Transparency vs Confidentiality - a tale of two cities

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Published: Thursday, 26 November 2020 12:49

It’s one thing to be disappointed about Sutherland when the curtains were pulled, the blinds were drawn and the screen of confidentiality was erected by the CEO so that no one knew anything about what was going on, what complaints had been made and by whom (not even in the IRC) when there was already a transparent and quick solution available, but what do other councils do?

In May a member of ours was abused on the Facebook page of the Wagga Wagga Daily Advertiser by a councillor. No stranger to Code of Conduct complaints, which he regarded as a badge of honour, but at Wagga Wagga a proactive GM, supportive of the staff and good governance acted immediately to have the councillor delete the posting and then, after complaints from depa, the employee concerned and others, to immediately contract a conduct reviewer to conduct the Code of Conduct investigation.

The Code itself requires a degree of confidentiality about investigations to ensure an investigator can have confidence that there has not been collusion between witnesses but at Wagga Wagga we were not only advised by the GM that the investigation process had begun, but were contacted in writing by the conduct reviewer who kept us advised of the process, within those confidential guidelines, so that we knew it was being properly managed and the complaint would not simply disappear or be ignored.

And when it was concluded, we received a letter from the conduct reviewer identifying the recommendations, which included a censure of the councillor and reference of the complaint to the Office of Local Government, so we understood the process had been conducted and its result. The councillor was censured by the Council consistent with the recommendation of the conduct reviewer and the entire complaint has been forwarded to the Office of Local Government for further action.

Wow, what a significantly different approach to Sutherland - one where employees can be comfortable and confident about the process because of the transparency. Confidentiality is important in an investigation but the Code of Conduct should not be managed by a Council behind closed doors. Not at Wagga Wagga do they do the “Pay no attention to that man behind the curtain”, thing.

There is more confidence in a process that is transparent.

If you Google transparent versus confidential you’ll see much information about the delicate line between the two and where it should be drawn. Confidentiality is not meant to be an excuse to hide the process.

What’s Lyall been doing?

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Published: Thursday, 26 November 2020 12:49

We’ve been fascinated with Lyall Dix since the 1980s when, as an officer in the Department of Local Government, he was the prime mover setting up opportunities for councils in the old Local Government Act to contract work out. And then to generally start developing proposals for private certification.

Lyall has had more penalties imposed by the BPB than any other certifier, sufficient that he’ll never practise again, and he still holds the record for the biggest fine - $50,000 in 2012. But he continues to operate in a business called the Dix Gardner Group that does regularly find itself in the news for the sorts of things that had the BPB stripping Lyall of his accreditation.

On 18 October the Land and Environment Court ruled that a half-built luxury house at Seaforth on the Middle Harbour hadn’t been constructed according to its development consents, was encroaching on a neighbour’s property and was in need of emergency works to make it structurally stable. And as the Herald observes,

”To top it off, a sandstone block wall was erected on foreshore land that belonged to Transport for NSW, the court found”.

“Council told the court that there were two unauthorised balconies and an unauthorised staircase, a lift shaft in the wrong location and openings in the master bedroom and ground floor that were never approved.

Excavation and geotechnical piles were being installed under the house that were never included in the plans, the Council said. Those activities gave neighbours the impression an illegal third story was being built.

Council found the awning, staircase, terrace and pool were all encroaching onto a neighbour’s property and there was a question as to “how lawful access to the front door will be gained”.

The unlawful works were carried out under the watch of notorious private certifier Stanly Spyrou of the Dix Gardner Group, who is currently serving a five-year ban for allowing people to move into to other buildings posing a “hazard” to occupants.”

The shocked owner now needs a new development application with Northern Beaches Council.

How much longer will the NSW Government allow people stripped of their accreditation by the BPB/Fair Trading to continue to work running a business employing others?

Resourcing the NSW Building Commissioner

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Published: Thursday, 26 November 2020 12:49

Back in February a flurry of media releases announced that the Building Commissioner would have a staff of 75. It was announced that NSW Building Commissioner David Chandler “is looking for architects, engineers, site managers, certifiers and other industry experts to help weed out bad practice in the apartment construction industry.” This is a picture taken after the Premier Gladys  Berejiklian had announced that unlike her own personal behaviour, she believed in builders and developers applying the rules assiduously. Clearly the Building Commissioner thought that hilarious and even the current Premier is in on the joke.

Further tight regulations were promised but it’s hard to find out what’s happened about the recruitment of the 60 - and anything else about the intended 75 members of staff.

If you go to the Building Commissioner’s site you can watch podcasts but the closest thing you can find to an employee is Reg, who has his own blog “What would Reg say”.

Reg is the Building Commissioner’s “Mascot and Oracle”.  https://www.nsw.gov.au/nsw-government/projects-and-initiatives/building-commissioner/what-would-reg-say .

Reg has quite a lot to say but he doesn’t say the most important lesson that every investigation into building standards has established - namely that if you want a reliable job done by someone not paid for by the developer, you go to a Council. Even though he says “Don’t associate with risky players. Consider the company you keep. We’ll be using powerful matching technologies”, as advice to certifiers, at some stage the Building Commissioner needs to come to grips with the fact that the only certifiers without a conflict of interest are those employed by councils.

And if you happen to know anyone who’s taken a job with the Building Commissioner, please let us know.

Speaking of building, the proposed Design and Building Practitioners Regulation 2020 is now out for consultation.

Here is a communications package for those of you who are interested.

Who has the worst HR in local government?

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Published: Thursday, 26 November 2020 12:49

Our December issue and our prestigious awards are enthusiastically anticipated by the industry (and sometimes dreaded by those responsible for unacceptable HR practices) and the December issue will, as usual, publish the 2020 Awards.

And our usual end of year good wishes, the last family pic with Santa (that’s a relief) and news about our closure over Xmas/New Year.

It will also provide a proper farewell to Margaret Bayliss who has been our highly compatible and effective Office Manager now for close to seven years. Margaret has decided to retire at the end of the year. And we can introduce you to our new Office Manager.  

Just as well we can play a long game

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Published: Tuesday, 20 October 2020 13:42

We began the year with this heading and historic graphic from the May 1987 issue of our dear old tabloid Health Surveyors’ News, just to remind everyone that we’ve been fighting off the inherent flaws of term contracts and the capacity of tyrants to terminate employees doing a good job for almost a quarter of century. A worthy battle by any measure.

Now that the jurisdictional issue in the Supreme Court has been resolved we can focus our attention on getting the employers and the unions together (with an invitation to OLG) to review what happened in the public sector in 2014 and 2015 that has resulted in the transitioning of senior staff into continuing employment, and whether that arrangement can be now flowed into local government.

It’s the light at the end of the tunnel...

depa v Narrabri Shire Council in historic Supreme Court victory

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Published: Tuesday, 20 October 2020 13:42

Well, it doesn’t get much better than this. It’s one thing to be part of a Combined Unions High Court triumph back in December 2018 but it’s another thing entirely to run and win a case on our own behalf - in defence of a member unfairly sacked under the Standard Contract, by a GM who is at the same time the President of Local Government Managers - stopping the tyrants who unfairly sack senior staff and want their handiwork to remain unexamined.

On 19 October, Associate Justice Harrison in the NSW Supreme Court handed down her Judgment in a case where Narrabri Council/GM had argued that the Supreme Court did not have jurisdiction to deal with the sacking of an employee on the senior staff standard contract. This was a response to action taken by depa in support of Tony Meppem, a well-known and well-respected Narrabri local, who worked most of his life at the Council.

Section 106 Unfair Contracts of the Industrial Relations Act 1996 had formerly been administered under the Industrial Relations Commission until the Government in 2016 sliced off their judicial role and added it to the Supreme Court. This was almost universally condemned and opposed - apart from the wanton dismantling of Australia’s longest-operating industrial jurisdiction, the Supreme Court is less user-friendly, slower, more expensive and significantly, a costs jurisdiction where the loser invariably pays.

The Judgement yesterday is 25 pages, but it’s the key orders on the first page that contain the great news:

Narrabri Shire Council was the defendant, we were the plaintiff and Narrabri has been ordered to pay our costs - meaning that Narrabri Shire, with an operational deficit for the last five years and a projected deficit this the year of $1.8 million will need to stump up something like $80,000 or $90,000 in costs. All from a case that should not have been run, and as the matter continues now in conciliation, the Council’s costs will continue. A quick settlement will better manage their continuing costs. (Gratuitous advice, Stewart)

The capricious waste of Council money on this case is consistent with the shambles of both Meppem’s appointment and termination. He was forced to sign the standard well before the position was resolved to be Senior Staff by the Council under section 332(1) (not just inappropriate but a matter of significant concern to the OLG as the regulator) and the termination, where the GM failed in his obligations under section 337 to first consult “with the Council” before any dismissal in failing to contact all councillors as required under the Act. This failing was reinforced in a subsequent specific and targeted circular from OLG to the industry and, as we understand it from local informants, the GM has been given a bit of a kicking (metaphorically) by OLG about both the appointment and dismissal processes. ‘Tis but a scratch, clearly.

The judgement yesterday is good news for those of us who have contested and tried to prevent the introduction of term contracts -  for us, as far back as 1987. It’s also good news for the other unions; current senior staff now comforted that there is a jurisdiction to test the unfairness of terminations; future senior staff who can now feel more comfortable in their careers and trajectory to the top; those members of Local Government Professionals/Managers who don’t support the LGP President Todd in his defence of unfair practices; the Office of Local Government, the Minister for Local Government and the Government now having the confirmation and certainty of a jurisdiction under section 106 in the Supreme Court; for those in the employers’ organisation, LGNSW, who support fairness in the employment of senior staff; and local government employees generally - because you never want your boss to feel that their employment is tenuous or high risk, because it distorts the way they want to employ everyone else.

The judgement is bad news for Narrabri GM Stewart Todd, who was responsible for taking the jurisdictional argument, Local Government Professionals President Todd because more members of LGP will be pleased about this result than if he had won, the community of Narrabri who have to pay for the folly, and other tyrants who support unfair employment practices across the industry.

Some great news to ward off the COVID blues.

“Self-inflicted but I’ve had worse”

Next month

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Published: Tuesday, 20 October 2020 13:42

• Councillor behaving badly at Sutherland and what we’re doing about bad behaviour

• Two different councils and two different approaches to transparency in Code of Conduct investigations of councillors

• Lyall Dix’s company in trouble again over Clontarf fiasco

• Update on the Building Commissioner/Commission

• Jeeze, is that the time? The year is nearly over

It’s the COVIDiots’ fault

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Published: Wednesday, 05 August 2020 14:58

If ever we needed a demonstration of the capacity of us humans to be stupid, selfish, ignorant and totally irresponsible, the behaviour of all those taking advantage of the relaxation of the isolation requirements, after the worst of what we now know to be the first wave, are demonstrating it now.

In New South Wales it was the Ruby Princess, simple failures of process releasing COVID-19 holidaymakers into an unsuspecting state to pass on this easily transmitted virus; in Victoria a government not normally known for its fondness for privatisation contracts out the security of quarantined international travellers returning to Melbourne to private security companies, who subcontract it out to others and away it goes, some kind of sex holiday for both those in quarantine and those meant to be protecting them and then out they go back into the community; nursing homes, run for profit rather than care with inadequate protection and staffing, and idiots ignoring the fundamental rules of hand washing, the 1.5 metre rule in social distancing and the protection of our own 4 m².

Let’s not mention the drunks, the parties, the self-confidence and indestructability of the young, the 25% of Melbourne’s COVID positive people who weren’t at home in quarantine as they were required to be on the two visits in one day, and the two surgically enhanced (but clearly not intellectually enhanced) young Queensland women and their litany of offences and ignorance because it’s all so distressing to see this level of social and community irresponsibility. Open up Manus! Put your mask on idiot, or keep out of Bunnings.

Through all of this, councils in New South Wales have been remarkably prudent, setting up remote working arrangements, embracing Teams and Zoom (as we all have) and still getting the work done and keeping the essential services provided by councils going during this awful time. Facetime inspections, providing their public and environmental professionals’ services to the communities and, let’s face it, anyone who is an EHO has the perfect opportunity to demonstrate those skills and qualifications in a pandemic no one could possibly contemplate. We know people in essential services who can’t believe their luck that, after all that training, at last there is an opportunity to be working in a real public health emergency.

Sure, councils like Clarence Valley and Sutherland were slow getting people working remotely and Sutherland responded badly to encouragement from the unions to get it happening quicker to provide proper protection for staff - famously responding to an email from depa encouraging the speedier implementation of 50:50 in the office and other arrangements, the CEO’s immediate response was to grab our poor delegate, who didn’t even know the email had been sent, and march him up the street to show him the queues outside Centrelink. Take that Comrade, apparently the CEO was trying to avoid that happening, not threatening that you were lucky not to be on the queue...

Nearly everyone moved quickly into safer working arrangements, the Splinter Award provided a comforting safety net and, with Stage 4 restrictions in Victoria, boundaries of other states closed and the risks from developing new clusters and hotspots in NSW, and particularly Sydney, we are far from a happy ending to this public health calamity.

If there is a positive, councils now have a better understanding of the benefits and productivity available from employees working from home. Real evidence that that will allow evidence-based decision-making next time employees ask to continue to work from home, or to start working from home. That will make the old managers/reactionaries look for new excuses, or go with the evidence...

But, while everyone’s social distancing and acknowledging the 1.5 metres and the 4 m², things weren’t quite going that well at Bayside...

Things weren't quite going that well at Bayside

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Published: Wednesday, 05 August 2020 14:58

Bayside started out looking like it knew what it was doing. People were working from home, a triage team was established in their WHS area, they published regular newsletters keeping everyone in the loop but someone, and no one is really owning up to who that was, decided and published on 29 June a return to work message to all staff headed “Congratulations! We made it to the other side...” Very premature at the time, and even more premature as we watch the second wave role on.

This was their response to the 1 July easing of restrictions in NSW but out at Bayside they got very excited about “how proud we are of our response to COVID-19!”, so without further ado, or even another week or two or three to be sure we were out the other side, they decided that all working from home arrangements and approvals would expire the following day. You’d have to reply under new rules.

They prepared a new approach to working from home that would see anyone with a leaseback car paying more for it because they believed that more days at home really meant more private use. It was demonstrable that we had members working from home who use their cars for work purposes on inspections over that period of time but clearly someone thought if you’re working from home, you’re driving your car around the place for private purposes, just generally skiving off.

The document itself, with proposed changes for RDOs was drafted as if it were hostile to people continuing to work remotely. No one understands why.

But it was the preparation of the workplace for the return of staff where the proverbial hit the fan. The triage team, led by the looked-up-to Ben Thompson, Manager Business Improvement and Organisational Development, was absolutely convinced that the 1.5 metre requirements didn’t apply if you were seated back-to-back. So they set about measuring all the workspaces to provide appropriate social distancing.

But, many of the workstations didn’t, so sneeze screens were erected and we then entered into what became an interminable argument about the 1.5 metres with the GM coming back and saying she had never said it didn’t apply if people were sitting back-to-back. Of course she hadn’t, but her people had and were continuing to do so..

That created untold anxiety amongst staff busy adhering to social distancing requirements while they were working remotely and in their normal lives, finding that they are being required to return to work, with very short notice, with social distancing requirements not being respected.

Our members were the most vigilant about this, and that resulted in an email from Ben Thompson, the Manager BI&OD on 29 June under the heading Floor Plans for seating availability for return to work safe and in response to concerns members had raised about desks facing in opposite directions, said this:

“This will be fine for use. Where desks are facing each other we are installing sneeze shields but there is no requirement when desks are facing opposite directions.

In fact it is actually safer than desks side-by-side as breathing/sneezes are in opposite directions.”

Uh oh, a real FFS moment and a quotable quote for posterity.

It was all well and good for the GM to be saying it wasn’t her fault, that she’d never said that, but it was being said and was being said by the people she had made responsible for work, health and safety in the return to work.

We even bet the GM that she couldn’t provide us with evidence from any reputable source, like NSW Health, that this was right and Meredith, you couldn’t do that, so lunch really is on you. Isn’t it.

But more importantly, when eventually the GM confirmed to us that the following week the Council would publish a clarification , ”just to clarify, no matter which direction your desk or the desks around you face, you must always observe the 1.5 m rule. Keeping that space between you and others is an important part of staying safe”, and they did, there really needed to be an acknowledgement of the conflicting advice that had both horrified and confused indoor staff.

And, as we try to teach our kids, “if you make a mistake apologise for it, and it’s over” we said “decisive action is required to clear the air, please”.

We put that to the GM, but still there has been no acknowledgement of the dismay and anxiety that the confusing and inaccurate information created.

We’ve acknowledged it now but it does need to be acknowledged by those in charge at Bayside. Over to you again.

Finally, and despite publishing that the WH&S team is there to help and even saying “don’t be afraid to contact the team. No issue is too big or too small!”, when our members did so because there were still problems with spacing of desks, the Manager BI&OD responded “rather than sit in a desk being concerned, I’m not sure why the employees themselves or the leadership group are not moving the employee to another desk? If we were at full capacity I would understand the lack of action, but there are free desks every day.”

The best advice the Manager has given, don’t just sit there being concerned, fix it yourself.

NSW Industrial Relations Commission makes the 2020 Local Government State Award

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Published: Monday, 29 June 2020 12:14

Commissioner Murphy of the NSW IRC made the 2020 State Award following a brief hearing on Friday afternoon, 26 June. The Award was made by consent of the parties, meaning that it was an agreed document reviewed and accepted by the IRC as satisfying a range of legislative obligations.

In a climate where unemployment levels are spiralling and people are lucky to have jobs; public sector employees generally are struggling for a pay rise; where the NSW Government is trying to impose a pay freeze for their public sector employees (currently being arbitrated by the Full Bench of the IRC); where the combination this year of drought, floods, COVID-19 and an economic recession made things looked decidedly grim, Local Government NSW and the three local government unions were able to reach agreement, not just on pay increases for the next three years, but visionary and far-reaching changes to the Award for the benefit of both councils and employees.

So concerning was the state of the economy and the surrounding glum economic circumstances that the employers and the unions acknowledged the obligations of the IRC to consider “the public interest … the state of the economy of New South Wales and the likely effect of its decisions on that economy” and we both separately sought professional economic advice to present to the IRC, in a clear and cogent way, that the economic benefits of pay increases for local government employees and the impact of that money flowing into regional communities supported the prudent and sacrificial 1.5% increase from the first pay period after 1 July 2020 and the 2% increases due in July 2021 and 2022. (Agreed in the context of expected increases in SGC those years.)

The three unions jointly funded a report from Equity Economics, an independent group of economists that you can see here, and LGNSW provided advice from their Chief Economist. Both reports and the Commissioner’s significant involvement in negotiations over the past six or so months were sufficient to convince Commissioner Murphy that he could proceed to make the Award on Friday.

Unlike 2014 and 2017, where the Award negotiations were difficult and adversarial (substantially reflecting internal issues in LGNSW with CEO musical chairs) this time was different. In a process starting with logs of claims from each party back in August and with the assistance of the IRC when necessary, 34 changes were agreed and the Commission had assisted the parties to agree to a number of things including issuing directions the Council is to furnish information on their compliance with award obligations on training plans and salary progression.

And of course our critical triumph, the new clause 9 requiring at 9(i) the employer to “provide adequate staff and other resources to enable employees to carry out their duties and functions over the course of working hours that are not unreasonable and support the implementation of the employer’s community strategic plan and operational plan”.

This has created both a new right and a new obligation in the industry: the right for employees to have proper resources and to be able to do the job in reasonable working hours, and an obligation on employers to provide that. Potentially this clause can be used everywhere.

Here is the recommendation from Commissioner Murphy 16 March 2020 when we had a formal hearing of the claim.

We’ve always been obsessed with disciplinary procedures and investigations and the Award will provide more assistance to councils on when they should, or shouldn’t, conduct an investigation. Driven by poor management and HR decisions at Sutherland and Canada Bay, clause 36C Workplace Investigations at (v) adds two more considerations of when investigations shouldn’t proceed:

• whether there have been concerns, threats are allegations made against the employee previously by any complainant, and
• whether the complaint itself has been copied to others, thereby indicating that any allegation about work performance or conduct may be vexatious, punitive or harassment.

This is how Award negotiations should work - see a problem in the life of one Award, fix it in the next one. Out of two bad decisions comes better protection.

Plus, annual and long service leave can be taken by agreement with the Council at half pay or double pay, annual leave can be paid out, there is a new focus recognising the prevalence of bullying in local government, better protections on whether your leaseback car is a condition of employment, focus on term contracts requiring each term contract to identify how it can be a term contract under the requirements of the Award and much, much more.

The Award will operate from 1 July (with pay increases from the first pay period after 1 July each year) and will be on our website that day.