Part 1 - OLG confesses - “OLG would have been aware of multiple cases of alleged (and now proven) misconduct when Deputy Secretary Hurst made a determination on 5 February 2021”

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Published: Wednesday, 20 December 2023 13:03

OLG has confessed at last.

“OLG was aware of the September 2020 incidents you have flagged very soon after the conduct occurred. This means OLG would have been aware of multiple cases of alleged (and now proven) misconduct when Deputy Secretary Hurst made a determination on 5 February 2021.

By the time the determination was ultimately made OLG was clearly aware there were a number of other incidents, while (and unfortunately), the determination implies there were none…”

Our November issue updated our dogged pursuit of the Office of Local Government since the former CEO Tim Hurst got it wrong in paragraph 20. The infamous paragraph 20 which, as a reminder, (because we are allowed to wallow in our vindication a bit after all this time) said this:

20.         I have considered and taken into account that this conduct occurred in a single episode, in the absence of any prior offending or post event conduct in the past two years and the  lack of previous incidents of misconduct on the part of Clr Funnell

depa immediately called that as demonstrably untrue. We knew of prior offending, and post event conduct and previous incidents of misconduct. Everyone did, but paragraph 20 makes the former councillor sound like a clean skin, when he was anything but.

We did everything we could: made an FOI application with the OLG which they rejected so quickly that our cheque in the mail would not have even arrived in Nowra; we made, and lost an application to NCAT trying to understand how OLG had got it so wrong; we appealed that NCAT decision, and lost that. OLG keeps its secrets better than the Kremlin.

Then OLG made an application to NCAT to have the former councillor prohibited from nominating as a councillor for five years. They based their application on two examples of behaviour. The two examples predated Hurst’s infamous paragraph 20. His incorrect observation was made on 5 February 2021, and the two examples of misbehaviour were on 14 and 18 September 2020, predating his monumental fail. Choosing those two examples when they now concede there were many, was almost a gift for us.

There is a cluster of people working in OLG who were complicit in this. We don’t know who they all are, but there are people in their legal branch or “the team”’ who monumentally failed and, up until this moment, got away with it. And others still working there, not in the legal branch knew it was incorrect at the time and have participated in the cover-up as well.

No one in the industry can match our dogged determination and, in a letter dated 12 December 2023, Brett Whitworth Deputy Secretary, Local Government confessed that OLG would have been aware of misconduct and Hurst’s statement was wrong.

There are significant concessions in the Deputy Secretary’s letter, we’ve only quoted two sentences above, and for those of you who have followed this as we pursued the regulator for their appalling behaviour, here are our two letters pursuing this and the OLG’s 12 December response.

The 12 December confession makes satisfying and highly-recommended reading. The letter still provides some justification for misleading everyone, “the team wanted to protect the integrity of the process” and we reject this as nonsense - the last resort of “the team” claiming their commitment to integrity when what they were doing destroyed the integrity of the process in a way that undermines the general integrity of OLG.

Neither does the letter deal with why they continued to cover it up. We can guess why they did (because they are miscreants) but we are now dealing with a new CEO managing a regulatory body who has learned lessons from this experience. The OLG still contains people who got it wrong and compromised their integrity.

depa’s actions and inexhaustible commitment have been vindicated. OLG will never do this again.

We accept the 12 December confession as resolving the matter - thank you Brett - although there are some people we look forward to seeing pursue employment interests elsewhere.

And speaking of miscreants…

Part 2 - 2023 depa awards for the Worst HR in Local Government

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Published: Wednesday, 20 December 2023 13:03

How’s HR been this year?

Names are often changed to protect the guilty. We are familiar with bad businesses, unfortunately often builders or developers being bankrupted, and re-emerging with a new name but continuing as they had. Sometimes people do this over and over again, same old, same old, a new identity but the same dodgy or unacceptable practices.

Looking at HR, it all began when Personnel became Human Resources. A name change intended to present a new identity, more touchy-feely, less a fearful cluster of people busy justifying and assisting bosses to do things their employees don’t like. The title was criticised for legitimising that people at work were resources, just like plant and equipment. That was a bit dehumanising, but it was still the fearful cluster of people busy justifying and assisting bosses to do things their employees didn’t like.

Now it’s People and Culture, presenting as more accessible, holistic even, concerned about the whole person not just the resource, but it can still be the same fearful cluster of people busy justifying and assisting bosses to do things their employees don’t like.

For us, it’s a couple of letters more at risk than H and R, of being misused. Critics or dismayed employees might think P and C are more appropriate as the first letters for a range of unacceptable words (never seen in depaNews) that can more easily apply crudely to bodily parts. Luckily for us, while some are worse than others, we’re sure that none of them can be described that way.

So it remains our HR awards, at least for this year. Feel free to tell us what you think for next year.

We have a not-quite-bad-enough-to-be-nominated category – on probation for 12 months

This year, we had some councils doing things that looked like they were begging for a nomination. But then, for a variety of reasons, goodwill and reason prevailed and they pulled back from the brink. Both of the councils below started badly but improved remarkably, and a probation period will keep them committed!

Like the City of Ryde, where an eavesdropping snitch made allegations against three planners in a late afternoon discussion about their despair over the NSW Government’s intervention in the Council’s plans for Macquarie Park. Not a planner, the content of the discussion amongst professionals was misunderstood, potentially malicious and in a lesson to the Council, just because allegations are put in a stat dec, doesn’t mean they’re more likely to be true or legitimate. This could have been resolved by the Director without fuss. And without losing three good planning staff who decided they didn’t want to work in a workplace where this could happen and went elsewhere.

Like the City of Sydney. The City (as they like to be known) has had more nominations than any other Council, seven between 2014 and 2021, missing out on nomination only once in that time - and with hindsight it was clearly more oversight in the 2021 awards than a reflection of good behaviour.

It was always surprising that the City, with its progressive and benign political leadership, didn’t match that in their approach to employment. The Awards were old-fashioned; salaried staff work 38 hours instead of 35; there was no overtime available over a certain salary level; and over that level there was an expectation that employees work unreasonable hours, and they resisted falling into line with the more progressive and flexible arrangements under the State Award.

We argued with the City to provide clause 9B from the 2020 State Award, obliging them to provide adequate resourcing so that work could be done in hours that were reasonable, but the Council HR rejected that, arguing they had policies that covered it. They always say that, we asked for the policies, repeatedly, but when they did provide them they had nothing to do with what we were looking for but everything to do with trying to fob off acknowledging an obligation to provide adequate resourcing and reasonable hours.

That was the old guard in HR, this year a new broom was able to reverse this and a provision was incorporated in the City Award this year. But as good as the new broom is, he couldn’t shift some of the Executive leadership to agree to introducing the Right to Disconnect clause from the 2023 State award - although he remains hopeful that can happen when we negotiate the 2024 Award next year. I hope he keeps his expectations realistic, they will say they have a policy but an award entitlement to disconnect is much more valuable, and enforceable.

After almost a decade we can now be optimistic about the future for employees of The City. The new broom stopped the City from being nominated.

Or like Randwick City.  The GM took extended leave and, in his absence in June, an acting GM wrote a clumsy message to all staff instructing them that they were all to “return to working from the office full-time … Commencing Monday, 31 July 2023”, five weeks away.

We were onto it with thirteen questions they were going to struggle to answer, like did they have any evidence of a drop in productivity or services when working from home. The Herald ran the story under the headline “Disrespectful and out of step; Council staff revolt over end of flexible working”, based on our letter, some anonymous emails from staff feeling betrayed and an interview with the Greens Deputy Mayor. With a bit of assistance, the real GM found a form of words that calmed everyone by removing the deadline date and proposing discussions when he returned. In doing so, he made it abundantly clear how easy it is to work remotely, by drafting the wording while on extended leave visiting family in Dubrovnik!

It then became a pleasant and benign process (as we would normally expect from that GM) where the unions agreed to a process where anyone who wanted to continue working from home made an application, providing reasons why it’s in the interest of the Council and committing to comparable productivity and service. Often, it’s all about answering calls.

We’re all in the process of developing a policy now but the formula has those who are working from home is two days a week at home and the remainder in the office, and RDOs to be taken on a home day. It’s accepted that this will be a dynamic policy document so that if we can provide evidence about things working well, there are possibilities of more home days, and obviously on the other hand, if they’re not, fewer.

Sutherland, no nomination, not even close, whatever happened?

We have four nominations - and too many procedurally unfair investigations  

Hawkesbury City Council

This is Hawkesbury’s first nomination in our 13 years, but it has been worth the wait.

It starts with a relatively normal health/building/planning Department but with a Director from none of those professions, and a background in community work. That’s unusual.

One day the Director overhears a conversation taking place between two of our members about resourcing and the need to get some evidence together to pursue a claim for resourcing to fill a gap created by the reallocation of some work. The discussion took place in a closed meeting room (with soundproofing as effective as the legendary Cone of Silence) and then continued in the general office area and virtually outside the Director’s office.

Without raising the issue with either of our members, the Director made a formal complaint to HR. She told our member that she believed his behaviour was unacceptable (although it wasn’t clear whether that was because she thought the conversation loud, or conspiratorial, or anything else) and when he asked to sit down and talk about the issue because he didn’t understand the problem, she refused to do so, stating she was committed to a disciplinary process. Charming.

It’s at this stage this will look like a treatment for a comedy set in a poorly-managed office. The Director was the complainant and when we met for an interview where the employee had the opportunity to respond to the allegations, it was Director who conducted the interview as the investigator. This is unacceptable, depa made the point in the discussions, but they continued.

Then the Director, having heard the response and explanations, made a finding that the allegations she had made were not sustained.

That’s a real FFS moment. The complainant is also the jury and the potential executioner but then finds that her own allegations were not sustained. As improbable as it sounds, this is precisely what happened.

The Council refused to apologise but grudgingly recognised in a letter responding to depa, stressing  those things they believed were procedurally fair but then conceded at the bottom of the page that we were right, it could have been done differently.

It was a farce. The circumstances recited in this nomination would more likely found in an episode of The Office than in a professional workplace where employees and their views are respected.

Alarmed about the new culture in the organisation, our member, cleared of having done anything at all, was astonished at the lack of disrespect and found greener grass elsewhere. A tragic loss of valuable employee, well-regarded, committed to the Council up until this fiasco, and now a gaping hole they will struggle to fill.

MidCoast Council

This nomination was clearly foreshadowed in the earlier issue of depaNews this month where an update was provided about the dispute which earned the Council the Golden Turd last year. The dispute continued without respite all year. Periods of conciliation in the IRC failed, two dates were set for arbitration in Newcastle in November, and we were all back in the IRC on 13 December with the expectation that if we couldn’t settle it, final submissions would be made and the Commission would resolve it by arbitration.

The dispute is about an attack launched on the salary system by the GM, Adrian Pannucio, appointed in 2018 and, up until a point, based on advice from his HR Coordinator. If you look back on how the dispute was reported in August and December 2022 in depaNews you will see the redaction of the name of one of those. This report will be sufficiently polite that no one will feel obliged to pursue defamation against us this time, even though as ineffective as it was, and inconsequential other than the redactions, it was good fun.

This was all about the GM trying to wreck the salary system. Originally developed at Great Lakes, to provide 13 steps of 1.25% each, requiring only that the employee “Met Standard”, because the GM at the time preferred to spend his money rewarding employees for their loyalty and service and doing the job properly, rather than on the apparatus necessary to manage more complicated progression. There were also options for more than one salary step for people performing beyond expectations.

It’s impossible to understand why this is a cause the GM is pursuing with such vigour. He claimed in his evidence to the Commission that this was not because of the costs but we don’t believe him. It is the only way you can understand an initiative to erode the progression of employees and prevent them getting access to the pay increases available. We have three members who provided statements and evidence about the financial losses to them from the Council’s proposal - anywhere from $30,000 up over the next 10 to 15 years.

Morale at MidCoast has never been lower. This is a dispute that affects most employees who see a ferocious attack on their standards of living and their expectations.

It’s also a dispute that tests clause 8(xii) in the State Award which everyone knows means that if the employer introduces a salary system that negatively affects your pay or progression, then you can remain on your current system. This has been notorious in the industry, supported by both LGNSW and the unions and everyone has understood and interpreted that provision as meaning any disadvantage, but the Council is pursuing whether the individual words used in the Award say what everyone in the industry says they mean.

It’s a black letter law argument, when it’s all about intent and context and how it’s operated without any assault like this one, for the last 13 years since that provision went into the Award.

The dispute is not yet resolved. But the obsessive and bloody-minded GM has rejected a series of significant concessions being made by the unions in conciliation, disregarded the dreadful morale at MidCoast (32% of employees resigned in the last recorded 12 months - when the industry average in the area is closer to 12 to 15%) as if it didn’t matter at all, and he ploughs on.  

Port Macquarie Hastings Council

Nominated in 2021, and this year watching a handful of their environmental/building professionals go to better offers, they abandoned all of the concepts of procedural fairness in a clumsy and heavy-handed investigation of a grievance that had our member off for two weeks with elevated blood pressure. A new HR employee was allocated the role and clearly had no concept of procedural fairness, nor how to properly conduct an investigation. She should not have been given the responsibility without oversight.

The first meeting would normally be brief, the Council would give the employee a letter containing the allegations and the option of responding if they thought they could, and a further meeting arranged for a response or in writing. The Gestapo would have handled it with more sympathy and respect for procedural fairness. This person demanded that our member respond immediately, asserted this was the opportunity for responding and harassed and cajoled our member, and our delegate, for three hours.

After hearing of the fiasco we intervened, stopped the process and demanded the Council to start again. They agreed and contracted a capable and professional external investigator to do just that and start again. This should not have happened at all, and apparently now all the Council’s HR people are doing training on workplace investigations through LGNSW. Better late than never.

Our member reported that when he was contacted by that same unreasonable interrogator to pass on the news that there would be a new investigation, she sounded like she had been “scolded”. Not scolded enough given the appalling treatment handed out to our member …

Shoalhaven City Council

We’ve had two industrial disputes with Shoalhaven this year. The first over an investigation we regarded as lacking objectivity and impartiality. It was not obvious they had had failed to speak to the relevant Manager and a Team Leader until the investigator had made a range of findings. Allegations had been made that we believed reflected the responsibilities and authority of both the manager and team leader positions, and our member wasn’t being provided with procedural fairness while ever these employees were not involved in the investigation. We asked that the investigation be reopened and those two employees interviewed.

The Council refused. We filed a dispute, the Commissioner made a recommendation supporting our request and requiring depa to outline the reasons why that we believed that to be essential, and the Council acceded to that request. They had little option to do otherwise, it was such a glaring error. this. 

HR already had the result they wanted and didn’t think it needed to go any further.

One of the principles of natural justice is that you can nominate people that you would like to be interviewed because you think they will assist your defence. This was not offered to our member, and it was contested by the Council until the IRC persuaded them to do so. This was not fair to our member and this experience, and a preceding experience, made it look like the Council conducted investigations convinced that the role of the Investigator was to nail people.

We shared a redacted version of the investigator’s second report to the Manager (who has now retired from the Council) and he identified six or seven areas of what he believed to be inaccurate recording of his statements. But on revealing this to the Director, advice was sought from HR and the Manager was threatened with code of conduct breaches if he were to proceed any further. He chose not to. The Council thought it more important to prejudice the integrity of their investigation, than do the right thing. Lovely.

Then later in the year, as we reported in the earlier issue in December, the Executive Leadership Team decided that they would roll out new template email signature blocks that would require anyone with a Council phone to have their mobile phone number on their email.

This alarmed members in compliance and a whole range of other activities where they know the risks that can arise when people who are already aggrieved by your actions and decisions, get access to your mobile phone. One member had a previous experience at another Council where she was harassed so significantly on her mobile phone, that the Council changed her phone number.

But at Shoalhaven, there was no consideration of the likely impact on employees with difficult jobs making decisions that invariably result in someone being aggrieved. There was no complaint from the Council, or anyone else, there were assertions about enhancing the customer process, there was no evidence about the current process and projections for that improvement. A director “floated” the idea, and all the compliant directors fell into line - astonishingly none of them, despite their local government experiences, were conscious that this might be an issue. Or if they were conscious, failed to act on it.

We won the dispute, the Council agreed to provide a choice of templates so that employees had the opportunity to choose whether to reveal their mobile phone number or not, but when we subsequently conveyed a request to HR that members who send a lot of emails were finding it a nuisance to have to do this for every email - making them less productive - and whether or not IT, if they could change the template to set up a default without the mobile number, why they wouldn’t.

Apparently the majority of employees were choosing the Council’s preferred template and in those circumstances we wouldn’t have pressed the request. But instead of telling us that was the case in a professional manner, our request was branded “unreasonable”, said twice in one quite small paragraph, and then it was asserted “we feel we have been very accommodating of your request to date” when multiple requests to stop the rollout to allow us to confer had been rejected and their decisions after the filing of the dispute were all made on the back foot with pressure from the Commission. When that could not possibly have been true with the GM refusing our requests to stop the rollout while we met.

Then the Director to whom HR reports, the Director of City Performance, launched an attack upon us, our correspondence  was “disrespect of our senior staff”, she was “appalled at the way you communicate with staff... disrespectful and we will no longer be communicating with you”. Take that depa!

It’s a bit hypocritical to be alarmed about disrespect when we were adversaries in an industrial dispute which was filed because the GM had repeatedly refused our requests to stop the rollout to allow us to confer without pressure - three or four times in fact - but that’s apparently not seen as being disrespectful. A Zero Tolerance “for communications that affect the wellbeing of our staff” should have stopped the Executive moving until they were certain there were no staff whose wellbeing could be affected by being more accessible after publishing their mobile phone numbers.

A Zero Tolerance policy doesn’t prevent unions and others examining and criticising the decisions of the Executive if they have an adverse impact on our members, and if the decisions were not backed by evidence or consultation. It can never be a policy which makes bad decision-makers untouchable.

Here is our letter to the GM in response. If the Council were to put a ban on a union official, it would be unprecedented in the industry. Good old Shoalhaven, they won the Golden Turd two years in a row, in 2014 and 2015 and have been under the radar ever since. Until now.

And the winner is:

Despite a late surge and commendable effort by Shoalhaven, how could it be any different? Mid Coast had a head start and kept grinding their employees into the ground all year. A policy deliberately developed to stop employees progressing in the salary system and costing them very large amounts of money if they remain at the Council.

And at the time where the statistics show an alarming collapse in the morale of staff, evident in staff turnover since 2018, 300 resignations in 12 months in the last report to the consultative committee and almost 500 USU members meeting and rejecting the proposals to the salary system with not one person supporting them. It’s a sad old place, bring back Glenn.

That’s it for us – looking forward to 2024

The depa office will be closing at midday on Thursday 21 December and reopening on Wednesday 3 January. Sue Burton, our new Office Manager will be returning to the office and will manage anything urgent with access to members of the Committee or our legal team. And if everyone can behave themselves in the meantime, I’ll be back on Monday 29 January.

From the office and the Committee of Management, we wish you a joyful and festive Christmas, however you celebrate or spend the break, and an enthusiastic return to satisfying work, an absence of miscreants and councillors behaving themselves. And a Minister for Local Government committed to speedily implementing the legislative changes necessary to section 340 of the Local Government Act 1993, to bring senior staff into line with their equivalents in the NSW Public Sector, by removing term contracts and, as a bonus, reducing the risks of corruption.

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.