We file section 106 for the unfair sacking at Mid-Western

Details

Published: Wednesday, 28 October 2015 10:03

Sacked without good reason, sacked without any reason, sacked without the opportunity to put up a defence and sacked during an ICAC investigation where the majority group of councillors wanted the director of planning’s head on a plate. Dutifully that head, and the head of another director, were delivered by the GM in the first sackings without explanation in the second level of management in local government’s history.

An inglorious historical first for GM Brad Cam. Something that won’t appear on his CV, you can be sure.

As foreshadowed in the last issue, depa believes that the standard contract is unfair to senior staff employees. And the circumstances at Mid-Western leave much to be desired in terms of fair treatment.

The section 106 application came on before the Industrial Registrar this morning.

The employers had filed a notice to strike out the application for want of jurisdiction and other issues, and this will be referred to the President to be allocated for determination next month.

NSW Government to shut down Industrial Relations Commission

Details

Published: Wednesday, 28 October 2015 10:00

Two years ago the O’Farrell Government reviewed and consolidated a number of tribunals into an expanded NSW Civil and Administrative Tribunal. At the time they contemplated the possibility of also folding in the Industrial Relations Commission but, in the face of united opposition by both employer organisations and unions, decided not to do so.

The IRC is currently a shadow of its former self. Understaffed, most awards now operating in the Fair Work Commission, Crown employees restricted by the 2.5% public sector pay policy, the unnecessary loss of good talent and a reduced and ageing workforce, the Commission has shrunk and the Government has been reluctant to make permanent appointments to replace them. Bit of a shame they got rid of that talent, looking back.

The Court of Arbitration was established in New South Wales by the Industrial Relations Act 1901, the Industrial Court was established by the Industrial Disputes Act of 1908 and the Court of Industrial Arbitration was established by the Industrial Arbitration Act 1912. These were the antecedents of our current Industrial Relations Commission and it has performed these roles continuously ever since.

Section 19 of the Industrial Relations Act requires the Commission to review all of its Awards to ensure that they are current and not old-fashioned or obsolete. On 14 October, 60 or so State Awards were listed for consideration to ensure that they were up-to-date. The Local Government State Award and the Sydney City Council Award, both made by the current President of the IRC Justice Walton last year, were also reviewed. So we were there, defending our turf.

It was standing room only in the Commission for the captive remnants of what had been the pre-eminent industrial tribunal nationally. But, with virtually all but Crown employees and local government now wrapped up in the Fair Work Commission, many of those present were conscious of the rumour, from multiple and varied sources, that the Government had already decided that the historic and esteemed Commission would be split in two - with its judicial role going off to the Supreme Court and the non-judicial functions being blended into NCAT.

And, conscious of the rumour, it was observed that this was a great housekeeping opportunity for the Commission to clean up before the move, to ensure before handing over that everything was up-to-date and modern and, similarly, it would be a good opportunity for the Government to announce that the move was going to happen, because all of the organisations involved in the NSW jurisdiction were present, in one form or another, in the proceedings and would be slow to march on Parliament house to complain.

But the Government sat quietly and it’s hard to know whether the handful of remaining members of the Commission (and in a month there will be only one judicial member left and that is the President) were even aware of the rumour themselves. After all, who would be game to ask them?

But a rumour from so many disparate sources, and reading between the lines, we’re pretty damn sure that later in the year this will be announced and the glorious venerable days of the NSW Commission will sadly be over.

The Supreme Court doesn’t handle industrial matters although there are couple of judges in New South Wales with industrial relations experience who could do so. But, if the Government goes ahead and does this, we're in trouble in local government - the awards and enterprise agreements of the industry have always been awards and agreements of the NSW IRC. The IRC has been (usually) the most user-friendly of the industrial tribunals and one not afraid to make precedents that have, in turn, flowed into the Federal system.

This will be a terrible day. And unless we are very much mistaken, that day will come by the end of the year.

Anyone there?

Details

Published: Wednesday, 28 October 2015 09:58

The publication of the September issue of depaNews was followed some hours later by the resignation of the CEO of the Office of Local Government, Marcia Doheny, less than six months into the job. Coincidence only, we are sure.

We have been very critical of OLG and the Minister for their lack of action. OLG has been nothing more than an organisation that keeps notes of bad behaviour by councillors and apparently keeps them somewhere, and the Minister, having issued, for example, a Performance Improvement Order at North Sydney which failed, really had no backup plan.

Now OLG has an acting CEO from outside the industry, has lost key staff to Premier and Cabinet where the real action is coordinated with the reform agenda and has advertised an office full of vacancies in the last few weeks.

All that means that if it were ever going to do something, to remedy its dysfunctionality and incapacity to use its resources for constructive purposes, it won’t be doing it this year.

Mixed reception to IPART Report

Details

Published: Wednesday, 28 October 2015 09:50

When the Premier announced the release of the IPART report on Fit for the Future on 20 October, councils were given a deadline of 18 November to respond. Our email to members the following day urged you all to relax but noted that there were plenty of opportunities for panic here.

Hysteria, the desperate and the dateless, musical chairs, nothing to worry about and waiting for a miracle pretty much summarises the range of the industry’s response.

Like a call for “last drinks” at a drunken event for desperate singles, those who didn’t have their arm around someone already, or an eye on a potential partner, started to look around at what was left. Gee, if you amalgamate with Auburn does the Deputy Mayor come too? If you amalgamate with North Sydney can you do it and remove the capacity of the electorate to make a practical joke of it when they vote for the mayor? If you amalgamate with Mid-Western can you wait until ICAC has woken up and nailed some "persons of interest"?

There is no doubt that the Government is committed to the largest and most dramatic shakeup of local government in its history. Sick of decades of encouragement and hoping for the best, the Government has a firm commitment to a process that had an independent Review with its own recommendations, then developed its own essential criteria to determine pass or fail, then forwarded those criteria and council responses to IPART, that is the Independent Prices and Regulatory Authority, for IPART to analyse councils’ responses to both the independent review panel’s recommendations and the fitness criteria. And now IPART has done precisely what the Government has asked it to.

Time is running out. The Government won’t now backtrack and start again or retrace its steps. They’ve put themselves in a position where they really can’t. Their approach has been logical, consultative, broadcast with sufficient warning for their intention to be clear and the game is now on.

And it’s about time. As our focus is primarily about protecting and improving working conditions in local government, anything that removes poverty-struck councils which can’t afford to pay market rates to replace staff, or to have sufficient staff to properly cover leave and accommodate part-time returns for parents or to send people to training and all that, has to be a good thing.

The Premier’s bold boast at the LGNSW Annual Conference that many of the councillors wouldn’t be there next year may have got up their noses, but realistically, how many councillors do you know that you would actually employ yourself? Bugger all, or none?

We’ve all seen more than enough bad behaviour by councillors. Both generally and in the current extraordinary circumstances of unprecedented bullying and harassing general managers, senior staff and others doing no more than trying to get the job done, to think that a good dramatic culling of the talent is grossly overdue.

And Governments understand that with hindsight, they are more likely to regret not going hard enough than having gone too hard.

How will employees fare as the dross is culled?

Every employee in the industry should have a look at the employment protections provided in Part 6 of the Local Government Act. Here is a link, just to make it easier.

The heading of Part 6, “Arrangements for Council staff affected by the constitution, amalgamation or alteration of council areas”, should be enough. It’s clear that the protections are there for every non-senior staff employee, regardless of whether a Council is joined together with another Council, pieces of one Council are hived off to another, or where an entirely new council is constructed from parts of others or whatever.

The eight sections of Part 6 set out these arrangements.

For the time-poor, sections 354C and 354F are the critical ones that provide the protections against redundancy. Here they are:

354C No forced redundancy of affected staff members during proposal period

The employment of a member of staff of a council that is affected by a proposal (other than of a senior staff member) must not be terminated, without the staff member’s agreement, during the proposal period on the ground of redundancy.

354F No forced redundancy of non-senior staff members for 3 years after transfer

If a staff transfer occurs, the employment of:

(a) a transferred staff member, and

(b) in the case of a boundary alteration:

(i) a remaining staff member of the transferor council, and

(ii) an existing staff member of the transferee council, other than a senior staff member, must not be terminated, without the staff member’s agreement, within 3 years after the transfer day on the ground of redundancy arising from the staff transfer.

Once you’ve read those critical sections, you can choose one of the illustrations at the beginning of this article. Hint, choose Alfred E Neuman.

Unless you are a senior staff member, or a GM, and then you have a choice of five. (But we are doing something about ensuring that senior staff members effectively made redundant in any amalgamation process will have that 38 week payment taxed as a redundancy.)

Better than Nostradamus

Details

Published: Wednesday, 30 September 2015 13:14

We got it right last month when we picked that the Minister for Local government was playing local government reform a number of moves ahead, like a good chess player, so that communities would welcome the sacking of councils with badly behaving councillors. We concluded that issue of depaNews by predicting the following for “Next month”:

Probably more councillors behaving badly, maybe some ICAC action at last on the appalling things happening at Mid-Western, probably more inaction from people we rely upon to properly regulate the industry and maybe one or two good news stories as well - certainly, one absolute ripper...

Well, how did we go?

More Councillors behaving badly

Tick. It’s hard to know where to start and where to finish. North Sydney Mayor Jilly Gibson launched herself into local rag the Mosman Daily misrepresenting herself and her partner as victims of a council resolution and a solicitor’s letter to the partner requiring that he improve his behaviour at council meetings.

Notorious for shouting interjections and the Mayor equally notorious for not dealing with this unruly behaviour because he is her cheer squad, his behaviour includes personal and misogynous observations to woman councillors. And, of course, the standard allegations and attacks on the GM for things that are not the GM’s responsibility. Why spoil a good story (as far as the Mosman Daily goes) with the truth.

Clearly it suits the Minister to have these blowflies spoiling the picnic and laying eggs in everyone else’s food.

Rather than just list a series of councils it’s enough to note that Local Government NSW has taken the unprecedented step in their Weekly Circular of 11 September to remind their members that they have obligations to staff under the Work Health and Safety Act.

The LGNSW advice coincides with unprecedented harassment and bullying by councillors of general managers and other senior staff. That LGNSW needs to remind councillors that, just as the law applies to company directors, councillors have obligations and can be brought to account as well. How could it be any other way and what does it say about some of those boofhead councillors out there that LGNSW needs to get advice from a Senior Counsel and put it in their General Circular?

All councillors, and even their cheer squads, goons and minders need to be a bit more careful.

LGNSW might have recognised and responded to this unprecedented level of bullying and bad behaviour but even they could not have anticipated what happened this month at Mid-Western.

Mid-Western GM sacks two directors - and one of them was ours

Details

Published: Tuesday, 29 September 2015 11:45

On Wednesday 14 May 2014, officers from the ICAC raided the Council offices and the home of a Mudgee councillor. The SMH reported this followed allegations of conflict of interest involving land subdivisions owned by Councillor Max Walker and the Mayor Des Kennedy.

The community had watched the Council override its own strategic land use plan approved by the Planning Department in 2011 on minimum block sizes in a subdivision where Councillor Kennedy was a part-owner and which dramatically increased the subdivision’s value.

The investigation continued, poorly resourced, until two investigators spent a week in Mudgee in the second week of August interviewing eleven witnesses. This included the two longest serving directors and one of them was the Director of Development.

It was notorious in the organisation that the majority group of councillors surrounding Kennedy and Walker believed that staff in the planning area had been the whistleblowers. The GM had been told by one councillor that they believed the Director was the whistleblower.

Two weeks after the ICAC interviews in Mudgee, GM Brad Cam sacked the Director of Development and the other Director under clause 10.3.5 of the standard contract for senior staff. This is the provision that allows the contract to be terminated with 38 weeks’ notice for reasons other than legitimate reasons for terminating a contract like unacceptable behaviour or poor performance.

It is the provision used regularly after local government elections where an incoming different power block sacks a GM without disclosing the reasons for doing so.

The decision of the GM at Mid-Western can only be seen as reflecting the view of the majority councillors and their ultimatum to him that it’s the other directors or him.

And it’s action which creates a precedent where, for the first time since the introduction of standard contracts, directors have suffered the same political sackings as GMs.

It prostitutes the principles that underpin the public sector generally that employees of a public authority are there solely to provide advice without fear or favour. It’s part of the protections against political decision-making that underpin the Westminster system but at Mid-Western those principles have been abandoned, dramatically, during an unfortunately slow and under-resourced ICAC investigation.

No employees in local government, regardless of their position, should be vulnerable to being sacked for political reasons. The community can have no confidence in the impartiality of the system if those who administer health, building and planning legislation can’t do the job without fear of the repercussions from councillors with pecuniary and other interests in development.

No employee in local government should be sacked during the course of an ICAC investigation into those with the power to sack them.

These are deficiencies in the standard contract, not acknowledged by the OLG in the 2014 Standard Contracts Working Party where the OLG argued that employment in local government at a senior level is identical in all respects to senior level employment by the State - something demonstrably untrue and clearly evident from LGNSW’s unprecedented response trying to correct Councillor behaviour, the harassment of the GM at North Sydney, the suspension and sacking of the GM/Pizza Man at Hurstville, the stress leave of GMs and harassment at many, many other places.

The OLG, typically, has taken lots of notes, the ICAC, 16 months down the track is continuing the investigation and is unable to protect employees interviewed whether they want to be interviewed or not, and our member, a highly regarded planner with the interests of the community at heart, the support and confidence of her staff and with a high reputation for her integrity and capacity amongst her peers and fellow professionals across the state, has been sacked while the regulators observe.

It’s simply not good enough.

Our fearless prediction that this month we may have seen “some ICAC action at last on the appalling things happening at Mid-Western” was wrong, but unlike Nostradamus, we live to fight on and to do something about it.

We have already raised with ICAC staff the importance of there being some protection for local government employees when councillors or more senior employees of the organisation are subject to an ICAC investigation. This will be formalised in the weeks ahead.

But is anyone going to look after senior staff?

In such a hostile world, who wouldn’t want a guardian angel?

Details

Published: Tuesday, 29 September 2015 11:39

It would be nice if we could rely upon the concept of a guardian angel, keeping an eye on us when we need it and keeping us out of trouble. Awards and industrial instruments of the Industrial Relations Commission and access to the tribunals for disputes over other industrial issues is one way of having protection and security at work. We won’t labour the imagery any further lest it give those remaining members of the IRC an unseemly level of reverence.

The NSW Government in developing the 1993 Local Government Act liked the idea of excluding senior staff from protection and coverage by awards or enterprise agreements and section 340 of the Local Government Act, on the face of it, was intended to deny senior staff access to any of the protections normally available to employees.

But, not so fast. The IRC has determined that it retains the power under section 106 to declare unfair contracts void or to make orders varying them.

That means it would be open to the Commission to make orders varying the standard contract to ensure that no senior staff employee is sacked without proper process allowing the employee to respond and defend themselves.

We are going to look after senior staff, we know so too will the other unions, but this shouldn’t be something that the unions have to do. This is something that should be done by Government. A general collaborative view from the Standard Contracts Working Party that no contract should be terminated under 10.3.5 without proper process allowing the employee to respond has been ignored by OLG.

As we have observed to some of the Minister for Local Government’s staff, while we might have different views about the principles of employee rights at work, no-one would support the political sacking of people doing the job properly. It diminishes public confidence in local government at a time when the public deserves more.

The Phase 1 recommendations for the future of local government reported last month mean that the OLG is recommending more senior employees should be placed on the standard contract. The OLG wants to remove the discretion for councils to determine what staff should be senior staff so that all councils will properly reflect OLG’s anachronistic, myopic and prejudiced view of local government employment.

And, remembering that in 1993 when the Act was first made the DLG wanted to make employees above the minimum rate for band 4 level I of the Award senior staff (currently “remuneration” of $86k) then there are implications here for many employees far, far lower in the organisation.

Section 106 Unfair Contracts of the Industrial Relations Act provides a power for the Commission to declare unfair contracts void or to vary them to remove the unfairness. Orders can be made virtually without limit. The Commission can make orders on contracts that are unfair because they don’t provide protections to stop unfairness - like being sacked without good reason, or for political purpose, or without taking into consideration personal or family circumstances etc.

We’ll have more to say about this in October. Suffice to say that a fair standard contract with appropriate protections would have prevented the Mid-Western political sackings and the community could rely upon continued impartial protection of planning instruments, communities and the environment against any onslaught of developer-driven councillors.

Any action from people we rely upon to properly regulate the industry?

Details

Published: Tuesday, 29 September 2015 11:35

The OLG has been pretty busy and is probably still stinging from it’s embarrassing performance when it attended Budget Estimates with the Minister on Friday 4 September. You’d think, wouldn’t you, that if you were going to turn up at a meeting of the Budget Estimates committee, when your political opponents have the opportunity of examining your budget proposals, that there would be certain documents you might take with you and have safely in your possession.

We all make mistakes, and it’s good to be forgiving, but here is the transcript:

The Hon. PETER PRIMROSE:

I refer to page 8-36 of Budget Paper No. 3 and specifically the revised figure for investment revenue for the last financial year of $387,000. The amount listed for this year is represented by three dots. Can you please explain what this item is and why there is no revenue expected this financial year?

Mr PAUL TOOLE:

I will ask the chief executive if that information is there in front of her.

Ms DOHENY:

The information is not in front of me but I will take that on notice.

Mr DAVID SHOEBRIDGE:

So did you come to budget estimates without the budget papers?

The Hon. PETER PRIMROSE:

I am happy to provide them, Minister.

Mr DAVID SHOEBRIDGE:

Did you come to budget estimates without the budget papers?

Mr PAUL TOOLE:

We said we would take it on notice and we will provide that information.

Mr DAVID SHOEBRIDGE:

You came to budget estimates without the budget papers.

The Hon. SCOTT FARLOW:

The Minister is trying to provide an accurate answer to the member.

CHAIR:

Order! It is the Hon. Peter Primrose's time, Mr Shoebridge

Hilarious, you can almost hear David Shoebridge cacking himself.

While the apologists might like to describe this as a political question, go into denial and try to ignore the dreadful response, the incapacity to answer a simple and basic question about a gap in the financial statements for which you as Minister or CEO, are both responsible, is hard to comprehend.

Nothing from the Minister, nor the Office for Local Government on North Sydney nor Mid-Western but, at last, one councillor has been suspended! It’s about time, it’s been a couple of years otherwise and there is no point introducing a punitive regime that relies upon a limit of three suspensions to be banned, if no one ever gets suspended. The Minister doesn’t bother suspending anyone, even though he is clearly surrounded by dozens of likely candidates.

Apart from some boofhead at Narrabri who was suspended by order of the Chief Executive Office of Local Government Marcia Doheny on 29 May. Two years ago (yes, two years ago) on 13 September 2013, this dope slapped a Council employee across the buttocks “while making comment and laughing”. Now he has been suspended for two months. He would probably regard that as a badge of honour.

Whether Budget Estimates was embarrassing or otherwise, and whether OLG is resting on their laurels for suspending some boofhead for two months at Narrabri for an offence that took place two years earlier, the OLG took off with the threat to suspend Hurstville Council for sacking their GM (yes, Pizza Man) having been suspended since May - a threat so effective it would appear, that the Council immediately resolved to reinstate him.

But he had been suspended since May for what, on the face of it, looked like nothing more than trying to have the Council deal with its responsibilities on a property owned by the Mayor.

So, that’s a tick for our prediction of continued inaction by the regulators.

And what about one or two good news stories?

Details

Published: Tuesday, 29 September 2015 11:29

Of course there are good news stories. Gosford City Council has finally reached agreement with the USU, LGEA and depa over a long-standing and, by their own admission, poorly handled attempt to remove the 4% bonus payment that has been part of the salary system for 20 years.

Facing three days of arbitration at the end of this month and October, and a pretty damn good (even if I say so myself) witness statement rebutting everything the Council was putting in their evidence, agreement has now been reached to preserve $1.95 million of current spend on performance reward in an ongoing way, increased by award increases into the future. An arrangement that will see any money not spent during the performance year rolled over to the following year.

And as part of the deal, a 2% ongoing payment each year as a staff retention bonus. So, that’s another tick.

Pretty accurate predictions then last month. Try harder Nostradamus, go hard or go home!

But the absolute ripper is this …

Why is the Office of Local Government protecting Jilly Gibson? Or is the Minister thinking a few moves ahead?

Details

Published: Wednesday, 26 August 2015 13:16

There’s never a dull minute at North Sydney. Last month we ran through the litany of disgraceful and embarrassing things that are happening and it just continues. We hoped, in calling for the sacking of Mayor Jilly Gibson, that the OLG and the Minister would do something. And we are not the only organisation calling for something to be done either - as we understand it, everyone is pressing both the Minister and the OLG to do something. But what’s happened and what have they done?

On 17 August we received a letter from the Chief Executive OLG, Marcia Doheny, referring to our emails of 23 and 24 July about North Sydney Council and saying this:

“I appreciate that this is a difficult situation for all parties involved. However, all individuals have a responsibility to ensure that working relationships are productive and professional despite any personal differences that may exist.”

What? Code of Conduct findings, misconduct, Council resolutions to apologise, a censure resolution by the Council, failed conflict resolution processes that make the Minister’s Performance Improvement Order a joke, a failure to disclose an interest etc etc etc, and all of it only “personal differences”?

We were disappointed. Here’s our response.

On the same day the OLG send us this letter, the Council met (with a furiously note-taking OLG manager in the gallery) and things didn’t get any better. Procedural abnormalities as the Mayor refused to accept dissent on rulings and closed the meeting to resume 10 minutes later and then the Sydney Morning Herald revealed on 19 August, what appeared like the Mayor having failed to disclose an interest over the building of a road to a house across a public reserve - a house that is owned by two people whose signatures appeared in the hundred signatures of members to allow Mayor Jilly Gibson to form a political party. While the Council supported the road, some councillors sought to rescind that approval having discovered the link between the Mayor and the two members of her political party.

Then there was some to-ing and fro-ing about whether the signatories had really signed (if they hadn’t, who had signed on their behalf?) and then resignations from those people from the political party, as if that removed the need to disclose an interest. Then, somewhat hilariously, three days after the meeting the Mayor did disclose the interest. That’s a first, a retrospective disclosure. And the Mayor wanted the retrospective disclosure incorporated in the minutes. What a farce.

What would need to happen as local government is dragged further into disrepute, for the OLG to think it would be appropriate?

Read more ...