Better than Nostradamus

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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

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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?

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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?

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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?

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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?

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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 ...

Next month …

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Published: Wednesday, 26 August 2015 09:30

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 but maybe one or two good news stories as well - certainly, one absolute ripper …

Uh oh, look out!

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Published: Tuesday, 25 August 2015 17:51

It may not be the most attractive analogy, but let’s face it, if you’re walking and a dog has left a deposit on the path in front of you, you can tell what it is immediately. You don’t need to examine it up close, test it with a prod, or a sniff, or how it feels under your shoe to seek further information.

It’s a dog poo, and you should avoid it.

So, when we discovered what the Office of Local Government has in mind for changes to the employment provisions of the Local Government Act to coincide with potential amalgamations, we didn’t really need to wonder too much what it was.

The OLG has proposed that “a set of topic based information papers will be published electronically setting out the details of the proposed changes and the rationale for them” in October but we can call it now - look out, you don’t need to examine it up close, give it a prod or wait for some miscreant in the Office of Local Government to prepare an information paper to tell you that you can happily step in it.

We know that the Government wants changes to the Local Government Act in place and probably new boundaries in time for the local government elections in September 2016. We also know that the Minister for Local Government has assured the unions that whatever happens, employees will remain employed under the Local Government State Award. But it was not until what was intended to be a confidential document prepared by the OLG was tabled by a witness before the Upper House Inquiry into local government, that we discovered how bad the things were that we didn’t know.

By marvellous misadventure and a lucky question, USU northern Manager Stephen Hughes was asked by Standing Committee member David Shoebridge whether he was aware of any proposed changes to employment being contemplated as part of the reform process and, by enormous coincidence, he did.

He had come from a meeting of the Ministerial Advisory Group that morning (LGNSW, LGMA and the USU) where a document prepared by the Office of Local Government and titled The Development of the new Local Government Act Phase 1 Amendments”, had been circulated. Unwise to tell porkies to a parliamentary committee, Stephen had no option but to acknowledge he did and when asked if he had it, because he had come straight from MAG, he did. And it made its way into the official documentation tabled to the Committee.

If the OLG wanted to do things in secret, it would have been smarter not to give anyone that document until the Standing Committee had finished its public hearings.

You can see what’s in the document using this link.

Read more ...

depa’s submission to the Legislative Council Local Government Enquiry

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Published: Thursday, 30 July 2015 14:03

The Legislative Council has established a General Purpose Standing Committee to enquire into Fit for the Future and the potential for local government reforms including compulsory boundary changes. The final report is due on 24 August.

The Committee will consider a range of issues which are relevant to the interests of employees in the industry - including “evidence of the impact of forced mergers on municipal employment, including aggregate redundancy costs”.

This is a perfect opportunity to develop and enhance our policy view in an expanded version of the article we ran in May’s depaNews. And a good opportunity to get our Dirty Harry/Mike Baird image and mischief to a wider public.

Here is our submission.

A message to the Minister and the Office of Local Government

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Published: Thursday, 30 July 2015 12:59

Sack councillor Jilly Gibson

Local government is an industry with a significant focus on regulation. That’s what our members do. If councils didn’t properly regulate, if they sat on their hands or looked the other way, communities and the government would be up in arms and do something.

The Minister for Local Government and the Office of Local Government have, since 2013, been sitting idly by as spectators and watched the unfolding dysfunctional fiasco at North Sydney Council. A mayor elected by the electorate rather than by the council, Jilly Gibson, has one supporting councillor and nine councillors who are opponents. If “irretrievable breakdown” is a suitable ground for the dissolution of a marriage, it should also be suitable grounds for the suspension or sacking of a Council. Or one or more of its councillors.

The risk with a mayor elected by the entire electorate, as opposed to a mayor commanding the support and respect of a majority of the councillors, is that there may well be occasions when the mayor simply doesn’t have the numbers. At North Sydney, the mayor never has the numbers - whether that’s an issue about relocating and renovating offices, mentoring programs for young people, representing the Council on regional boards, keeping a mayoral car, the appointment of the general manager or whatever, it’s normally 8 - 2 with the mayor the loser.

A mayor elected by the electorate commands no greater authority nor respect than one elected by the other councillors. Yet councillor Gibson behaves otherwise – asserting that there is some greater authority, or credibility, that derives from getting a majority of those who can be bothered to vote. The Act doesn’t support councillor Gibson’s opinion.

We’ve had far too much involvement in the breakdown of the relationship between the mayor and the councillors and the mayor and the general manager. It’s a mess, we’re mad as hell, and we’re not going to take it anymore.

But not so the Minister or those in the Office of Local Government, who sit and watch the debacle unfold - happily comfortable on the fence with the pickets in places that most of us would find unpleasant and unbearable.

In 2014 the Minister required the Council to show cause why they should not be suspended. The competent, rational and effective majority got their individual acts together and were able to convince the Minister that they shouldn’t be suspended and, as a fall-back, the Minister issued a Performance Improvement Order under section 438A of the Local Government Act. Things should have been done by April but the Minister begrudgingly agreed to an extension of time.

Amongst other things, the PIO required two conflict resolution processes to be undertaken - one between the mayor and the councillors and one between the mayor and the GM - the two key relationships that have broken down. And it won’t escape observation that the only thing common to both dysfunctional relationships is Jilly Gibson. A timeframe was provided, the processes began but no resolution or compromise could be agreed in either.

So, when the Minister’s deadline expired on 22 June, the Council advised the Minister that the requirement to conduct the process had been satisfied but the processes themselves had failed.

That’s five weeks ago and in the intervening weeks these things have happened:

• The mayor had two Code of Conduct findings of misconduct made against her. The first related to defamatory allegations and the investigator found, and the council required, that the mayor apologise. The deadline for the apology has expired and there is no apology.
• The second of the Code of Conduct misconduct findings related to confidential information and resulted in the council censuring the mayor on 19 July.
• The council also resolved to note other things as well - expressing their “increasing concern” that this was the third finding of a significant breach of the Council’s Code of Conduct by the mayor and their “grave concerns” that the OLG “has failed in the past to provide serious sanctions”.
• The resolution at part 5 deals with the “duty and obligation of the Office of Local Government to promote public confidence in the Code of Conduct, the Local Government Act and good governance in local government generally”, something which is clearly not evident at North Sydney.
• That week the local rag, a compliant conduit for the mayor, announced under the heading “Mayor shoots back at council” that the mayor would now seek whistle-blower protection after the two misconduct findings against her – claiming there was a “vexatious political campaign against her” and “misuse of the council’s code of conduct provisions for political purposes”.

North Sydney finds itself in a dreadful position. It is already, by statistics compiled by the Office of Local Government, the second most complained about Council in New South Wales, the relationships between the mayor and the councillors and the mayor and the GM are dysfunctional, the conflict resolution processes required by the Minister under the performance improvement order have failed and findings of misconduct and breaches of the code of conduct continue.

The Mayor has borrowed the Emperor’s new clothes. There is no cloak of respectability or authority provided by “popular” election and the democratic process means that if you don’t have the numbers on the Council you don’t have the numbers on the Council. Behaving otherwise puts all of local government, those who are elected to it and those who work for it, in disrepute.

The Minister under section 440I can suspend councillor Gibson and should do so immediately.

While the rest of the industry is jumping through narrowly-focused fiscal hoops to survive to the future, councils are given 40 days to comply with a variety of directions from the Minister, instant action to restore the credibility of local government at North Sydney must be taken now.