Who has the worst HR in local government?

Our December issue and our prestigious awards are enthusiastically anticipated by the industry (and sometimes dreaded by those responsible for unacceptable HR practices) and the December issue will, as usual, publish the 2020 Awards.

And our usual end of year good wishes, the last family pic with Santa (that’s a relief) and news about our closure over Xmas/New Year.

It will also provide a proper farewell to Margaret Bayliss who has been our highly compatible and effective Office Manager now for close to seven years. Margaret has decided to retire at the end of the year. And we can introduce you to our new Office Manager.  

Just as well we can play a long game

We began the year with this heading and historic graphic from the May 1987 issue of our dear old tabloid Health Surveyors’ News, just to remind everyone that we’ve been fighting off the inherent flaws of term contracts and the capacity of tyrants to terminate employees doing a good job for almost a quarter of century. A worthy battle by any measure.

Now that the jurisdictional issue in the Supreme Court has been resolved we can focus our attention on getting the employers and the unions together (with an invitation to OLG) to review what happened in the public sector in 2014 and 2015 that has resulted in the transitioning of senior staff into continuing employment, and whether that arrangement can be now flowed into local government.

It’s the light at the end of the tunnel...

depa v Narrabri Shire Council in historic Supreme Court victory

Well, it doesn’t get much better than this. It’s one thing to be part of a Combined Unions High Court triumph back in December 2018 but it’s another thing entirely to run and win a case on our own behalf - in defence of a member unfairly sacked under the Standard Contract, by a GM who is at the same time the President of Local Government Managers - stopping the tyrants who unfairly sack senior staff and want their handiwork to remain unexamined.

On 19 October, Associate Justice Harrison in the NSW Supreme Court handed down her Judgment in a case where Narrabri Council/GM had argued that the Supreme Court did not have jurisdiction to deal with the sacking of an employee on the senior staff standard contract. This was a response to action taken by depa in support of Tony Meppem, a well-known and well-respected Narrabri local, who worked most of his life at the Council.

Section 106 Unfair Contracts of the Industrial Relations Act 1996 had formerly been administered under the Industrial Relations Commission until the Government in 2016 sliced off their judicial role and added it to the Supreme Court. This was almost universally condemned and opposed - apart from the wanton dismantling of Australia’s longest-operating industrial jurisdiction, the Supreme Court is less user-friendly, slower, more expensive and significantly, a costs jurisdiction where the loser invariably pays.

The Judgement yesterday is 25 pages, but it’s the key orders on the first page that contain the great news:

Narrabri Shire Council was the defendant, we were the plaintiff and Narrabri has been ordered to pay our costs - meaning that Narrabri Shire, with an operational deficit for the last five years and a projected deficit this the year of $1.8 million will need to stump up something like $80,000 or $90,000 in costs. All from a case that should not have been run, and as the matter continues now in conciliation, the Council’s costs will continue. A quick settlement will better manage their continuing costs. (Gratuitous advice, Stewart)

The capricious waste of Council money on this case is consistent with the shambles of both Meppem’s appointment and termination. He was forced to sign the standard well before the position was resolved to be Senior Staff by the Council under section 332(1) (not just inappropriate but a matter of significant concern to the OLG as the regulator) and the termination, where the GM failed in his obligations under section 337 to first consult “with the Council” before any dismissal in failing to contact all councillors as required under the Act. This failing was reinforced in a subsequent specific and targeted circular from OLG to the industry and, as we understand it from local informants, the GM has been given a bit of a kicking (metaphorically) by OLG about both the appointment and dismissal processes. ‘Tis but a scratch, clearly.

The judgement yesterday is good news for those of us who have contested and tried to prevent the introduction of term contracts -  for us, as far back as 1987. It’s also good news for the other unions; current senior staff now comforted that there is a jurisdiction to test the unfairness of terminations; future senior staff who can now feel more comfortable in their careers and trajectory to the top; those members of Local Government Professionals/Managers who don’t support the LGP President Todd in his defence of unfair practices; the Office of Local Government, the Minister for Local Government and the Government now having the confirmation and certainty of a jurisdiction under section 106 in the Supreme Court; for those in the employers’ organisation, LGNSW, who support fairness in the employment of senior staff; and local government employees generally - because you never want your boss to feel that their employment is tenuous or high risk, because it distorts the way they want to employ everyone else.

The judgement is bad news for Narrabri GM Stewart Todd, who was responsible for taking the jurisdictional argument, Local Government Professionals President Todd because more members of LGP will be pleased about this result than if he had won, the community of Narrabri who have to pay for the folly, and other tyrants who support unfair employment practices across the industry.

Some great news to ward off the COVID blues.

“Self-inflicted but I’ve had worse”

Next month

  • Councillor behaving badly at Sutherland and what we’re doing about bad behaviour
  • Two different councils and two different approaches to transparency in Code of Conduct investigations of councillors
  • Lyall Dix’s company in trouble again over Clontarf fiasco
  • Update on the Building Commissioner/Commission
  • Jeeze, is that the time? The year is nearly over

It’s the COVIDiots’ fault

If ever we needed a demonstration of the capacity of us humans to be stupid, selfish, ignorant and totally irresponsible, the behaviour of all those taking advantage of the relaxation of the isolation requirements, after the worst of what we now know to be the first wave, are demonstrating it now.

In New South Wales it was the Ruby Princess, simple failures of process releasing COVID-19 holidaymakers into an unsuspecting state to pass on this easily transmitted virus; in Victoria a government not normally known for its fondness for privatisation contracts out the security of quarantined international travellers returning to Melbourne to private security companies, who subcontract it out to others and away it goes, some kind of sex holiday for both those in quarantine and those meant to be protecting them and then out they go back into the community; nursing homes, run for profit rather than care with inadequate protection and staffing, and idiots ignoring the fundamental rules of hand washing, the 1.5 metre rule in social distancing and the protection of our own 4 m².

Let’s not mention the drunks, the parties, the self-confidence and indestructability of the young, the 25% of Melbourne’s COVID positive people who weren’t at home in quarantine as they were required to be on the two visits in one day, and the two surgically enhanced (but clearly not intellectually enhanced) young Queensland women and their litany of offences and ignorance because it’s all so distressing to see this level of social and community irresponsibility. Open up Manus! Put your mask on idiot, or keep out of Bunnings.

Through all of this, councils in New South Wales have been remarkably prudent, setting up remote working arrangements, embracing Teams and Zoom (as we all have) and still getting the work done and keeping the essential services provided by councils going during this awful time. Facetime inspections, providing their public and environmental professionals’ services to the communities and, let’s face it, anyone who is an EHO has the perfect opportunity to demonstrate those skills and qualifications in a pandemic no one could possibly contemplate. We know people in essential services who can’t believe their luck that, after all that training, at last there is an opportunity to be working in a real public health emergency.

Sure, councils like Clarence Valley and Sutherland were slow getting people working remotely and Sutherland responded badly to encouragement from the unions to get it happening quicker to provide proper protection for staff - famously responding to an email from depa encouraging the speedier implementation of 50:50 in the office and other arrangements, the CEO’s immediate response was to grab our poor delegate, who didn’t even know the email had been sent, and march him up the street to show him the queues outside Centrelink. Take that Comrade, apparently the CEO was trying to avoid that happening, not threatening that you were lucky not to be on the queue...

Nearly everyone moved quickly into safer working arrangements, the Splinter Award provided a comforting safety net and, with Stage 4 restrictions in Victoria, boundaries of other states closed and the risks from developing new clusters and hotspots in NSW, and particularly Sydney, we are far from a happy ending to this public health calamity.

If there is a positive, councils now have a better understanding of the benefits and productivity available from employees working from home. Real evidence that that will allow evidence-based decision-making next time employees ask to continue to work from home, or to start working from home. That will make the old managers/reactionaries look for new excuses, or go with the evidence...

But, while everyone’s social distancing and acknowledging the 1.5 metres and the 4 m², things weren’t quite going that well at Bayside...

Things weren't quite going that well at Bayside

Bayside started out looking like it knew what it was doing. People were working from home, a triage team was established in their WHS area, they published regular newsletters keeping everyone in the loop but someone, and no one is really owning up to who that was, decided and published on 29 June a return to work message to all staff headed “Congratulations! We made it to the other side...” Very premature at the time, and even more premature as we watch the second wave role on.

This was their response to the 1 July easing of restrictions in NSW but out at Bayside they got very excited about “how proud we are of our response to COVID-19!”, so without further ado, or even another week or two or three to be sure we were out the other side, they decided that all working from home arrangements and approvals would expire the following day. You’d have to reply under new rules.

They prepared a new approach to working from home that would see anyone with a leaseback car paying more for it because they believed that more days at home really meant more private use. It was demonstrable that we had members working from home who use their cars for work purposes on inspections over that period of time but clearly someone thought if you’re working from home, you’re driving your car around the place for private purposes, just generally skiving off.

The document itself, with proposed changes for RDOs was drafted as if it were hostile to people continuing to work remotely. No one understands why.

But it was the preparation of the workplace for the return of staff where the proverbial hit the fan. The triage team, led by the looked-up-to Ben Thompson, Manager Business Improvement and Organisational Development, was absolutely convinced that the 1.5 metre requirements didn’t apply if you were seated back-to-back. So they set about measuring all the workspaces to provide appropriate social distancing.

But, many of the workstations didn’t, so sneeze screens were erected and we then entered into what became an interminable argument about the 1.5 metres with the GM coming back and saying she had never said it didn’t apply if people were sitting back-to-back. Of course she hadn’t, but her people had and were continuing to do so..

That created untold anxiety amongst staff busy adhering to social distancing requirements while they were working remotely and in their normal lives, finding that they are being required to return to work, with very short notice, with social distancing requirements not being respected.

Our members were the most vigilant about this, and that resulted in an email from Ben Thompson, the Manager BI&OD on 29 June under the heading Floor Plans for seating availability for return to work safe and in response to concerns members had raised about desks facing in opposite directions, said this:

This will be fine for use. Where desks are facing each other we are installing sneeze shields but there is no requirement when desks are facing opposite directions.

In fact it is actually safer than desks side-by-side as breathing/sneezes are in opposite directions.”

Uh oh, a real FFS moment and a quotable quote for posterity.

It was all well and good for the GM to be saying it wasn’t her fault, that she’d never said that, but it was being said and was being said by the people she had made responsible for work, health and safety in the return to work.

We even bet the GM that she couldn’t provide us with evidence from any reputable source, like NSW Health, that this was right and Meredith, you couldn’t do that, so lunch really is on you. Isn’t it.

But more importantly, when eventually the GM confirmed to us that the following week the Council would publish a clarification , ”just to clarify, no matter which direction your desk or the desks around you face, you must always observe the 1.5 m rule. Keeping that space between you and others is an important part of staying safe”, and they did, there really needed to be an acknowledgement of the conflicting advice that had both horrified and confused indoor staff.

And, as we try to teach our kids, “if you make a mistake apologise for it, and it’s over” we said “decisive action is required to clear the air, please”.

We put that to the GM, but still there has been no acknowledgement of the dismay and anxiety that the confusing and inaccurate information created.

We’ve acknowledged it now but it does need to be acknowledged by those in charge at Bayside. Over to you again.

Finally, and despite publishing that the WH&S team is there to help and even saying “don’t be afraid to contact the team. No issue is too big or too small!”, when our members did so because there were still problems with spacing of desks, the Manager BI&OD responded “rather than sit in a desk being concerned, I’m not sure why the employees themselves or the leadership group are not moving the employee to another desk? If we were at full capacity I would understand the lack of action, but there are free desks every day.”

The best advice the Manager has given, don’t just sit there being concerned, fix it yourself.

NSW Industrial Relations Commission makes the 2020 Local Government State Award

Commissioner Murphy of the NSW IRC made the 2020 State Award following a brief hearing on Friday afternoon, 26 June. The Award was made by consent of the parties, meaning that it was an agreed document reviewed and accepted by the IRC as satisfying a range of legislative obligations.

In a climate where unemployment levels are spiralling and people are lucky to have jobs; public sector employees generally are struggling for a pay rise; where the NSW Government is trying to impose a pay freeze for their public sector employees (currently being arbitrated by the Full Bench of the IRC); where the combination this year of drought, floods, COVID-19 and an economic recession made things looked decidedly grim, Local Government NSW and the three local government unions were able to reach agreement, not just on pay increases for the next three years, but visionary and far-reaching changes to the Award for the benefit of both councils and employees.

So concerning was the state of the economy and the surrounding glum economic circumstances that the employers and the unions acknowledged the obligations of the IRC to consider “the public interest … the state of the economy of New South Wales and the likely effect of its decisions on that economy” and we both separately sought professional economic advice to present to the IRC, in a clear and cogent way, that the economic benefits of pay increases for local government employees and the impact of that money flowing into regional communities supported the prudent and sacrificial 1.5% increase from the first pay period after 1 July 2020 and the 2% increases due in July 2021 and 2022. (Agreed in the context of expected increases in SGC those years.)

The three unions jointly funded a report from Equity Economics, an independent group of economists that you can see here, and LGNSW provided advice from their Chief Economist. Both reports and the Commissioner’s significant involvement in negotiations over the past six or so months were sufficient to convince Commissioner Murphy that he could proceed to make the Award on Friday.

Unlike 2014 and 2017, where the Award negotiations were difficult and adversarial (substantially reflecting internal issues in LGNSW with CEO musical chairs) this time was different. In a process starting with logs of claims from each party back in August and with the assistance of the IRC when necessary, 34 changes were agreed and the Commission had assisted the parties to agree to a number of things including issuing directions the Council is to furnish information on their compliance with award obligations on training plans and salary progression.

And of course our critical triumph, the new clause 9 requiring at 9(i) the employer to “provide adequate staff and other resources to enable employees to carry out their duties and functions over the course of working hours that are not unreasonable and support the implementation of the employer’s community strategic plan and operational plan”.

This has created both a new right and a new obligation in the industry: the right for employees to have proper resources and to be able to do the job in reasonable working hours, and an obligation on employers to provide that. Potentially this clause can be used everywhere.

Here is the recommendation from Commissioner Murphy 16 March 2020 when we had a formal hearing of the claim.

We’ve always been obsessed with disciplinary procedures and investigations and the Award will provide more assistance to councils on when they should, or shouldn’t, conduct an investigation. Driven by poor management and HR decisions at Sutherland and Canada Bay, clause 36C Workplace Investigations at (v) adds two more considerations of when investigations shouldn’t proceed:

  • whether there have been concerns, threats are allegations made against the employee previously by any complainant, and
  • whether the complaint itself has been copied to others, thereby indicating that any allegation about work performance or conduct may be vexatious, punitive or harassment.

This is how Award negotiations should work - see a problem in the life of one Award, fix it in the next one. Out of two bad decisions comes better protection.

Plus, annual and long service leave can be taken by agreement with the Council at half pay or double pay, annual leave can be paid out, there is a new focus recognising the prevalence of bullying in local government, better protections on whether your leaseback car is a condition of employment, focus on term contracts requiring each term contract to identify how it can be a term contract under the requirements of the Award and much, much more.

The Award will operate from 1 July (with pay increases from the first pay period after 1 July each year) and will be on our website that day.

If the NSW Ombudsman comes to your Council to ask you questions, look out...

We have much more experience with the ICAC in the way it does business than the NSW Ombudsman. If either are investigating at your Council you need advice, and no more so in the last couple of weeks when the NSW Ombudsman took an interest in a 2015 DA at one council and started asking some questions.

And not just asking questions where employees could have the opportunity of responding in writing, but talking up their power to require interviews and employees providing “oral” evidence. In documents to members they cited their powers under section 18 of the Ombudsman Act to interview and require “oral” evidence.

Members sought our advice and what do you know, when you look at section 18, there is no reference to “oral” evidence at all. All that section 18 refers to is the ability to require the provision of documents. Another valuable lesson in checking whether what is said to be a power, is in fact a power.

And in a happy development, both for the employees concerned and the Council, in response to our resistance the Ombudsman’s office agreed that while they do have advice that they can require oral evidence, if the employees concerned would prefer to do it in writing, they can...

“Shoebridge Committee” hands down final report

The Final report of the NSW Legislative Council’s Public Accountability Committee Regulation of building standards, building quality and building disputes has been handed down and here is a link.

The Report contains significant recommendations addressing building certification and encourages the NSW Government “as a matter of urgency to provide the NSW Building Commissioner with new powers to ensure building standards”.

Significantly for us, the Chair observes in the foreword:  

“this report also focuses on the concerns surrounding private certification. It is clear that the experiment of the last 20 years of private certification has not worked. Many participants and stakeholders told the committee that the conflicts of interest inherent with private certification were not able to be remedied. They pointed to years of attempted reforms that so far have failed to restore confidence or integrity in the system of private certification. Others suggested that it was possible to conceive of further reforms to make the system work better. Whilst it is clear that the status quo is broken, and that public control of certification needs to be strengthened, the Committee did not at this stage recommend building certification revert back to local councils. The committee has instead recommended that this proposal be considered in a further inquiry we plan to establish at the end of 2020 to continue to review the NSW Government’s reforms into the building and construction industry.”

Recommendation 17 proposes “the Legislative Council’s Public Accountability Committee as part of its foreshadowed inquiry to review the NSW Government’s reforms into the building and construction industry and consider as one of its terms of reference the strengthening of public control of certification, such as returning certification to local councils.”

Recommendation 18 proposes implementing the recommendations, where practical, put forward in the report by Mr Michael Lambert “to improve the certification system as soon as possible and no later than within two years” and recommendation 19 includes the observations about considering returning building certification to councils as quoted above from the Chair’s foreword.

Let the money flow!

The announcement by the NSW Treasurer and Minister for Local Government on 26 April of $112.5 million to match the Federal Government’s JobKeeper program may have missed the publicity it deserved but it was a revelation for the industry with a cautious optimism about how councils would qualify. It was provided to complement and work alongside the Splinter Award and was a sign that if local government needed financial support, the State Government would provide it.

A lot of councils are desperate for a cash injection to keep services going but it’s clear that the requirements attached to JobKeeper don’t necessarily open the doors to financial assistance for councils. The Government needs to move quickly to announce how the money will be available and the funding needs to be significant and universal.

As this issue of depaNews is published, we’re not aware of any Council confident it will get enough of the $112.5 million and there are lots of GMs pessimistic about getting any.  Neither have we heard, after the first flush when Sutherland dumped casuals from Council services closed by State government proclamation, of anyone stood down in the industry drawing upon the Splinter Award for income maintenance.

We’re all geared up ready, optimistic for easier access to the drastically needed funding to keep services flowing as the restrictions start to come off.

The good news is that the industry has almost universally accepted that it is an essential service and that even those employees who can’t be given useful work in their normal jobs can be transferred across to other areas of the Council’s operations where they can. This has meant, as far as we are aware, continuing employment despite councils encouraging employees to take leave at short notice, or even to start working shorter work weeks.

Next month we should have a better picture of how the money flows and whether the industry has managed to continue to protect the normal levels of employment.

In related news, on 12 May the NSW Parliament is scheduled to consider two important initiatives as part of a COVID-19 Emergency Measures Bill – titled COVID-19 Legislation Amendment (Emergency Measures) Bill (No 2) 2020 NSW.

The first, which is not before time, is found in Schedule 3 Amendment of other legislation where at 3.1 Annual Holidays Act 1944 No 31, the government proposes to allow cashing out annually of annual leave, with protections, and extending the opportunity for long service leave to be taken at half pay or full pay by agreement with the council, to accumulated annual leave.

It will be about bloody time, LGNSW and the unions have been pursuing governments for about fifteen years to allow half pay or double pay for annual leave but both the cashing out, and the double pay will only be available for two weeks of every twelve months. While employees will have more options than they do now, they don’t go anywhere near far enough. Double pay annual leave by agreement will fund superb holidays and other things and dramatically reduce annual leave accumulations at those councils which have failed to properly manage it over the years.

And the second, which seems like a grossly unacceptable restriction on local government’s authority, imposes a limit on expenditure on council administrative buildings above $1 million for the next two years, unless it’s an emergency or maintenance. Cramped, unsuitable accommodation is typical in local government and councils should not be prevented from doing things to provide suitable accommodation for staff to get the job done properly.

And we’re absolutely convinced that one of the reasons Cumberland keeps crying poor and asking staff to sacrifice and forfeit entitlements is that they run two administrative centres from the olden days of Holroyd and Auburn when they’d be much better off in one. And they could stop harassing staff by passing the hat around.

Finally, the Splinter Award has now been varied twice since it was made and there are now only Balranald, Blayney, Broken Hill, Eurobodalla, Georges River, Kyogle, Lake Macquarie, Maitland, Murray River, Northern Beaches, Richmond Valley, Strathfield and Wollongong not parties to it. Goulburn-Mulwarree is not a party but has a more beneficial Council Agreement with the unions.

More Articles ...

  1. LG Professionals (sic) to the rescue!
  2. And some good news for old council certifiers
  3. The lucky group enjoying fewer constraints under COVID: developers
  4. Local Government State Award 2020 - are we there yet?
  5. Local Government Poseurs want to stand you down –
  6. COVID-19 update
  7. Something to balance all the bad news, we have a new Committee of Management
  8. Finally, something about us - it’s election time
  9. Sydney City can’t help being nominated for our HR awards
  10. Wake up, we’ve found a flaw in Building and Development Certifiers Act 2018 No 63
  11. “It will take two years to fix …”
  12. How are the award negotiations going?
  13. Just as well we can play a long game
  14. And that’s it for us this year
  15. Bumper holiday reading - 2019 depa awards for the Worst HR in Local Government
  16. Premier to announce “the simplest and most effective planning system in Australia”
  17. A word about wage theft
  18. Supreme Court reserves its decision on Narrabri’s jurisdictional argument
  19. Public Accountability Committee’s first report makes 17 recommendations
  20. Next month
  21. Local Government Super appoints a new Chief Executive Officer
  22. Local Government Super appoints a new Chief Executive Officer (2)
  23. Narrabri GM wants more bloodshed
  24. That’s not a monumental step, this is a monumental step
  25. Oh no, more “independent” LGS directors
  26. Finally, on the crisis in construction...
  27. Uh oh, time to change feet
  28. Evidence to the Legislative Council Public Accountability Committee into the regulation of building standards, building quality and building disputes.
  29. More good directors sacked - a real bloodbath at Snowy Valleys
  30. We start negotiating a new Local Government State Award this month
  31. Senior Staff are being invited to respond to some questions about their job security
  32. A hapless of Building Ministers announcing bugger all in Sydney
  33. Prime Minister announces IR reform - oh no, here we go again
  34. A new Minister for Local Government - let’s see what we can do about those unfair standard contracts
  35. Look out if your Council wants to review your nine day fortnight
  36. Shellharbour shows why you need to be a member of a union
  37. And we’re in dispute with another Council too
  38. Super dispute in the Commission as well
  39. NSW election means we’ll be bashing our heads against the wall with the Coalition Government
  40. We still hate term contracts for senior staff
  41. NSW Government doesn’t understand why they lost the High Court case
  42. We file our first dispute of the year with Snowy Valleys Council
  43. "Roll out those lazy, hazy, crazy days of summer; You'll wish that summer could always be here"
  44. Kaldas review released in December
  45. Opal Tower fiasco raises opportunity to review everything
  46. How's HR been this year?
  47. Richmond Valley is the winner
  48. What about the High Court challenge?
  49. And that’s it for 2018, but here’s some good advice
  50. Neither snow nor rain nor heat nor gloom of night stays depa from the swift completion of depaNews …
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