’s history, we found that the contract specified that the term contract was in accordance with this subclause “to perform the duties associated with an externally funded position where the length of the employment depends on the length of the funding”.

OSMS and Liquid Trade Waste are normal EHO/compliance functions everywhere, so this seemed odd, and the assertion there was external funding was suss. Unlike 2018, our initial questions trying to identify the “external” funder weren’t rejected out of hand by HR, in fact it was said “it looks to be incorrect as you have stated”. But then things slowed down.

We are now in dispute with Richmond Valley, with the IRC briefly dealing with the merits of the issue when it first was listed on 4 April. As so often happens, the Council retreated from their initial “external funding” assertion, saying it was a mistake by HR in the drafting of the letter of offer but they now say the term contract is appropriate “for the life of a specific task or project that has a definable work activity”. An approach as legitimate as calling trainees “scholars”.

All councils in the State regard OSMS as part of an EHO’s portfolio, and while this is a different provision of the award, it is also clearly wrong. It’s ongoing and continuous work. As to concerns about cost, there are more than 3000 OSMS in the local government area bringing in $200,000 in licensing fees, topped up by another $34,000 or so from liquid trade waste, plus pools and food shop licensing. This is clearly a continuing role with the Council receiving more in fees than the cost of providing the services.

The Commission adjourned until 28 April for the parties to confer and the Council to continue preparing a business case to make this a permanent position.

The reality is of course, if the Council wrongly placed the employee on a term contract, then they are already a continuing employee.