And we’re in dispute with another Council too

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Published: Monday, 25 March 2019 11:46

We’ll keep this one confidential in this issue but we filed a dispute with another Council over unacceptable behaviour by the GM. Our involvement quickly had the Council organise an external investigator to conduct an investigation before we were in the Commission on 11 March and on that day the Council agreed to six guidelines we proposed to keep the GM away from our members involved while the investigation continued.

But, notwithstanding that clear and unequivocal agreement, the GM ignored it on three occasions. We pursued it after each one and warned that if he continued to breach the agreement we made we would return to the Commission to pursue a recommendation or direction that he comply with the agreement.

Which we did on 20 March. The Commission agreed that while the GM may not agree with the agreement, and claimed he would not have agreed to it had he been in the Commission, that it made sense while the investigation was continuing for the GM to keep away and stop wandering through the workplace until the investigator’s report was available. Commissioner Sloan so recommended and the GM agreed.

We’ll keep you in the loop as this develops.

Super dispute in the Commission as well

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Published: Monday, 25 March 2019 11:46

We knew that our dispute filed more than a year ago about the degree of compliance in the industry with requirements in the LGS trust deed for the defined benefit schemes to include a value for private use of a motor vehicle in the concept of superable salary, was going to take a long time to resolve. Now there’s an extremely boring and unenticing opening sentence for people who aren’t in the defined benefit scheme, but unfortunately this has been an issue where members of those schemes haven’t been vigilant individually in ensuring that they received their entitlements, so it was even a bit incomprehensible for those affected.

This has required LGS to have councils focus on the superable salary calculation for 2018 and in the last weeks has pursued those councils which have included a component for private use of the motor vehicle in the superable salary for 2018, to see if they’re done similarly in previous years, and those councils where there was a question mark about how they had done it, to review how they had done it in recent years as well.

The dispute had been listed for a report in the Commission on 14 March and will be listed again to see what has developed from those LGS approaches to councils on 30 May.

NSW election means we’ll be bashing our heads against the wall with the Coalition Government

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Published: Monday, 25 March 2019 11:46

No-one knows yet whether the Liberal/National Coalition will govern in its own right or require the cooperation of independents, but we can only hope that whatever falls into place over the next week or two provides some hope for proper engagement about protecting senior staff against unfair treatment. Certainly better than the last few years.

We need a Local Government Minister prepared to listen and do the right thing. Senior staff employed by the NSW Government have been transitioned from term appointments to continuing permanent employment over the past five years, but our pressure on the Office of Local Government hasn’t swayed the Government to do similarly. There is absolutely no doubt that senior staff in local government deal with more political sackings and political pressure than their counterparts employed by the State, and they need better protection.

We love a challenge, and we are committed to getting it moving as soon as possible. This time, there seems to be some sympathy from LGNSW to prevent the unfair treatment that we’ve seen at a number of councils, Mid-Western and Narrabri for two, where our members have been sacked unfairly.

At Narrabri it looks to us like the GM breached the provisions of the standard contract in six areas prior to terminating it. Shameful, really. He has acknowledged one breach which he will remedy but refuses to respond, “the Council makes no admission”,  on the other five clauses he has breached, refusing to talk to us and respond to our correspondence. Hardly inspirational leadership.

We still hate term contracts for senior staff

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Published: Thursday, 28 February 2019 15:03

The scales of justice symbolise the importance of a balance between opponents in courts - the process is meant to be fair and even-handed.

But the least fair and least even-handed employment arrangements in local government operate under the standard contract legislatively enforced on councils to employ their general manager and senior staff.

This isn’t just an issue affecting a GM and directors, because if there’s no fairness available in their employment relationships, what hope is there to expect they behave fairly to their own staff? While the Award has fairly strict requirements about disciplinary processes and performance management, Award employees also have the safety net of access to the Industrial Relations Commission.

There is a long and sad history of the introduction of term contracts in councils. Initially seized upon as a way of getting rid of people easily without having to be fair or reasonable, the Institute of Municipal Management (the precursor to the Local Government Managers/Local Government Professionals, or whatever they’re called these days) encouraged the rot with a discussion paper arguing it separated out executive staff from the rest. And then they developed their own model contract, a flawed and contradictory document that earned them a special award from us way, way back, in August 1995.

The 1993 Local Government Act introduced the requirement for senior staff to be employed on a fixed term. We fought vigorously at the time, we argued it constantly and in the Five Year Review of the Act, the Minister for Local Government at the time, the much-loved Ernie Page, agreed with our concerns. In a letter to those who had participated in the review dated 6 October 1998 he said this:

It was submitted as part of the review that in some cases over the past five years, councils have used the fixed-term nature of employment contracts for senior staff as a tool for terminating individual staff, rather than using a more appropriate performance management system. This gives rise to concerns about the ability of council staff to maintain their independence and give professional opinions about Council matters as the end of their fixed-term draws nearer.

It is therefore recommended that senior staff should continue to be employed on contract, but that the nature of those contracts should be open-ended rather than fixed.

Sadly that recommendation to Cabinet was defeated, senior staff remain employed on term contracts and, as vividly demonstrated last week in concluding what had been a long-running farce at Parramatta City, Kunc J in the Supreme Court emphasised:

“the Council has a right to terminate without cause by giving the written notice or by making the termination payment under subclause 11.3... In any event, clause 10.3.5 again provides a complete answer because under clause 10.3.5 the Council can terminate the Contract without cause.”

And that, is the fundamental unfairness that allows a Council to terminate the employment arrangement without cause, and in turn allows a GM to do similarly to other senior staff.

It’s not good enough. While members of the SES in the State public sector have been transitioning away from term contracts into permanent employment now for four or more years, the OLG, responsible for the management of the Local Government Act, have sat on their hands and made a few minor changes, but remain committed to the capacity to terminate the contract “without cause”. Or Local Government Ministers have made them sit on their hands (a position they must find increasingly uncomfortable) but it’s hard to know.

The OLG managed a Working Party to review the GM and Senior Officers standard contracts way back in 2012, but there are still no protections, no mandatory mediation before termination for example, and still the 38 weeks’ payment without cause continues.

There was some disagreement between LGNSW and the unions, and also with Local Government Managers (or whatever they’re called these days) about appropriate termination and penalty arrangements. There is now a brand-new board of young bloods in LGMA, I wonder what they think about complying with the standard contract and unfairly terminating it? We’ll ask them.

This will be something for us to start pursuing again if there is a change of government in NSW after 23 March. But even if there isn’t a change, something needs to be done.

It is entirely possible for a Council to breach its obligations to conduct performance reviews, provide proper performance feedback to a GM, and any number of other provisions within the standard contract and then terminate without cause and get away with it. And similarly, it’s entirely possible for a GM to do that to a member of their senior staff. It’s a shortcut for the lazy.

When the GM at Mid-Western sacked two of the directors without cause, including a member of ours, back in 2016, we took action for that member under section 106 Unfair Contracts of the Industrial Relations Act which allowed us to settle. But the capacity to sack people without good reason remains.

In 2005, Haylen J in the IRC in Paparo v Moree Plains Shire Council found that the Unfair Contracts jurisdiction was available to local government senior staff, and that included the power of the Court to vary unfair contracts to make them fairer and to provide compensation beyond that provided in the standard contract.

Now with the separation of the IRC and the removal of the more judicial roles to the Supreme Court, section 106 Unfair Contracts run in the Supreme Court, a costs jurisdiction which will make councils and GM’s work harder to avoid what Ernie Page described as looking like they’re using “a tool for terminating individual staff... giving rise to concerns about the ability of Council staff to maintain their independence and give professional opinions about Council matters”.

It’s hard not to speculate that there are some shoddy terminations going on, where there is clear evidence that a GM, for example, has been guilty of multiple breaches of the senior staff contract for someone reporting to them, creating multiple layers of unfairness and then, clearing the deck, without cause by paying 38 weeks. The only prerequisite to that being section 337 of the Local Government Act, which requires the GM to consult with the Council prior to the termination.

And it would be a foolhardy GM who didn’t do that. Wouldn’t it.

NSW Government doesn’t understand why they lost the High Court case

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Published: Thursday, 28 February 2019 15:03

When the Full Bench of the High Court smashed the NSW Government in a unanimous judgment of the seven members on 29 January, they found that the steps the government had taken to slash the amount of money third-party campaigners could spend in elections were unconstitutional. That means, it was not legally available to the Government because of provisions in the Australian Constitution.

But, that stinging rebuke, that it was fundamentally unlawful, didn’t penetrate the members of the Government, who still blissfully continue refusing to use the word “unlawful” when they described their disappointment. This is extraordinary because this is the second time this has happened to this government. Pay attention you lot, it’s unlawful and unconstitutional, and now you’ve done it twice! So much for the learning curve.

NSW Treasurer Dominic Perrottet in the Sydney Morning Herald on 30 January said the government was “disappointed” and “unions will now have the ability to exercise free rein on spending the members’ dues - without giving them a say - on wall-to wall advertising during the NSW election campaign.

The purpose of our legislation was to clean up politics. The government believes elections should be free and fair, not bought with out-of-control spending by unions and other third parties”.

Given that they can spend $11 million themselves, that really is arrant nonsense but I’m sorry Dominic, it was unlawful. You can be as disappointed as you like, but it was against the law.

Similarly, John Barilaro, leader of the National Party in an approach to members and supporters lamented “The Unions have won”.

I’ve just received word that the High Court has blocked our efforts to rein in the vast amount of money Labor’s unions and third-party campaigners like GetUp can spend on election campaigns. It’s terrible news.

I am worried we won’t be able to keep up with a negative impact of this new spending that will be coming into our election. We are mere weeks away from the State Election and unions have just scored a major victory.”

Hey John, it was unlawful. It was illegal. It was thrown out because it was unconstitutional. That’s a level of denial comparable to the Nats’ denial of the evidence of climate change.

And finally, by regulation, the Government has now re-introduced the cap that existed prior to their unlawful legislation of $1.228 million, with no restrictions on the amount of money a number of third-party campaigners can pull together to participate in the democratic process. Now that complies of the Constitution.

And, four weeks out, has anyone seen the wall-to wall union campaigning?

We file our first dispute of the year with Snowy Valleys Council

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Published: Thursday, 28 February 2019 15:03

Section 354D is a real nuisance to merged councils, isn’t it? An indefinite protection on “entitlements” of employees that existed at the time of merger that Snowy Valleys didn’t really like.

And trying to hide behind the suspicious loss of documentation from the former Tumbarumba demonstrating that this was an agreement between the GM and the employee, they heavied a member of ours to stop paying the full costs of an associate diploma. More suspicious was that even documents and emails existing at Snowy Valleys supporting this continued arrangement have gone missing as well.

It was a relatively simple matter for us to contact the former GM at Tumbarumba and provide evidence to the Council, something that SVC didn’t bother to do. That would have been a good start, before the heavying.

It doesn’t matter about the politics of merged organisations, an entitlement is an entitlement. More next month.

"Roll out those lazy, hazy, crazy days of summer; You'll wish that summer could always be here"

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Published: Monday, 21 January 2019 14:11

Kaldas review released in December

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Published: Monday, 21 January 2019 14:11

We were a bit distracted in December with our wage theft issue, amongst other things, and haven’t yet reported on the release of the Kaldas Review just prior to Xmas.

Here is a link, if you haven’t seen it.

The NSW Government announced immediately that they had adopted the 19 recommendations (on page 7 of the report) but for our purposes, the critical issues are these:

• IHAPs will be extended to “other regional centres” but this only means Central Coast and Newcastle Councils
• Encourages transparent, clear decision-making processes (!)
• Recommends that the Department of Planning “establish an Independent Ethics Unit”
• Greater transparency within IHAPS, including probity checks of members of Planning Panels
• Recommends monitoring “the development of the South Australian scheme in relation to accreditation of Planners and review in 12 months’ time the desirability of progressing a similar scheme in New South Wales”. Uh oh, looks like a study tour to me, and
• dogs it on the issue of certifiers, saying “given there has been significant recent legislative amendments and ongoing work to examine the role of certifiers, I do not propose to make a recommendation in relation to this issue.”

Opal Tower fiasco raises opportunity to review everything

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Published: Monday, 21 January 2019 14:11

There are so many things potentially wrong with this fiasco to go into here in our lazy, hazy, crazy January issue but it does remind you of how more sophisticated and classy it sounds to call it a block of apartments than what it used to be called in the past, a block of “flats”.

Better to leave it to experts and there are few more expert than these two. First, the former local government reporter of the Sydney Morning Herald Harvey Grennan, who made a welcome return to the SMH on 28 December. We loved Harvey and we are delighted he took a break from the frustration of dealing with Central Coast to provide a clear and erudite analysis headed “Sydney’s dodgy buildings due to 17 years of inaction.” We love your work, Harvey.

And second, SMH journalist and ex-Sydney City councillor Elizabeth Farrelly in the SMH 5-6 January, under the heading “Opal: a planning failure not just a transport card”. Always a highlight of the weekend, and the guarantee of learning a new word or two, a fabulous probing and critical mind and a beautiful writer. Anyone who described private certification introduced by Craig Knowles and the NSW Labor Government 20 years ago as “a small measure of stupendous idiocy” bringing  the “inherent and unavoidable conflict between public duty and private money”, sounds like one of us.

Watching all of those involved in building, construction and development running for cover as this gets investigated, and calling them out, will provide us with a very entertaining 2019.

And just for good measure, and also to do the right thing by Gordo/LGEA/APESMA for their current campaign, Elizabeth last weekend dealt beautifully with the related issue of “Welcome to the Faulty Towers state, where any mug’s an engineer”.

How's HR been this year?

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Published: Wednesday, 19 December 2018 10:34

This is a time of goodwill and, while it’s very easy to make jokes about HR (we’d know, we’ve done it ourselves for years) there have been some real positives in the industry in 2018.

Not the least of which is a couple of councils picking up on the health and wellbeing provisions in the Award and doing something seriously about it. This was one of our claims that went into the 2014 Award and allows for employees to claim two days from their sick leave each year for health and wellbeing activities. Unfortunately, traditional HR practitioners and local government management is reluctant to set up arrangements that require independent judgement and discretion. Far better to have a rigid list of options so the decision-making isn’t very difficult. Can’t blame me.

So the early responses to having a proactive approach to health and wellbeing were to focus solely on preventative health measures, normally provided by doctors and health professionals. It’s okay to have your skin check, but if you need a day off to clear you heard - go for a bushwalk, do a meditation course or read a book - that provided too many challenges.

Last year The Hills embraced the concept of removing restrictions on the sort of things that employees could apply to do in their two days. But The Hills example was too confronting for most councils with rigid approaches to things that you can often use sick leave for anyway.

This year we failed to convince those believing themselves to be progressive and game-changes at Lake Macquarie to introduce broad access to health and well-being activities in their Enterprise Agreement. The Council does have an arrangement that frees up the taking of sick leave but were reluctant to embrace this specific targeted health and well-being initiative. Disappointing to say the least.

Not so Newcastle City which, predominantly because of initial pressure from the three unions in the negotiations and a developing appetite in management to do something demonstrating their preparedness to trust the workforce, the EA, made at the end of this year, provides the option to be fleshed out with some guidelines later.

But, if there was ever going to be a Council where a GM would have an appetite for embracing and demonstrating trust in the workforce, it would be Liverpool City. CEO Kiersten Fishburn was always going to be open-minded and when proposals were developed by her HR team and Director of Corporate Services, she grabbed it with two hands.

Liverpool City ends the year with what is clearly best practice in the industry – a twelve month trial to “enable employees to undertake health and well-being activities that lead to positive health outcomes.” There is no prescriptive list as long as the days “fit generally within the concepts of health, fitness, exercise, improved health benefits, as well is preserving mental health in times of stress.”

A bold and courageous move we hope to see flow through other councils in 2019.

We’ve had a few issues with consultative committees, and arguments about their composition but while HR issues are a weekly phenomenon in enquiries to our office, things haven’t been too bad this year. While the private sector has been sprung ripping people off vigourously in hospitality and franchises, to the extent that the union movement is pursuing the criminalising of wage theft, we didn’t think we’d ever see anything quite like that. Wage theft, let’s not beat around the bush.

There are some usual suspects in the list of nominations and a couple of stellar performers who, with hindsight, should have been dealt with earlier. Here are the nominations:

Campbelltown City

How could Campbelltown not get a mention in 2018 when the year began with substantial display ads in the Sydney Morning Herald and employment websites for an entire “HR Team”? The chronic mismanagement and neglect of staff over recent years had led to departures from people in HR unhappy about the way GM Lindy Deitz thought the business should be run.

At last some proper recruitment in the planning area (we starting agitating for this more than two years ago) saw more than a dozen new appointments and, as we publish this, only two vacancies left to fill, the exit of people unhappy from HR makes life harder for everyone else.

And, we witnessed one of our member’s brutal and unwarranted treatment in a minor restructure. Here was a person doing substantially the work of a newly created position, everyone in the organisation from her Manager, Director, HR people, Director Corp Services and Acting GM, all endorsed her direct appointment to the job - until the GM returned to work and decided there should be an external advertisement. In terms of overriding a chain of recommendations already signed off, this has to be some kind of record – five people!

In the end, our member was appointed, offended by the process, unnecessarily worried and concerned about her job, and rightly so, in an example that just continues the litany of bad HR decision-making and ignoring the rights of employees who are long-serving and deserving of better.

Richmond Valley

Richmond Valley has flown under the radar for a long time. Former GM John Walker had set up a “scholarship” program for local young people to bring them in, try to indenture them, put them through university and have them work for the Council at the same time.

All well and good, but one young trainee planner was concerned about the rates of pay and how they didn’t appear to coincide with the T scale in the Award. So she asked to meet with the Manager People and Culture (!) for an explanation. And, for good reason, took our delegate with her to help.

Now you would think, wouldn’t you, that in a Council that talks up its commitment to gender equality and empowering women, that the Manager People and Culture’s immediate response would be helpful and empowering. And when you think about it, a trainee, with no tenure beyond the traineeship, has to be about the most vulnerable person in the place.

“If you took this to court, you would lose”, said three times during the course of what wasn’t a very helpful meeting, revealed a lot about People and Culture but more about the way the Council itself wanted to deal with the issues raised. Considering that neither the GM Vaughan MacDonald, nor the Manager People and Culture (!) were responsible for these arrangements, it should have been an easy matter to resolve. But it wasn’t.

So, as a member of ours, we pursued it and found that there had been substantial underpayments made over the entire course of the “scholarship” (which was nothing more than another name for a traineeship, under the terms of the Award) but where the Council built their scholarship program by intentionally underpaying Award entitlements – by a massive $241.70 a week in the first year.

On the face of it, getting kids from school to sign a contract that’s built upon rates of pay below those provided in the Award is taking advantage of those least able to contest it - the enthusiastic but vulnerable, keen to get a job. GM Vaughan MacDonald defended the “scholarship” arrangement because it gave kids opportunities they would not ordinarily have and that it would be our fault, pursuing this, to remove that opportunity. Funnily enough, that’s how all of those bosses guilty of wage theft in hospitality and franchising describe it as well.

There are always more opportunities if you underpay people because your money goes further. But isn’t it funny, they don’t think about ripping off their Manager People and Culture, or their other staff by trying to pay them under the Award.

In the end, we can only talk about our own member, but her underpayment, which we remedied, cost the Council around $30,000. We understand they have made adjustments to all those other traineeships as well.  No wonder they were distressed and no wonder when a begrudging general manager accepted that they were trainees under the Award, and would need to be paid based on the T scale, and adjusted every year consistent with that scale, he then thought that she could pay half her university fees.

No, Vaughan, that’s another breach of the Award. And we made sure that didn’t happen either.

Shoalhaven

Shoalhaven was one of a number of councils where the unions struggled to reduce the number of so-called “workplace” representatives on consultative committees but where we were able to reach some agreement after a difficult period of unpleasantness. Not with the GM, mind you, who has been a beacon of wisdom and tolerance since winning the Golden Turd in 2014 and 2015.

But then, someone in HR (who should know better) had a quiet word to our delegate and member of the consultative committee to tell him that providing emails from HR in the argument about the composition of the consultative committee to his union for advice may have breached the Code of Conduct because this was “Council information” and should not have been sent outside the Council!

In all the years of ludicrous and bad HR judgement, this was a first. How can a member of the consultative committee take advice from the union if they can’t supply the documents?

In the end, that advice was acknowledged as being wrong. Still, it shouldn’t have happened.

Sydney City

The City, as they like to be known, always gets a run. Their attitude to HR and employment, through a very old-fashioned Award, with the flexibilities and improvements that we have been able to introduce by agreement in the State Award ignored, with the rejection of introducing any flexibility for things like health and wellbeing access to sick leave because they failed to manage sick leave anyway, and simply didn’t trust their employees to have access to it in any other form, means they will always get a nomination.

But for one of our members, who found that their boasts about caring for the wellbeing of employees were not honoured when she presented authoritative medical evidence that her health required shorter days, and required them immediately. This request was ignored for three weeks, making that, and whomever was responsible for that decision, a clear record holder in the industry.

Medical evidence is medical evidence, if you don’t like it, you have the employee examined yourself. If the Council wants to do this, they should still comply with the medical evidence until they are in a position to inform themselves.

We fixed it. But it shouldn’t have happened.

Tweed

Tweed was our winner last year. It was the most hazardous workplace for our members in NSW and of our two members with workers compensation claims accepted, one has now left the organisation but is still receiving treatment by the insurer and the other has returned to work, albeit in a different office to the problem manager and after a great deal of suffering.

But at last, another union got involved after a member of theirs was reduced to tears by the same problem manager and his lack of empathy and incapacity to tell if people are upset.

It was enough for us that we have members reporting that the problem manager spend more time in his office, and there was not a risk of bumping into him in the tea room, so things could have been worse. But GM Troy Green, while finding it relatively easy to ignore us, hasn’t been able to find it quite that easy ignoring the USU. Ask not for whom the bell tolls at Tweed these days...  

Willoughby

GM Debra Just was appointed in 2015. A difficult time admittedly, as Willoughby looked at the prospect of merger with Mosman and North Sydney, but a staff turnover of 22% in 2015/16 is a serious effort. We’ve never seen worse. In recent years it settled in around 17% which, in itself, will be hard to be beaten by other councils.

In 2015 the first restructure provided opportunities for three of our members, having seen the writing on the wall and understanding that it read “get out of here if you can”, took redundancies. This approach, of restructuring under the guise of being more productive and efficient and providing better services, really just meant ending up with fewer people at the end of the process.

Again in 2018 the Council proposed to rationalise EHO’s into one area. We had a member who was an EHO who, when the Council provided the notice required under clause 39 of the Award, they provided us with documents about the current structure which were wrong. We think it’s probably because HR is as understaffed as everywhere else, but we knew that the current structure had a position of senior EHO and an EHO but the Council, doing something they do as a corporate philosophy and strategy, had our EHO member acting in the senior job, but really being required to do both.

The Council was apologetic about the inaccuracy (we accept it was a mistake but there remain suspicions in the workplace that it wasn’t) but it revealed a lot about a Council that should have been brought to our attention earlier.

Willoughby Council has more vacancies unfilled than any other Council we’ve dealt with this year. And, as we’ve seen from this example above, the Senior EHO position was vacant for four years! This compounds the Council’s problem because it also means that they breached that provision of the local government act preventing temporary appointments for more than 12 months. Come on Debra, have a look at section 351 (2)

There’s a lot of money to be saved by not filling jobs and having other people, often working for nothing, picking up the slack. Willoughby should do a survey of unpaid overtime...  It’s not just happening where we have members.

The USU is now agitating against the Council’s failure to advertise and fill positions, also having tolerated for too long this deliberate management strategy to have people working harder and covering the gaps, rather than filling the vacancies.

Sick leave is at unprecedented levels and they have a consultative committee that has never properly complied with the provisions of the Award - something the three unions are now involved in trying to remedy.

The current constitution was developed in 1996, it provides for a “chairman” but a “spokesperson”, so obviously in 1996 only blokes could chair the committee but any gender could be a spokesperson.

More importantly it ignores the compulsory requirements of the Award for a minimum of union representation from the USU, LGEA and depa - preferring to have operated for all these years, contrary to the Award, with ten employee representatives from distinct areas of the Council and a cursory note that the structure with the ten employee representatives “requires that at least one elected representative from unions party to the award.” How have they ever got away with that?

Not a happy place to work, chronic understaffing, a corporate approach to leaving positions vacant as long as they can, unprecedented levels of sick leave and industry-leading figures for staff turnover.