The NSW Coalition government wrecked it in 2016, the Labor government restored it on 30 November!

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Published: Friday, 08 December 2023 12:05

The Industrial Relations Amendment Bill 2023 was carried by both Houses of Parliament on 30 November. The Bill makes substantial changes to the current Industrial Relations Act 1996 but in a bold gesture, it is the restoration of an institution more than a century old – wrecked by the former Government - which is most significant.

It’s not the most important news for employees in local government, but when you consider that having an industrial tribunal which is accessible and user-friendly, as it had operated for more than a century, its restoration is a triumph for all of us.

You don’t have to understand how it all works, but as an employee you need to be confident that there are tribunals available for unions and their members to pursue improvements in pay and conditions of employment, or resist attacks on conditions of employment, or their wellbeing, or any of what seems a countless list of employment problems.

In 2015 and 2016, in a shady process denied by nearly everyone (including those we know were up to their eyeballs in it) the Government tore the Industrial Court and its judicial role from the Industrial Relations Commission - a combined employment tribunal seamlessly from its origin in the Industrial Relations Act in 1901. The judicial role of the Court was incorporated into the Supreme Court and was a process opposed universally by the union movement in the state and by employer organisations as well.

We broke the news in 2015 that the government, in a process of rationalising tribunals was eyeing off the IRC - housed in what was originally the magnificent sandstone Colonial Secretary’s building and the seat of colonial administration on the corner of Macquarie, Bridge and Phillips Streets, Sydney. The Government had fantasies about selling or leasing it off as a flash hotel - where none of us could afford to stay.

There was a degree of openness about some aspects of the process, like closing down the Wollongong and Newcastle court registries, but it was the split of the judicial role (the same level of the Supreme Court) that was most secretive. Shamefully so.

Since that change in 2016, the Labor Opposition had promised unions that it would restore the Commission to its former role enshrined in the 1996 Act, and the public sector unions (not us in local government) that they would abolish the dreaded wages cap imposed by the Coalition government which removed from the IRC their capacity to make awards for the Public Sector providing pay increases over the wages cap of 2.5%.

While tardy getting moving on it, the Minister for Industrial Relations, Sophie Cotsis, established a review panel of the highly respected Judge (and the final) President of the IRC Roger Boland, and Anna Booth, a former union official, Deputy President of the Fair Work Commission and who at the conclusion of the Panel’s reporting, took up the role of the Fair Work Ombudsman.

Consistent with recommendations from the Panel, the Act will re-establish the Industrial Relations Commission in Court session, requiring the appointment of three judicial members/judges and will return to the Industrial Court the Workers Compensation jurisdiction. And introduce what was apparently, for some, a revelation, a concept of “mutual-gains bargaining”. It’s really “interest-based bargaining”, as it has been called in local government for a couple of decades and is, without the fanfare of those titles, pretty much how we’ve always negotiated the State Award.

The Public Sector has desperately needed negotiation processes like those in local government, after twelve years of a hostile Government and bosses, and we wish them well.

The objects of the Act and the functions of the IRC will have some changes described as the “modernisation” of the Industrial Relations Act 1996, and other recommendations of the Panel, which will be handed to an Implementation Group for Industrial Reform which is currently being constituted, and where the Minister wants it to meet before the end of the year.

We will keep you in the loop as things develop in the second phase of reform, in which we also hope to be involved. The restored IRC, back to its former glory, will be an active tribunal of experienced practitioners where, apart from anything else, we can happily take the industrial disputes we have regularly in the industry, and where we can be confident of the exercise of its powers.

These significant changes were all done in a timeframe that dramatically demonstrates the capacity of governments to move fast when they need to. Minister for Industrial Relations, Sophie Cotsis, introduced the Industrial Relations Amendment Bill 2023 into the Legislative Assembly on Thursday 23 November (around 3:45pm to be precise), there are standard steps to follow and it had its First Reading, the Minister’s Second Reading speech, the Second Reading, it was Considered in Detail and then the Third Reading and passed that afternoon and evening.

It was introduced into the Legislative Council on Thursday 30 November and had its First Reading, Second Reading speech, Second Reading, was passed with amendments, its Third Reading and then Passed with Amendments it was returned to the Legislative Assembly which agreed with the amendments, and it passed through Parliament that day. That is faster than a speeding bullet.

And it was “assented to” by the NSW Governor on Tuesday 5 December and we await its proclamation into law.

This reinforces the joy of being part of the union movement in New South Wales as an affiliate of Unions NSW - thank you Mark Morey and Thomas Costa. Neither would it have happened without the courage and commitment of the Minister for Industrial Relations, Sophie Cotsis with her preparedness and stoicism pushing this through Cabinet. Thank you, Sophie.

Governments can move fast when they want to

That should be an inspiration to the Minister for Local Government, Ron Hoenig. The LG Minister was involved in the process as a member of the Legislative Assembly and is now responsible for ensuring that another of the recommendations of the Panel, the recission of section 340 of the Local Government Act 1993, can be dealt with expeditiously in the first session of Parliament next year.

Wouldn’t that be good. A reduced risk of corruption and intimidation of senior staff and general managers, and now it’s all in the hands of a Minister who was part of this, and can make things happen.

Next month

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Published: Thursday, 16 November 2023 13:32

Yes, the year is coming to an end next month will see our prestigious HR awards. There are two nominees mentioned in this issue who will be seriously considered by the Judges, but are there more?

We apologise for the irregularity of depaNews this year

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Published: Thursday, 16 November 2023 13:32

We’ve had a bit of a churn with Office Managers since Margaret’s retirement and this year that has meant depaNews has not been its normal monthly publication. We had issues with the June issue, and the September issue which we are very, very confident won’t happen again.

This is a picture of our new Office Manager Sue Burton, only three weeks in, Sue liked us as a candidate for the job because she found what we did and how we did it interesting. This is Sue’s first issue of depaNews, please welcome her next time you ring or email.

We stop Shoalhaven inserting mobile phone numbers into employees’ email signature blocks

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Published: Thursday, 16 November 2023 13:32

Shoalhaven provides their Call-Centre phone number only on email signature blocks and business cards. The Centre (and its eight staff) refers calls to our members at their desk, or automatically from their desk to their mobile phones without complainants having access to individual mobile phone numbers. The Centre records the calls as well, which is a very effective disincentive for all but the very worst complainants to be more civil and polite. It allows the Council to keep statistics on calls, good for checking customer service, duration of calls, unanswered calls.

For no good reason the Executive Management Team decided that would change but asserted it would enhance customer service – something never explained or supported. IT began the rollout simultaneously with advice to employees that if they had any questions, they should ask their manager. When the GM refused our request to stop the rollout pending consultation with employees (where there had been none) and the unions (enthusiastically aided and abetted by HR/P&C, of course), we filed a dispute - our second with Shoalhaven this year.

Commissioner Sloan in the IRC recommended that the Council stop the rollout and deal with the legitimate concerns that were being raised by depa and the two other unions. Some of our members had previously experienced harassment on their mobiles at other councils and found the whole process both unacceptable and inexplicable.

In the discussions recommended by the Commission, we were told that there had been no incident, nor complaint by a councillor, nor any trigger for this other than one member of the Executive “floating” the idea and everyone else thinking it made sense - they were the Council’s phones, the Council should be able to do whatever they wanted with them, was the view. A bit like landowners and developers arguing that it was their property and they could do whatever they wanted with it!

We argued about who the unions would need to meet with, rejected the idea that it be only HR (because they are never the decision-makers and were complicit in rejecting the request to stop the rollout) and either the GM or the EMT nominated the Director of Planning, probably because that’s where most of our members were. The Council had rejected the Commissioner’s recommendation but proposed four alternative options as a temporary solution which would give an employee the opportunity to retain the current arrangements, their desk phone, mobile or whatever.

And in-principle agreement was reached between the representatives of the three unions with the Director of Planning that we would accept the four arrangements temporarily offered as the permanent arrangement. It was stressed at the meeting this would be at individual’s aggression discretion, something not opposed by the Director, and not a peep from the mute HR/P&C reps.

The Director would put that to the next meeting of the EMT “as a good solution for both employees and the Council”. We even agreed on the wording that should be put and that we would vacate the report back listed in the Commission, requesting another week for things to settle. Sounds like a deal, doesn’t it.

EMT rejected that proposal coming from the person they had delegated to negotiate with the unions, coming back with a reduced number of options, and the insistence that the employee secure the agreement of their supervisor and their manager. Shoalhaven loves their employees having to grovel.

It’s not making much sense is it, but it does get even more compelling.

Back in the Commission we encouraged Commissioner Sloan to continue to conciliate (it is the primary responsibility under the Industrial Relations Act, after all) and he set the dispute to return in Parramatta, where we’d all need to attend, and that he expected a “decision-maker” for the Council to be in attendance.

That was sufficient for the Council to settle. Not just having to leave the security of Nowra where you are in charge, but having to be accountable before a member of the Commission you couldn’t ignore, or stand over, and where you might need to justify a decision that sounded like it was made by a group of stoners. They agreed it was the individual’s discretion to choose from three options, the third added option being continuing with the Call-Centre.

This is not just unbelievable, and a complete failure in good faith bargaining and reasonable behaviour, it’s so ludicrously illogical we shouldn’t have been surprised to discover later that the email system actually provides five options!

A failure to consult, a failure to provide a proper explanation, obstinate, illogical, nominating one of their own to negotiate with the unions and then betraying that person and rejecting the in-principle agreement is all pretty unimpressive behaviour for a crowd calling themselves the “Executive Management Team”.

Mid Coast salary system dispute arbitrated

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Published: Thursday, 16 November 2023 13:32

This is the dispute that earned MidCoast our prestigious Worst HR in Local Government Award in 2022, it continued in attempts at conciliation and a six-month trial and went into formal arbitration in the Industrial Relations Commission in Newcastle on 7 and 8 November.

The dispute, to which the three local government unions and the ETU have all been made parties, is over the imposition of a new salary system with different progression arrangements that disadvantage existing staff – moving the goalposts during the game.

This is accompanied by a legal argument to unpick the protections available in clause 8(xii) of the Award that allow employees to remain on their existing salary system if a new salary system disadvantages them.

The Council’s original argument picked up on the use of the word “structure” in clause 8(xii) and argued if they didn’t change the structure, no one could be disadvantaged. In response, because we have a shared interest in protecting the integrity of salary systems and how they can be changed only by avoiding disadvantage, LGNSW and the unions in the 2023 Award negotiations agreed to remove the word “structure” to remove that argument. They then found another argument, unpicking the wording out of the context of its intention, again.

Both sides have swapped settlement offers and the dispute resumes in the IRC in Parramatta on 13 December. At the conclusion of proceedings in Newcastle Commissioner Webster recommended that the parties try to reach agreement in the meantime.

OLG continues the paragraph 20 cover-up

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Published: Thursday, 16 November 2023 13:32

We all make mistakes, we teach our kids that it’s better to own up, apologise and fix the problem than to deny it. We try to live that ourselves but we’ve been banging our heads against the wall with the Office of Local Government since 5 February 2021 when their former CEO Tim Hurst got this paragraph wrong in findings against a former councillor on Wagga Wagga Council:

Hurst was wrong, and we’ve been pursuing that mistake ever since. We’ve identified misconduct from March 2013 that OLG ignored, they refused access to documents, and we’ve run two unsuccessful cases in NCAT looking for a remedy. But as a karmic reward (or extraordinary coincidence) when OLG prosecuted the former councillor in NCAT this year they included two examples of misconduct from 14 and 18 September 2020 and were able to have the miscreant banned from public office for five years.

Those two examples of misconduct predated Hurst’s paragraph 20.

We wondered whether OLG was throwing us a lifeline, or scoring an own goal, or it was a karmic reward but their own prosecution demonstrated Hurst got it wrong. It could also have been a mistake, but vigorously defended anyway.

We wrote to the current Executive Director, Local Government, DPIE Brett Whitworth on 19 June and here is our latest follow-up sent on 10 October 2023. No more follow-ups, we’re not even asking for the sacking of those who were complicit in the “mistake”, covering it up at the time, nor those who were complicit subsequently.

The Supreme Court beckons.

LGNSW stand-off with the Unions on senior staff transitional arrangements

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Published: Thursday, 16 November 2023 13:32

As a quick reminder, In October 2021 LGNSW resolved to no longer support “no reason” terminations and contracts and form a consensus with the three unions to press the Government to move the second layer of management back under the Award and provide access to unfair dismissals. The worst of the reactionaries rose up like barbarians at the gate but at a Special Conference of LGNSW on March 2022, their entreaties were rejected and the position reaffirmed.

Then, dawdle, dawdle, dawdle, as the Office of Local Government and/or a Minister or two treated this as a lower priority than we would have liked, there was a change of government this year and it’s now accepted that the legislative changes necessary to end the concept of “senior staff” for everyone but the GM, will happen early next year.

Section 340 of the Local Government Act 1993 needs to be deleted and this was the only recommendation specific to local government in the recent Boland/Booth Review of the Industrial Relations Act and the IRC. It will be accompanied by an amendment to the IR Act to lift the maximum remuneration level preventing access to the unfair dismissals jurisdiction. That’s all agreed between us.

The only remaining issue outstanding is the transitional arrangements for senior staff once the Act is changed.

Two ICAC Investigations, Mid-Western and then the former Canterbury noted it was unacceptable to continue “no reason” termination contracts because they were a corruption risk with councillors threatening GM’s (more often than you might think) that they needed to sack the Director of Planning (in particular) or the Council would sack them. And made recommendations to that effect.

We know the contracts are fundamentally unfair anyway, because there is no recourse for good and capable employees who are sacked for “no reason”. This regularly happens after local government elections when the politics of a Council can change, and good GM’s and people get sacked.

We met last with LGNSW on 26 September and were unable to bridge the gap between their position on the legality of the contracts, and the unions’ position that the contracts are shown to be unfair and a corruption risk, and the sooner we get rid of them the better. At the moment, having the ethical and moral higher ground isn’t sufficiently persuasive.

Given our historic capacity to reach agreement with the employers over the decades on many, many other difficult issues this shouldn’t be impossible, but an argument based solely on the law, ignores the herd of elephants in the room.

They say that the contracts were voluntarily and lawfully entered into (it’s a standard contract, there is no option) and should continue in operation until their termination. We think that argument is legally flawed anyway because if you wanted the job, the standard contract was the gun at your head, hardly freely entered into.

In an industry where the historic consensus needs to be consistent, it’s impossible to argue that contracts we have all agreed are unacceptable should continue any longer than is necessary.

How can the contracts be unacceptable, so we are removing them, but simultaneously acceptable enough legally that we continue the current ones?

We’ll meet again, we have time on our side with the legislative changes looking like early next year, but the LGNSW view is like Bunnings continuing to sell Round up, when everyone knows it’s a killer. The argument that it is lawful - like slavery once was - doesn’t cut it.

ICAC Operation Galley nails three notorious crooks

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Published: Friday, 01 September 2023 14:58

The ICAC on 30 August delivered the heads of three notorious councillors on a silver plate, with findings of “serious corrupt conduct,” and recommendations to the Director of Public Prosecutions to consider criminal charges that could see the miscreants jailed.

There could be no greater relief nor celebration for a succession of previous Directors of Planning at Georges River and the former Hurstville, current senior staff and former general managers and any unfortunate planner who found themselves on the wrong side of these deeply self-interested, dishonest and corrupt boofheads. This notorious threesome had poisoned confidence in development, and had been on the ICAC’s radar for more than a decade.

Chinese developers (one also a real estate agent) made payments to cover the councillors’ travel expenses, airfares, meals and luxury transfers on trips to China, some of which were known as “boys’ weekends,” where their hosts provided sex workers as well. The Commission has recommended that the DPP also consider charges against those developers.

ICAC found the three former councillors had engaged in serious corrupt conduct when they accepted trips to China, and tens of thousands of dollars, in return for supporting two large apartment developments in Hurstville. They were former Hurstville and Georges River councillors Vince Badalati (an ALP councillor), Con Hindi (a Liberal councillor, short for Constantine, and not Con Man, or Convict - yet) and a former Hurstville councillor Philip Ransom. The ICAC also found Hindi’s wife Mireille, gave false and misleading evidence.

The investigation found Badalati and Ransom were frequent visitors to China and Hong Kong between 2007 and 2018, a history so blatant that it’s hard to understand how it continued so long.

Hindi is no stranger to depaNews. As a councillor on the former Hurstville Council he had bullied and harassed planning staff and a succession of Directors of Planning, and on one occasion, when he objected to a report from the Director of Planning at the time to the Council recommending against what were claimed to be additions to a property owned by Hindi, but were essentially a demolition and rebuild, took defamation action against the Director.

It rolled on for some time, it was intended to intimidate and bully and but the vexatious defamation action was unsustainable. Hindi agreed to discontinue the claim, agreed not to commence any action arising out of the publication and provided a letter to the Director confirming with the withdrawal of all the allegations made against him, and tail firmly between his legs, concluded the letter with “I unreservedly withdraw any allegation that by publishing the report you defamed me or otherwise damaged my reputation.”

... and Hindi paid the costs.

Operation Galley found Hindi liked to keep it in the family. Amongst a variety of failures to disclose pecuniary interests, Hindi had failed to disclose his pecuniary interest in one of the sites through his wife’s interest in the development. Mireille Hindi, another real estate agent, was up for $500,000 commission from the sale of the $35 million site. The ICAC found that she had also given misleading evidence - not just implausible but “not capable of belief”- and had attempted to hide her involvement and her and her husband’s conflicts of interest by identifying her son on the Buyers Agency Agreement. She said it was a mistake, the ICAC disagreed and said her response was “fanciful”.

The ICAC found neither were credible witnesses, lied on several occasions, Hindi was “argumentative and rude”, much of his evidence was “not merely improbable but plainly nonsense”, and he “frequently made speeches that had little to do with the questions asked”.

He must have thought he was still standing on the floor of the Council trying to browbeat planners, he’d been doing that for years.

In June 2022 we published “What a refreshing change. A crook confesses at ICAC” after Badalati had given evidence to the Commission. Hurstville and Kogarah councils had merged to create Georges River in May 2016. They brought two high profile major players together - one Liberal, Hindi, and one ALP, Badalati - happy to help developers by overriding planning proposals from Council staff, and in doing so, they created an environment hostile to staff, particularly senior staff.

This explains why Georges River spent over $200,000 in 2019/20 on code of conduct complaints, more than $2.5 million to the date of that issue (22 June 2022) on legal costs with Operation Galley then into its third year of investigation, and another one $1.2 million budgeted 2022/2023 in anticipation of continuing costs.

ICAC investigations take far too long and need better resourcing. They can be slow and grinding affairs, but as the first witness, former Mayor Badalati confessed that on two occasions a developer had provided him with a bag of cash, once containing $70,000 and on the second occasion, $100,000. And, just to disprove the old maxim that there’s honour among thieves, he confessed that Hindi was there at the time and he received the same payments!

Badalati had taken defamation action against the Herald in 2019 when they published that he had accepted flights and accommodation from Chinese developers, and claimed he had paid for those himself. It was settled when the Herald paid him $100,000 in damages and legal costs, and published an apology. But while he was clearing his conscience and trying to balance the interests of his family watching this all rollout, he confessed that the trips had been paid for by the same developer who had given him $170,000. He agreed this was fraud.

Hindi also had taken defamation action against the Herald and received $65,000 in damages and his costs. More fraud.

The developer referred to them both as “Fat” and “Middle East”, accurate nicknames for Badalati and Hindi respectively from a developer who obviously thought “Dumb and Dumber” was already taken.

The photoshopped image we used at the start of this article was also used in the June 2022 issue, and while we love having fun with photoshopping, we’d clearly underestimated with those piles of $100 notes just how much cash this corrupt threesome was sharing.

But the ICAC found images on the phone of a developer that provide a proper perspective. We will spare you the images of the sex workers and the two daggy old white men, on a “boys’ weekend”, but how about this new take on money-laundering:

There are 11 recommendations to try to better manage corruption risks in the relationship between councillors and staff but none better than keeping councillors right out of any operational issues, planning or otherwise. And ensuring that a councillor’s role is limited to the development of planning instruments, by professional staff, who are not being bullied and harassed by them.

The report also notes on p159 that “The Keller Reviewer review on councillor conduct accountability in NSW recommended mandatory training for Councillors. The Commission supports education that will improve Council governance and support ethical decision-making.”

The Keller Review made more than 40 recommendations that were embraced by a previous Minister for Local Government - all but the recommendation for the establishment of a specific tribunal. It’s important now for the current Minister, the Hon Ron Hoenig, to continue that commitment and move on it as a matter of priority.

There are two other things for the new Minister to move on as a matter of priority.

The first is the undeniable need for significant improvements in the funding of the Office of Local Government to speed up investigations and conduct them properly (although it is unlikely even OLG at their worst wouldn’t have found here “the absence of any prior offending... and the lack of previous incidents of misconduct”), to be available and able to intervene in councils and straighten out behavioural issues before they get out of control and become a reliable and authoritative regulator.

The Minister was less than enthusiastic about supporting the additional funding being sought to do those things in the recent meeting of the Parliamentary Accounts Committee, but the OLG will continue to be an ineffective shell in the absence of funding to allow a flush of new people to replace those on the way out.

And second, the industry consensus on managing corruption risk by returning managerial positions which are now “senior staff” to be covered by the award and relevant Enterprise Agreements, and access to unfair dismissal in the Industrial Relations Commission.  “No reason” termination has been specifically identified as unacceptable in two previous investigations (into Mid-Western and the former Canterbury Council) and making these employment changes will reduce the practice of councillors trying to intimidate GM’s to sack the Director of Planning, or the Council will sack them - something that occurs far too frequently.

What’s the fuss? It’s only a bloody consultative committee

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Published: Tuesday, 01 August 2023 11:49

No one should be surprised that an organisation like depa, focused on fairness and justice, has embraced the Yes vote for the impending referendum.

In 1991, as part of a national agenda on award restructuring, we were obliged to set up consultative committees at each Council when we made the Local Government State Award. lt seemed a bold step, particularly for an industry which at that time wasn’t very consultative, nor respectful of the contribution that its employees could make to how things could work better.

Some of the old Town and Shire Clerks (as they were called prior to the 1993 Act), attacked it as inappropriate, the death of their managerial prerogative, an unwanted obligation to communicate with their workforce when they believed they had nothing to offer.

But it wasn’t to be a decision-making body. It could only make recommendations. These people were uninformed and easily spooked. Now, a bit over 30 years later, it still operates that way.

How did we ever do without it? How could opening communication and the sharing of opinions and ideas with workers historically denied access to management for so long, not be a logical step.

Challenging for some it may have been, but it was a great achievement. We still believe it critical to be represented on that committee in each Council.

The uninformed got it wrong in 1991, they can’t get this wrong as well.

The question itself is innocuous:

“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”

The Voice will make recommendations to Government, it has no other power. It’s only advisory, the Government still makes the decisions. The depa Committee of Management voted unanimously for us to support the Yes campaign - one member observed they were “proud to be part of an organisation that has the courage to do what is obviously the right thing”.

How could we do anything else?

And we have First Nations members who deserve our support. Let’s not disappoint them.

NCAT disqualifies former Wagga Wagga councillor from holding civic office

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Published: Monday, 26 June 2023 12:29

There’s a lot of history in this for us, both in relation to the former councillor, and the Office of Local Government.

On 19 June, NCAT decided to disqualify former Councillor Funnell from holding civic office for two years. OLG made the application, we had attempted to intervene in support of the OLG action, which they opposed - something they seem duty-bound to do any time we raise anything.

It’s good to see a serial pest finally disqualified but it is reasonable to wonder why the prosecution was limited to two instances of misconduct when OLG would have had at least 20 to choose from, and why they would propose only a two year penalty, meaning he couldn’t stand for election in the next local government elections, when the multitude and frequency of complaints would warrant longer. And he had indicated he wasn’t interested in standing at the next election anyway, and didn’t contest the penalty...

But, there is more to this. The two examples of misconduct were in 2020, and where Tim Hurst, former director of OLG had famously said in an order about the same person that there had not been “any prior offending or post event conduct in the past two years and the lack of previous incidents of misconduct”.  Really?

Here is a letter we sent to the current Executive Director, Local Government, DPIE, Brett Whitworth, on 19 June, with some important questions.

We will publish a full report in our July issue.