NCAT smashes depa and the OLG can keep their secrets

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Published: Wednesday, 18 May 2022 13:00

Yes, this is an image of Sagittarius A, the massive black hole discovered and photographed only last week, right in the middle of our galaxy. It’s incomprehensibly huge and powerful, it’s 26 million kilometres in diameter and 25,640 light years from Earth.

OLG has regularly been characterised as a bureaucratic equivalent of the Bermuda Triangle, and as a black hole, and while investigations and reports might take years and years from the initial complaint, if your next complaint about the behaviour of a councillor heads for Sagittarius A, it will be gone forever. There’d be bureaucrats over the years at OLG who would envy that.

It’s notorious we wanted some documents from OLG, not about an investigation, but about the decision following an investigation that would allow us to understand what appeared to be factual mistakes made by former CEO Tim Hurst over a councillor at Wagga Wagga. And, in particular, that Hurst had “considered and taken into account that this conduct occurred in a single episode, and the absence of any prior offending or post event conduct in the past two years and the lack of previous incidents of misconduct on the part of Clr Funnell”. This in turn meant that the recidivist serial offender got off lightly.

The GIPA Act was introduced as a bill into the Legislative Assembly by the NSW Labor Premier at the time Nathan Rees, who described it as a huge step that would be best practice in Australia for allowing access to documents previously unreasonably denied, and at the same time established the Office of the Information Commissioner to ensure this would be best practice in access for the public to decisions of government that had affected them.

So it seems hugely inconsistent we would find ourselves in NCAT with OLG unreasonably denying access and with the Office of the Information Commissioner vigorously supporting them.

The GIPA Act excludes access to information about investigations conducted by OLG and while we didn’t want to know about the investigation, just how the decision was made subsequent to the investigation, we know OLG rejected our request, even before our $30 cheque would have arrived in the mail to their Nowra Office, we thought it unreasonable and went to NCAT for a remedy.

Last week NCAT rejected our request, deciding if OLG says it’s excluded information, then it must be excluded and unavailable for review - untouched by the ambitions of Premier Rees and the ambitious transparency of the GIPA Act and a theoretically enabling Information Commissioner.

This is enormously disappointing, inconsistent with the purpose of the GIPA Act and we are looking at our options. While OLG has the power to withhold the information, they also have the capacity to exercise a discretion to provide it. Maybe we should ask them nicely? Again.

Here is a summary of the judgement by our barrister Ian Latham.

If the senior staff contract is a corruption risk, unimaginative and a shortcut instead of proper performance management, who’d be mad enough to put more people on it?

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Published: Wednesday, 18 May 2022 12:58

Not these two blokes, surely!

David Farmer (on right in picture) is the go to GM in the industry to get councils out of significant financial trouble. He did it with Wollongong, then to Ipswich, and now is CEO of Central Coast. He is a numbers man par excellence but a little bit old-fashioned about how to motivate senior executives, holding the view that nothing motivates people like fearing for their job. He can be disarmingly charming, but if he has a fault, it has to be in his soft skills.

At a time when the industry has acknowledged the impracticalities and risks of “no reason” termination in the standard contract, David thought he’d take the opportunity before anything happens legislatively, to start flowing the standard contract down into the manager level below the directors. Central Coast is in the process of advertising three unit manager positions for Environmental Compliance Systems, Facilities and Asset Management, and Governance and Legal.

He gave an undertaking to the unions that no existing employee need become senior staff on the standard contract, but he will put new appointees on the contract, and have the Administrator Rik Hart as the Council enable this, by resolving they are senior staff positions.

As a GM at Warringah and Inner West he was no fan of the standard contract but was clearly prepared to be the Council that would introduce the inflexibility and misery of the standard contract down to the third level of managers.

And there’s setting the farce of the Council making a series of changes to those positions which are identified as senior staff, but then, if the jobs are filled by existing staff, the resolution would need to be rescinded. Really, why bother, when it’s so easy to have a proper performance agreement under the terms of the Award for even the most onerous and demanding positions?

Here is our most recent letter to the CEO dated 6 May asking him to stop, a compelling argument and with email exchanges between us as we tried to convince him that he was on the wrong side of history. We’ve not yet had a reply, but on 17 May we reminded him that we are expecting one. We may have changed his mind and you can read more about this next month.

This has to be the final nail in the coffin for the standard contract

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Published: Wednesday, 18 May 2022 12:55

The historic consensus between the unions and LGNSW to get rid of the standard contract for senior staff (other than the GM) had momentum from the moment the agreement was reached. For five years or more, the OLG CEO at the time Tim Hurst, had repeatedly told us all we needed to do was present a consensus position, and OLG would act on it.

Maybe he was taunting us, expecting that would never happen, but it has happened. On 15 October 2021 the LGNSW Board, after taking advice from their Industrial Advisory Committee and officers of the ICAC, resolved to support removing the second layer of councils from senior staff and the historic consensus was established. Pow, off it went!

And the momentum increased when LGNSW’s Special Conference on 1 March considered a rescission motion by reactionaries and barbarians at Mosman Council, and overwhelmingly reaffirmed their commitment. At last, the risk identified by the ICAC in reports on Mid-Western and the former Canterbury could be properly managed.

Things move slowly with OLG at the best of times and since October last year the issue gets regularly pressed for a bit more action at the six-weekly meetings of the OLG’s Employment Reference Group with the unions and the LGNSW.

But now, LGNSW has raised problems with the standard contract that are now more evident with the eighteen or so GM’s who have been terminated or left with a negotiated settlement after the last local government elections. Those problems are so significant that they must be the final nail in the coffin.

When a GM is sacked, or moves on, the Council appoints one of the directors, invariably on a senior staff contract to the job temporarily while they appoint a replacement. This is the first problem. The minimum period in the Local Government Act for an appointment to a senior staff position is twelve months but councils have been ignoring this requirement, thinking they had an option under the Local Government Act to do this, when they don’t. Some councils have attempted to avoid the problem by trying to make it a temporary appointment under the Award, but that doesn’t really work either.

And the second problem is that because the standard contract of the Director appointed temporarily (leaving aside that this is not legally available under the Act) provides that there are only two ways that the employee can receive a pay increase - either the annual SOORT increase in common with senior executives in the New South Wales public service, or the annual review. There is no capacity to pay anyone on the senior staff contract to act up in the higher position but every Council who has done this, since the senior staff contract was created, has done it outside the provisions of the contract. Uh oh …

So, you can’t temporarily appoint someone, and if you do so anyway, you can’t pay them unless you can find a way around it. How has this flaw continued for so long?

A mischievous lawyer might tell you that if it is not allowable under the employment contract, but the Council resolves to pay money anyway, then it is unlawful and could trigger action under the dreaded and threatening Division 2-Surcharging where the OLG has the capacity under section 435 to disallow the expenditure and surcharge the councillors or the staff for the amount disallowed.  

The contract is now indefensible and OLG and the Minister need to ensure that the legislative changes necessary to leave only the GM as senior staff on the standard contract happen this calendar year.

Ponderously slow, unexaminable, discouraging and disadvantaging of complainants, the OLG process must change

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Published: Wednesday, 06 April 2022 14:27

Late last year the Minister for Local Government announced an Independent Review of the framework for dealing with councillor misconduct in NSW. It’s a fiasco, and sometimes it’s worse than a fiasco.

The Minister’s appointment of Gary Kellar PSM (who had done a similar exercise in Queensland) coincided with depa pursuing OLG through NCAT after finding that OLG refused to review a decision and order made by the former CEO, Tim Hurst, which we were able to demonstrate was factually incorrect.

So our submission, starts like this:

On 5 February 2021 Tim Hurst, CEO of the Office of Local Government, made a mistake.

That mistake, the circumstances of making that mistake and the way in which OLG responded to the immediate reaction in the industry to that error, reveals everything that’s wrong with the current framework for dealing with councillor misconduct.

The first part of our submission deals with the mistake made on 5 February 2021 and demonstrates the contemptuous and arrogant dismissal by OLG of facts establishing that it had been a mistake - which provided a lesser penalty to a serial offender. That OLG could stonewall, based on legal protections of their processes that are essentially unexaminable, is part of the problem, and you can read our submission, and our responses to the 28 Considerations in the Consultation Paper here.

New COVID Splinter Award to be made to operate from 8 April

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Published: Wednesday, 06 April 2022 14:26

There has been some disagreement with LGNSW about whether or not the Splinter Award, which currently expires on 8 April, needs to be renewed for another twelve months. In terms of controlling the pandemic, or managing it as best we can, we all need to be vaccinated and keep our vaccinations up to date. The most important provision in the Splinter Award is requiring employers to provide reasonable time for employees to be vaccinated.

If it’s not one variant, it’s another, and now we are dealing with sub-variants. This week in NSW we’re still looking at a seven day average of around 20,000 new cases, so it’s important for employers to be providing the reasonable time for employees to continue with their boosters. It’s in everyone’s interest, our workmates, our families and our friends.

We’re all at the stage of our first booster and for those above 65 (yes, there are some of us still working) they will be lining up for a second booster four months after their first.

Unions and LGNSW have now reached agreement to roll over the existing Splinter Award in its entirety. While the Industrial Relations Commission won’t have made the Award by 8 April, it will be made to operate retrospectively from that date.

Keep protected, get vaccinated.

depa has a new Committee of Management, and we welcome Bryce

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Published: Wednesday, 06 April 2022 14:25

The NSW Electoral Commission has declared the 2022 election for the Committee to operate from 1 May 2022.  The existing members of the Committee who sought nomination were all re-elected and we welcome Bryce Weedon as a new member, our delegate and a Senior Planner from Hilltops, who can provide some new enthusiasm and drive.

The results declared are:

You can see the declaration from the Electoral Commission and the individual Policy Statements of the seven candidates here so you have some idea of the sort of things that are important to members of the Committee and their passions.

2021 Golden Turd winner resigns

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Published: Wednesday, 06 April 2022 14:24

Narrabri GM Stewart Todd resigned from the Council on 22 March. In an email to all staff he noted “I walk away with my integrity intact - a number gone before me have not!”

Barbarians rise to keep unfair sackings

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Published: Tuesday, 01 March 2022 14:53

When the LGNSW Board on 15 October resolved to create an historic consensus with the unions to support removing “no reason” sackings of directors, they did so cautiously and prudently. They acted on a recommendation from their Industrial Advisory Committee, they benefited from representatives of the ICAC coming and discussing the initiative and whether it was consistent with recommendation from Operation Dasha, and conducted information sessions online with councils across the state.

But when you take steps to prevent General Managers from unfairly sacking directors who report to them, you can expect a backlash. The barbarians are well and truly trying to sack Rome and while it may seem a bit of an exaggeration to see the steps taken by the unions and LGNSW to remove the corruption risk of “no reason” sackings and to provide fair appointment practices as equivalent to the civilisation of Ancient Rome, it’s certainly a far more civilised arrangement than current practices.

It’s not an exaggeration to see frothing general managers desperate to retain the power to sack unfairly, directors probably doing what they’re told because their employment is tenuous with a “no risk” provision in their contract, and a conservative politician from a highly conservative Council, as the barbarians.

But these furtive characters don’t want to engage with the unions publicly, or even LGNSW publicly about the reasons for their objections. They are flimsy and hollow and show a remarkable ignorance about what can be done, and not done, for employees under the State Award.

No one should be surprised that Mosman Council, a council which in the 1980s got really excited about the Thatcherite economic rationalist agenda, and contracted out all their outdoor services reducing their staff by more than a half, was right there at the front of the barbarians. Clearly the fingerprints of a ghost of councils past at work here.

Removing the unfairness of the standard contract from the layer below the GM makes sense because it’s reasonable to have everyone fairly employed in a Council, with transparent and clear treatment and with access to the Industrial Relations Commission, just like the rest of the workforce, for unfair and unreasonable treatment.

GMs, as excited as they may be about losing their right to sack people unfairly, apparently can’t see the benefit in the ICAC’s recommendations that there is a corruption risk in “no reason” termination. It’s a practice we’ve seen twice with our members and which is apparently more prevalent than anyone publicly admits - councillors threatening a GM that if they don’t sack the Director of Planning, the Council will sack the GM. Too many guns to the head in that situation, all GM’s should be thanking us.

It’s a credit to LGNSW that their councillor members see the corruption and reputational problem in this unacceptable practice and are courageously, at the time under the leadership of President Linda Scott, prepared to end it.

This morning at the LGNSW Annual Conference, the conference debated a motion from Mosman that “Local Government NSW takes no further action on the proposal to remove senior staff (excluding General Managers) from the Local Government Act 1993 in order to bring senior staff (excluding General Managers) under the Local Government State Award...”

We found out by misadventure on Friday afternoon last week. Here is the agenda extract in its entirety and our email to the Mayor of Mosman, Councillor Carolyn Corrigan on Saturday asking her to rethink the initiative and discrediting the six arguments the Council had put on the agenda. It was a pleasant and charming approach with a concise focused critique of their flimsy argument, but she didn’t reply. That may well be because no one’s game to say we are opposing this because we want to sack people unfairly, or some dinosaurs made us do it, but you’d think they could come up with something a bit more substantial than these six points.

For what could have been a significant brawl, and not just between the rival political parties involved, when Councillor Corrigan rose to speak in favour of the motion, there was one speech in opposition, apparently a powerful and compelling contribution by Canterbury-Bankstown Mayor Kahl Asfour, smashing the credibility of the flimsy argument. The motion was put with no further speakers and lost.

And not lost by a small margin, lost on the voices, overwhelmingly, with no call for a division or a count.

This is perfect. The barbarians and the reactionaries have had their chance, they have blown it, and even those councils where we know there are GM’s and others unhappy with losing their power to sack unfairly, didn’t want to get into that battle.

There is a new Minister for Local Government and we can use the momentum of this morning’s resolution to encourage the Minister to deliver on what OLG have been telling us for a long, long time, “bring us a consensus, and we will deliver on it”. We know it’s an important decision for both the Minister and the Government, facing an election shortly with potentially a jampacked legislative agenda, but this initiative should proceed as soon as practical.

Our thanks go to Councillor Asfour, and for the many people involved in educating and impressing upon people the significance of this motion from the barbarians.

Wonder no longer why some people call Mosman the sunny place for shady people.

depa v Narrabri settled

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Published: Tuesday, 01 March 2022 14:53

For those of you who have been wondering what has happened to our section 106 Supreme Court action, depa v Narrabri Shire Council, it was filed on 19 June 2018, a half day argument in the Supreme Court when the Council challenged the Court’s jurisdiction on 15 November 2019, judgement confirming that the Supreme Court has jurisdiction on 19 October 2020 and depa and Narrabri Council have agreed to terminate/discontinue those proceedings. The details of this agreement are confidential. 

Enough about everyone else, what about us? We’re having an election.

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Published: Tuesday, 01 March 2022 13:00

We have elections for all members of the Committee of Management in 2022. The President, Vice President and four Members of the Committee have two year terms and the Secretary has a four-year term. Everyone is up for election this year.

As usual, the NSW Electoral Commission will be conducting the election and next week will post all financial members an Election Notice calling for nominations. If you don’t receive one, it means you aren’t financial, or you haven’t kept us up to date with your current address.

We like the idea of proportionate representation for the three professions we cover, and also our gender make up, which is getting very close to 50:50. Obviously there is a limit on our ability to do this, because it is a democratic system and anyone can nominate. We have a Committee of seven, six of whom are renominating and one member, who isn’t. Shona Porter was our delegate at the former Canterbury, then Canterbury-Bankstown, is now at Cumberland and has been a member of our Committee for the past four years. Thanks for your contribution, Shona.

In a perfect world, we would replace her with another woman planner under the age of 40!

It makes sense that the Committee is comprised of people who have been active in depa over the years as a delegate and member of the Consultative Committee, and if you are interested in standing for the Committee and would like some idea of how demanding the role is, the frequency of meetings, the complexity of agendas and business papers, we can tell you all about it.

The timetable for the election is:

7 March               NSWEC posts Election notice calling for nominations

22 March             Nominations close

If the election is uncontested, all candidates are declared elected at midday that day. It’s usually uncontested, we hope it continues to be uncontested. Apart from anything else, the costs double if there is an election.

Please email if you’d like more details.