A Tale of Two Cities

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Published: Thursday, 20 April 2017 11:13

It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going directly the other way…

What a fabulous opening first line for anything. It is, of course, the opening first line to Charles Dickens’ most-read book, a Tale of Two Cities, the second most popular book in the English language with more than 200 million copies sold. It’s hard to imagine a book that anyone is more unlikely to have not read.

And it’s an appropriate lead into two cities that really are the best of times and the worst of times, wisdom and foolishness, Light and Darkness...

We make Sydney’s CEO Monica Barone apologise

We’ve often remarked on the paradox which is Sydney City. Fabulous progressive policies on transport, planning, community-building, sustainability and the environment but an approach to dealing with their employees more consistent with the middle of the 20^th century. How does this happen?

Nominated for our Worst HR in Local Government Awards for the past three years and a reputation sufficient for us to include in our Log of Claims in the current Sydney City award negotiations a claim to “insert claim”.

On Friday 7 October last year a couple of hapless apprentice locksmiths, employees of a sub-contractor to the contractor managing Town Hall House, without anyone knowing, started drilling fire doors clearly marked as containing asbestos to change door hardware and spilled asbestos fibres in 14 different places. This was a catastrophic collapse of procedures and protocols which resulted in an asbestos contamination in Town Hall House that put at risk the health and wellbeing of 900 employees. The catastrophic collapse included not just contamination in 14 separate places but decision-making that the building did not need to be evacuated based on incomplete and inaccurate information. The building should have been evacuated on the morning of 7 October and it wasn’t.

Employees continued to work in the building on Saturday and Sunday until the extent of the contamination was properly understood. The building was closed Monday and Tuesday with employees prevented from gaining access for the cleanup to be done properly. That the thorough cleanup required the place to be closed for two full days is evidence of the significance of the contamination and the failure of its management by both the City, the city’s contractor and the sub-contractors. A classic collapse of the contracting out model.

But getting information from the Council proved to be far from the boasting on their website about openness and transparency. Cover-up, obstruction, a dispute filed by us and listed on seven occasions in the Industrial Relations Commission where we were supported vigorously by the USU and LGEA until finally, like squeezing blood from a stone, we did get what we were looking for: a commitment by the Council that steps had been taken and what those steps were to ensure that never again will the City not know that there are people drilling holes in fire doors in their building, releasing asbestos fibres and putting everyone at risk. And, an apology from a reluctant and recalcitrant CEO.

For those interested in the gory details, here is our 20 March letter pursuing the three outstanding issues, the reply of 3 April from the Council’s solicitors Henry Davis York explaining the steps that have been taken in yet another proposed draft email for the CEO. The pressure was on, Commissioner Murphy had made it clear that if we couldn’t reach agreement ourselves on this, he would resolve it on 10 April. We responded suggesting that we needed these words added:

I apologise that this matter wasn’t handled well and guarantee you that processes have now been set up to ensure that this doesn’t happen again.

And here, significantly is the final apology issued by CEO Monica Barone on 11 April where she finishes by saying:

I apologise for any concern this incident may have caused and assure you that we have implemented processes to improve our procedures and avoid a similar event in the future.

The unions agreed with these words. We had adjourned the proceedings on 10 April with a request that it be discontinued on 12 April unless the Commission heard otherwise from us, just in case, given our lack of confidence in the way the City behaves.

The CEO’s apology to staff should have been provided immediately. It should not have required the unions to pursue her on seven occasions in the IRC and, eventually have her agree to do it because it was clear (certainly to the unions) that if she didn’t do so, the IRC would make her.

We know people make mistakes, everyone knows people make mistakes, we teach our kids that it’s better to clear the deck with an apology, but getting an apology from the CEO when clearly the City was at fault and responsible says a lot about the City that is unattractive and unacceptable.

The dispute was discontinued on 12 April, more than six months after the fiasco in October. This has been a shameful process. And, while we may have made Ms Barone do this, we still don’t have an apology from her for lying to us that we would get the consultant’s report into the fiasco when it was “completed and available” at 1:48pm when she and others at the City had it at 7 o’clock the night before. It had been in her inbox all the time when she sent two emails telling us we would get it when it was available and we didn’t get it until that evening when it was completed and available 24 hours earlier.

Sydney City is the worst of times, in an age of foolishness, in an epoch of incredulity, in a season of Darkness and the winter of despair.

Cripes, where was the compassion?

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Published: Wednesday, 29 March 2017 15:22

It was at the start and now at the finish.

If you’re about to go on parental leave, if you know someone who is about to go on parental leave, or if you’re just feeling amorous enough to get home tonight and do something that might mean parental leave would be relevant for you in the future, please remember to let us know*.

If you let us know we will continue your membership for free.  That means you continue to receive the benefits of membership while you are on parental leave and we do this because we have had far too many members needing help to arrange suitable flexible or part-time arrangements for their return to work.  Too many of our women members discover that the Council isn’t quite as helpful as they could be about a part-time return to work and we will act for you even though you not paying your fees.

How about that!

*Just to be clear, please only let us know that you might need parental leave in the future, not that you’re feeling amorous today.

Ex-Mayor of Hurstville exits with his tail between his legs

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Published: Wednesday, 29 March 2017 15:22

The former Hurstville Council had a very chequered history in its final years.  Riddled with allegations about inappropriate behaviour by councillors, Pizza Man GM Victor Lampe suspended until OLG intervened to secure his return to work (where he very quickly pulled the pin), and a flurry of allegations against the conduct of Mayor Con Hindi about his behaviour, personal developments and potential conflicts of interest.

The usual standard stuff really, and not really a surprise to those of us who have low expectations about the standard of people elected into local government office, but the significant concern in the list of unacceptable behaviour by ex-Councillor Hindi was launching defamation action against the Director of Planning and Development at the Council Michael Watt, over the content of a report dealing with unauthorised work at Hindi’s property.

This was unprecedented.  A report prepared by professionals, submitted by the Director of Planning and Development, a well-respected and highly-regarded planner, factually reporting on things that had been done on the property and making recommendations about remedy.  Despite the hundreds of crazy people, glory-seekers, rent-seekers, self-seekers, one-issue-zealots and general boofheads who have been elected to local councils over the decades trying any number of things to encourage, cajole or intimidate staff, this was quite a novelty.

And a novelty intended to prejudice the reporting by professionals about compliance with planning instruments and legislative controls.  It was an attempt at bullying of the very worst kind.

But, while being a blowhard might do it in the cut and thrust of boofhead councillors fighting with each other, when it comes down to pursuing vexatious defamation action that was unsustainable, Hindi came a cropper - to the extent that Hindi agreed to discontinue the claim, agreed not to commence any action arising out of the publication at all, provided a letter to Mr Watt confirming 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. “HA HA!”.

Thanks Michael, a victory for all professional staff getting about their work.

OLG forced to state the bleeding obvious on employment protection

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Published: Wednesday, 29 March 2017 15:22

Every employee in a merged Council should print out and stick up on the wall subsection 354D and 354F of the Local Government Act.  These are the primary employment protection sections - 354D protecting conditions of employment and entitlements and 354F protecting employees against forced redundancy for three years.

Section 354D provides that an employee at the date of the proclamation “continues on the same terms and conditions that applied to the staff member immediately before the transfer day”.  There is no reference to a time limit.  LGNSW sought general advice on the practical application of these subsections from Anthony Britt, a prominent Senior Counsel, who famously made the observation in an opinion that “unlike some of the other “protections” in Chapter 11 Part 6 of the Act, it is not time-limited and, subject to the exceptions in s 354D (2), freezes terms and conditions that applied to the staff member immediately before the transfer date forever”.  Forever, nothing confusing about that. 

But, for the same reasons we could think it’s important to put procedural fairness in disciplinary procedures because some people just don’t get it, plenty of mischief-makers at the merged councils (a much more polite expression than my preference for “ignorant, bloody-minded, unnecessarily combative or nasty bastards” because I do respect wise counsel) and apparently some of their mischief-maker solicitors, allegedly a barrister but which the Council won’t name, some HR flunkies or, in particular, a Chief Operating Officer, thought they could advance an argument that the three years’ protection in 354F also applied 354D.  Wrong, wrong, wrong.

The only way an employee can forfeit or lose their protections under 354D is if they agree to take a lesser position at a lower rate of pay or if they are made redundant under subsection 354F in May 2019.  No contest, no issue, no argument.  At least, except for those who do want to argue it.

The dreaded three-year limit on 354D protection got a run at a number of councils - Central Coast, Georges River, Inner West and Northern Beaches to name four who should know better.  Both Central Coast and Georges River found themselves in industrial disputes with the local government unions and, like the cavalry to the rescue, the Office of Local Government had to state the bleeding obvious.  

On 20 March they sent advice to all IGMs and Administrators to express the self-evident and make it clear that “employees “must continue to be employed under the same terms and conditions unless they voluntarily consent to the alteration of their terms and conditions (this is not time-limited)”.  Their emphasis on not, was included in the letter.

It was timely because it could be handed up that day in proceedings with Central Coast (the Council which claimed it had a barrister supporting them but they won’t name) and may need to be handed up the current dispute with Georges River.

While Central Coast has now appropriately changed their documentation and approach to acknowledge the “forever” nature of the protection, you have to hand it to Georges River and whomever writes their scrappy, inaccurate and confusing documents, to clarify it in the most brutal and belligerent manner possible.  Georges River made it clear that the employee can continue those conditions “noting that Council intends to terminate their employment on the grounds of redundancy after 12 May 2019”. 

This, of course, is a very bold call, seeing no-one really knows what’s happening in two years’ time, there will be an elected Council in office, there will probably be a new general manager and other staff as well.  Still, when you’re proven to be wrong, no-one much does begrudging as well as Georges River.

LGNSW backflips on decades of cooperation

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Published: Wednesday, 29 March 2017 15:21

It was a triumph for cooperation, shared values and the desire to build an effective and efficient local government when the Local Government State Award was made by agreement between LGNSW and the three unions in 1991.  The new Award was preceded by a skills audit of the industry, funded by the NSW Government and cooperatively managed between the employers and employee organisations, 400 classifications disappeared from five Awards and 11 levels and pay rates were introduced, based on gender-neutral skills descriptors.  Lovely, a great achievement.

In the intervening quarter of a century (yes, it has been a quarter of a century) the parties to the Award have regarded it as a dynamic document which can be adjusted to accommodate the needs of the industry.  When it’s up for renegotiation it gets the repairs and any fine tuning it needs.  Cooperatively, issues that are identified in industrial disputes during the year, imprecision or confusion about interpretation or whatever, all these things get fixed.

Sure, there are some things that require the Commission to bang heads together and get an agreement but by and large the document was made based on goodwill, shared values and cooperation and has been varied by agreement continuing those values, ever since.

But not this time.

We started negotiating the 2017 State Award when we exchanged logs of claims back in September.  Again, the unions made claims based on problems that had existed in the industry over the term of the 2014 Award and off we went in negotiations with the assumption that the quarter of a century of goodwill, co-operation and shared values would continue. But it hasn’t.

As an example, let’s take our claim for twelve fundamental principles of procedural fairness to be incorporated into the disciplinary procedures.  Here is a link to our log of claims if you need to refresh your memory on these principles but the twelve principles were all drawn from case law, decisions taken in industrial tribunals establishing fundamental considerations that should underpin  procedural fairness. With some minor rewording they now constitute a joint–unions claim.

Procedural fairness is the weak underbelly for employers in disciplining and sacking employees.  That’s where the knife invariably goes in during an unfair dismissal and the first and fundamental consideration in any employment tribunal is whether the process was fair.  It’s where employers get it wrong and where many an employee gets away with something that, had it been procedurally fair, they wouldn’t be returned to work. 

But LGNSW takes the view that councils don’t need to provide procedural fairness in an investigation, that amongst other things, councils shouldn’t be troubled by simple rules, well-established as procedural fairness principles - like providing all of the evidence to an employee to allow them to respond properly, allowing an employee to nominate witnesses or others who should be interviewed to support the employee’s position etc.

How can an organisation have two different approaches to procedural fairness?  They support procedural fairness when it comes to looking after councils and councillors but they don’t support procedural fairness when it comes to looking after employees.  Hypocrites of course, but being labelled hypocrites should be the least of their worries as they confront this dichotomy because there are two other serious considerations here for them.

The first is that local government had no guidelines in any Award about disciplinary procedures, rights and obligations on the employer, or rights for an employee.  The first Disciplinary Procedures clause went into the 1995 Award as a result of a claim put up by depa.  At that time the industry had been the subject of a series of unfair dismissal cases where, given the lack of procedural fairness, employees were reinstated so fast that heads were spinning back at the councils.  Something had to be done.  

The agreement at the time was that councils must “properly conduct and speedily conclude” any investigation process.  This should be enough really but councils revealed a range of bizarre interpretations about what constituted proper conduct and what constituted speedy conclusion.   We had a dispute with Campbelltown more than a decade ago about an interminable process that was vigourously defended by the Council as being both competent and timely when it was neither.

As we negotiate the Award the unions are surrounded by multiple examples of councils which simply get it wrong, which deny procedural fairness in an investigation, who withhold evidence, who choose not to speak to witnesses etc. Why wouldn’t it make abundant sense to write the rules down in a legally enforceable way so that a Council knows how to do it and an employee knows what to expect?

The second is LGNSW argues that if the employee being investigated is unhappy about the unfairness of the investigation, then they should file a grievance, or have their union file a dispute for them, but they can only do this by ignoring the welfare of the employee being investigated.  An investigation can be the first time an employee finds themselves in that position in a long career.  Employees are naturally both anxious and fearful of the process and how they will be treated.  Many are afraid of upsetting the Council and it takes a courageous employee already being investigated to compound the awkwardness of the relationship with the Council by filing a grievance or having their union drag the Council into the Commission.  At the very least it compounds the employee’s anxiety and concern.

Employees being investigated want the investigation conducted quickly and fairly.  They don’t want any trouble and they certainly don’t want to be seen to be sticking it up the Council because they want to be cleared to continue working there.

The LGNSW on this is not just unrealistic and hostile to employee welfare, it is perilously close to setting up councils to breach their obligations under the Work Health and Safety Act 2011.

How can an employer, unfairly conducting an investigation that impacts on the health and well-being of the employee because of its unfairness, not be in breach of its obligations to “secure the health and safety of workers and workplaces”?  The legislation is there to protect employees’ health, safety and welfare “through the elimination or minimisation of risks arising from work”, to provide for “fair and effective workplace cooperation in relation to work health and safety”, to “provide a framework for continuous improvement and progressively higher standards of work health and safety”, and all these things under the principle that workers should be given the “highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work”.

Being hypocritical is one thing, setting up circumstances that compromise health and safety for employees in an investigation is another. 

Let’s just write the rules down in the Award.  It would mean that councils won’t find themselves in the Commission for breaching procedural fairness and employees will get fair processes and an acknowledged regard for their well-being.

Conciliation on the outstanding issues continues...

It’s hard not to feel sorry for Gladys

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Published: Wednesday, 29 March 2017 15:21

Walking into the job of Premier after Mike Baird chose his time to smirk his way out of it was, for Gladys, just like walking into an empty lift after someone had farted in it as they got out.  Two months later and the fart still hasn’t cleared.

Mike Baird left her quite a legacy: WestConnex and its destruction of heritage houses and lifestyle as it cuts a swathe through the inner west, and its underlying 20th century approach to ignoring public transport and focusing on the private car; the belligerent focus on removing restrictions on planning to focus on development; fantasising at privatising nearly everything; the government’s own developer body ignoring environmental and heritage considerations and the legacy of an ordinary process used to justify amalgamations.

But it’s the issue of amalgamations that makes us feel the most sorry.  It never made any sense to treat a report by KPMG on the claimed financial advantages of rationalising Council boundaries as some kind of secret document.  We know that it has flaws in its analysis - for example, when it calculates the cost of job losses over time it does so based on redundancy benefits under the Federal Award which provides lesser entitlements than the more generous payments under the State Award – but who knows what else it provides and how it would survive a close-up test, or even the pub test.

And considering that the Government loses cases on amalgamations brought by unhappy merger targets solely because of the absence of procedural fairness, it would have made sense to get the process right from the start.

LGNSW seized upon this week’s Court of Appeal victory for Ku-ring-gai with observations reinforcing the importance of procedural fairness and the folly of making decisions without access to all of the facts.  Everyone wanted the release of the KPMG report since it was first announced.   “This is what we’ve been saying all along”, said the president of Local Government NSW, Keith Rhoades.  “They still have not released that report”, said Councillor Rhoades.  “And I don’t think they will - I don’t think it will stack up the way they want it to”.

We couldn’t agree with Keith Rhoades more.  It never, ever makes sense for decisions to be made that will have an adverse impact on others without the process being rigidly procedurally fair - to the extent that often it’s important to have those rules written down.  If they’re not written down, they can be implied and the Court of Appeal relied upon the implied concepts of procedural fairness to hand the win to Ku-ring-gai. 

What a pity that the President of LGNSW is not quite so strident about the importance of procedural fairness when it comes to how his organisation negotiates the State Award...

What would Mike Baird have done?

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Published: Wednesday, 15 February 2017 14:48

Well, it’s unlikely he would have done that.  It was a Baird-investment banker policy all along with bigger councils providing easier access for developers and, while Premier Gladys reinforced the importance of mergers in the Sydney metropolitan area for fewer barriers for developers and more affordable housing (oh no, not again), we can’t help but think the ex-Premier will be disappointed.  

We didn’t really get a chance to farewell him although we have remarked in a number of issues about his hostility to century-old institutions like the Industrial Relations Commission, the Anzac Fig trees at Randwick and Federation housing wherever it might get in the way of WestConnex, but again we really couldn’t say it any better than the incomparable Elizabeth Farrelly in the Sydney Morning Herald on 27 January:

"Baird’s administration was like the worst kind of husband: controlling, humourless and puritanical, ultra-straight, ultra-dull, ultra-male.  Chainsaw Mike.  Bulldozer Mike.  Motorway Mike.  The Baird years were all boofheads and bulldozers, pinstripes and steel caps. Demolish, concrete, consult, in that order.”  Full article here.

The incoming Premier should take that as a warning shot across her bows.

Uh oh ...

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Published: Wednesday, 15 February 2017 14:48

NSW Deputy Premier and Premier yesterday

NSW Premier Gladys Berejiklian yesterday announced that the proposed local government mergers would only proceed in those areas she could comfortably drive to and get a decent coffee.  Reprising the Eva Gabor role from the 60s television series Green Acres (and making the role her own) the Premier announced that those amalgamations proposed outside the metropolitan area would now not proceed.  

While it’s easy to observe that the Premier should get out more  (because you’ve been able to get a decent coffee the other side of the Great Dividing Range for over a decade and places like Orange, have a thriving wine industry and great restaurants and cafes to boot - there is no Sydney-centricity in the depa office), the quarantining of regional areas and the bush generally sets up a very hypocritical approach to what should be an issue of public policy and the efficient delivery of local government services.  The Government will struggle to get over this.  

Clearly what’s good for the goose, is not necessarily good for the gander, in a Berejiklian/Barilaro New South Wales.

Smiling even more than the Premier was Deputy Premier John Barilaro.  Not only triumphantly delivering on a National Party policy of no forced mergers in the bush (but conveniently leaving alone the forced merger of his hometown Queanbeyan with Palerang) he was able to cleverly disguise his hammer lock on the Premier at the media conference in Parliament House yesterday.

If the bookies are right, the High Court will reject Woollahra’s application for leave to appeal later this month and Woollahra will have to merge with Randwick and Waverley, Hunter’s Hill will merge with Lane Cove and Ryde, Mosman with North Sydney and Willoughby and Hornsby and Ku-ring-gai.

You can see yesterday’s Media Release here and an up-to-date summary of those new councils that started in May 2016, the proposed Sydney mergers subject of the decision of the courts and those that won’t proceed from the NSW Government’s www.strongercouncils.nsw.gov.au

Next month ...

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Published: Wednesday, 15 February 2017 14:48

And more.

The sharks are circling

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Published: Monday, 23 January 2017 13:28

It’s hard to get motivated in January, isn’t it.  Hot, sunny, lazy days stretching out, holidays and no work, the beach, sultry nights, who doesn’t like summer?

But each year the media feels obliged to remind us that every time we go to the beach, there are sharks out there, hungry, circling and thinking how delicious we look.  But notwithstanding a bit of a surge in shark attacks locally in recent years, there is a better chance of being killed or injured driving to the beach, particularly if you’re driving on holidays.

There is also a better chance of being killed by coconuts falling on you, bee stings, pushbikes, your pet or someone else’s, cows, mosquitoes, champagne corks, or your wife or husband.  And whatever you do, keep away from hospitals – they are really dangerous places. Even DIY at home will get you before a shark will. 

They reckon the chance of being attacked by a shark across the globe is a one in 3,748,067 chance.  There is a much, much higher risk of some stupid daggy politician trying to kiss your baby.  So if you restrict your concept of shark to being the famous sea-bound predator, the chances of a shark ruining your life is pretty low.

But let’s talk about real sharks - rapacious, life-threatening, environment-ruining, craven, hungry, gluttonous, voracious but insatiable and threatening your quality of life, then summer not only brings with it shark stories, but the usual government commitment to fix planning.  Oh no, not again?  Because it’s in planning and development that the real sharks circle.

The announcement by Planning Minister Rob Stokes a couple of weeks ago to make amendments to the EP&A Act tried the three card trick - making housing easier to build, so there’s more of it and it’s more affordable.  Haven’t we seen that before?

But when it’s accompanied by rabid support from the white shoe brigade in the Property Council, the Urban Task Force and the UDIA, then we’d better look out.  They are three organisations never happy to accept the idea that planning instruments are primarily there to ensure that communities are protected and the public interest preserved when developers see a vacant site and get all hot and excited about building something monstrous on it to make themselves a motza, but always under the guise of doing everyone a favour.

We can’t do any better than providing links to two great articles that say it all so much better than we could.

First, the brilliant and incomparable Elizabeth Farrelly in the Sydney Morning Herald on 14 January under the heading “Call me a cynic, Sydney’s planning changes just won’t deliver” - not only a beautifully written opinion piece but a constructive and thorough defence of the primacy of the public interest.  If only all opinion pieces and commentary was as good as this.

Second, and on a smaller and more accessible scale, is an article also from the Herald on 18 January by Jacob Saulwick - addressing the inconsistency of the Government’s commitment to better design while at the same time proposing two-storey terrace housing to be included in complying development - without any consideration to the other aspects of Victorian development that make terrace housing compatible and socially welcoming like lane ways and parkland and in a way that would remove any consideration from the community of design.

In January we’re allowed to draw upon the incomparable and compelling contributions of others and contract out our arguments.