Randwick GM’s bold move to protect senior staff

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Published: Tuesday, 08 November 2022 09:45

It’s now more than twelve months since the LGNSW Board resolved to create consensus with the unions about protecting senior staff and bringing them under the Award. It took a long time for the Office of Local Government to move, to develop a Discussion Paper, to put it out for consultation in the industry for “broader” consultation - people who may well want to continue the ability to sack senior staff without reason. We are all being very, very patient in a process that may not end in time to allow legislative change before the Government gets itself into election mode next year.

But Randwick Council’s GM, Therese Manns, thought it unnecessary to wait, and acted both immediately and decisively to support her senior staff. In an unprecedented move during this consultation period, she put two recommendations to the Council: that it prepare a submission supporting the historic consensus on providing fair employment for those currently called senior staff, and at the same time “convert Director level positions at Randwick City Council from senior staff contract to Local Government (State) Award”.

The Local Government Act 1993 requires councils to determine senior staff positions. The only position that must be senior staff and capable of being sacked without reason is the GM, and it is open to councils to not impose this unfair employment arrangement on anyone else. Smaller councils have been doing this for decades (although mostly because the second level doesn't meet the minimum remuneration levels required), Penrith Council has done this fairly recently but at last, to emphasise the importance of this historic consensus, the Randwick GM has fixed it locally. Inspirational.

Here is an extract from the minutes of the 18 October 2022 Council meeting:

If we had another seventy or eighty general managers prepared to do this, it wouldn’t matter how long it took Sagittarius A to deal with it. We urge all those other GMs to do it as well. Now that the ICAC has acknowledged the corruption risk with this form of employment, what’s holding them back?

With the consultation period ending on 15 November the optimists are hoping the OLG and the Government do the right thing on this and deliver the legislative changes this year. 

NSW unions challenge NSW Government in the High Court – again

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Published: Tuesday, 08 November 2022 09:45

In 2018 depa joined in an action which the High Court describes as Unions NSW 2 v NSW Government. It was a challenge to the legality of restrictions imposed in New South Wales legislation putting a cap on campaigning expenditure by third parties and, in particular, imposing that same cap when a number of third parties get together - or as the legislation describes it, “act in concert”. It was also the second case Unions NSW had conducted on electoral funding, the first was successful, and the second was an absolute triumph, humiliating the NSW Government with all seven judges agreeing it was unlawful.

You can check our coverage in three different issues of depaNews here:

NSW unions challenge NSW Government in the High Court

High Court to hear union challenge to electoral funding laws next week

NSW Government doesn't understand why they lost the High Court case

Section 35 of the Electoral Funding Act 2018 is the problem but successful lobbying of the NSW Upper House saw the opposition and crossbench unite to rescind that section to ensure that the acting in concert offence was repealed. The Government agreed to the Bill, and that should have been the end of it, but the Government refused requests from Unions NSW to give an undertaking that they would not reimpose that provision in a way that would prevent joint campaigns in the future.

So, notwithstanding all that, the case has been set down for hearing in the High Court on Wednesday 16 and Thursday 17 November. The High Court must be wondering how many times they have to reject the approach of the Government before they accept there is an implied freedom in the Constitution for third parties to participate in the electoral process.

We file a dispute with Waverley for failing to have a Consultative Committee operating for 30 months

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Published: Tuesday, 08 November 2022 09:45

When the Local Government State Award was made to operate from 1992, one of the significant achievements was the requirement that all councils have a Consultative Committee that would, for the first time, acknowledge the importance of employees having a say in things that affect their lives at work. There was some antagonism to this but it was a Federal Government initiative at a time the government thought cooperation in the workplace was essential. It was a big step, challenging the historic view of managerial prerogative trumping everything, it prescribed how a Committee should operate, who should sit on it, what it should do.

Now local government accepts it is an integral part of a modern workplace.

But while Waverley Council thought Council meetings could be held remotely during the pandemic, for reasons not properly explained, they thought that the Consultative Committee couldn’t. So they didn’t, unchallenged for 30 months. The last meeting was on 12 February 2020.

The unions, first separately, and then together, started raising it with People and Culture, the people who would normally be responsible for the management of the Consultative Committee. Those approaches were ignored by P&C, trying to fob us off with talk of the need to review the Constitution, it wasn’t their responsibility, the dog had eaten their homework, and even if it wasn’t their responsibility, they were very happy to stonewall.

Thirty months is a long time to not have a Consultative Committee meeting when the rest of the industry quite happily moved to remote meetings. They’ve still not explained how the Council could operate this way, but not the Consultative Committee, so we filed a dispute.

As a result of proceedings in the IRC on 27 September, the Council accepted they would start having the meetings, consistent with the requirement in the Constitution to meet on a certain day every month and the first meeting was held on 12 October. The first opportunity to meet consistent with the Constitution.

It was a dispute over something that no other Council had ever done, without anyone ever properly explaining how it happened, or whose decision it was. No one has put their hand up to own it.

The dispute also demonstrated the truism that there is a high correlation between councils caught doing the wrong thing and complaining about unions being intimidatory. Thirty months breaching the Award, they should have extracted as many fingers as they needed to respond to the unions requests immediately. Sprung. No wonder they felt intimidated, poor little loves.

It was refreshing to have the relatively new GM apologise to members of the Consultative Committee at the first meeting, but no one has put their hand up and said it was me, and it was a mistake. That fell to the GM, taking one for the team. Both kind and courageous of her.

The unions had identified eleven policies and protocols that had been varied, amended or changed in some way, including proposed changes in the job evaluation system, that should have ordinarily been through the Consultative Committee. A sad development for a Council that regards itself as progressive and consultative.

The NSW Building Commissioner is interested in the big picture with local government certifiers

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Published: Wednesday, 05 October 2022 11:41

We met with the NSW Building Commissioner David Chandler on 9 September, concerned about slide 5 in a presentation he had made to a Developers’ Lunch on 25 August. We think he’s done a great job generally, unbelievable productivity, the statistics on the number of apartments inspected and the benefits that provides to consumers are astonishing and we love the idea that when he’s finished in his current role, he takes over the Office of Local Government for a while. He would only need six months.

Slide 5 showed a comparison of “Non-compliances” of eleven private Certifiers with certification done at nine councils from an audit of 21 Developments, 31CCs and 26 OCs and showing “85 Non Compliances”.

The Building Commissioner is interested in the quality of the certifying rather than the quality of the certifiers, he understands issues of under-resourcing and those problems confronted every day by the industry. For that reason, he didn’t want to identify the nine councils but we can rest assured that it’s the process targeted here, rather than an individual certifier or certifiers. Fair enough, we look forward to the recommendations from the Report, yet to be published.

2023 Award discussions have begun

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Published: Wednesday, 05 October 2022 11:41

The unions and LGNSW, the parties to the State Award, met on 13 September. We had the normal ceremonial arguments and sabre rattling but with a focus about cost of living increases, the urgency of pay increases, the need for them to be decent and reflective of the cost of living, and something well beyond what we’ve been used to in recent years. And the industry’s capacity or incapacity to pay.

Critically, the State Award was made by consent of the parties back in October 1991 and has been varied by consent of the parties ever since. Sure, there have been occasions when members of the Commission have assisted conciliating questions that were proving difficult to resolve (and may in this Award as well) but historically it has been an unprecedented history of cooperation.

And just like a human pyramid, everyone needs to be working hard cooperatively to make the thing work.

We went through the log of claims by LGNSW and set a timetable to file a dispute for those occasions when we may need the Commission to assist by settling some issues that can’t be agreed, a timetable of dates, through to making the 2023 Award to operate from the first pay period after 1 July.

Here is our Log of Claims and here is the Logs of Claims by LGNSW, the USU and LGEA.

LG Professionals invite members for a little bit of consensual S&M

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Published: Wednesday, 05 October 2022 11:41

For years we used this image from the Wizard of Oz whenever Local Government Professionals (sic) dabbled in employment or Award issues. At the time they had all the characteristics of those three wonderful characters - the cowardly Lion, the heartless Tin Man, and the brainless Scarecrow.

Some of their presidents have been worse than others - most have kept out of employment related discussions because they recognised their skill gaps and that there are people who deal only with that kind of thing and they should know what they’re talking about. But there have been others, clumsily crashing into Award negotiations, calling for the ability to stand down employees during Covid, and worse. Inexperienced and unqualified and getting in the way.

Back in negotiations with the Government prior to the establishment of the 1993 Act, the predecessor of LG Professionals (sic), the Institute of Municipal Management, was part of a unanimous view in the industry opposing the introduction of term contracts based on the SES model. Those were the days.

Now though, they are more likely to support the sacking of senior staff without procedural fairness than support steps to provide that procedural fairness - even when in addition to concepts of procedural fairness, the ICAC has called out the inappropriateness of arrangements that involve “no reason” terminations. One of them, after sacking a member of ours we think unfairly, even challenged the Unfair Contracts jurisdiction in the Supreme Court, and lost.

The LGNSW Board virtually a year ago resolved to create the industry consensus on changing the Act and providing award or EA coverage for senior staff, while leaving only the position of GM in that category. In March this year their Special Conference considered a motion from Mosman Council for LGNSW to proceed no further with this policy resolution. It included six easily rebuttable, flimsy arguments that were thrown out by the Special Conference with a unanimous no vote.

It's clear from the OLG Discussion Paper that the arguments put by the supporters of the right to sack unfairly continue to be flimsy and rebuttable and show astonishing ignorance of the capacity for these employees to be treated fairly, but still performance managed and disciplined, when covered by the Award - just like everyone else in the industry. It's a cliche, but it isn't rocket science.

It’s hard to find a GM prepared to publicly reveal they want to continue to sack senior staff without procedural fairness*. But they’re out there and no-one should be too surprised that LG Professionals (sic) has convened meetings of their members to discuss the Discussion paper - Senior staff employment.

Unconvinced by an industry consensus of the employer’s organisation and the employee’s organisations, people who witnessed the misery created by unfair sackings, the wasted public monies and the capacity to do things properly and remove an employee who simply can’t do the job in the Award, neither are they convinced by the ICAC’s Dasha recommendations.

Given the notoriety of the consensus and the legislative ramifications in the industry, it beggars belief that on 26 September, the CEO of LG Professionals (sic) emailed all members and said this:

As you know this topic has been raised before, and we were under the impression the previous sector wide consultation had affirmed the consultation with our members that there was no appetite to pursue a change from Senior Staff Contracts.

No appetite, no awareness of the industry consensus and the commitment of those who are part of it to push it legislatively, what have these people been doing? Did they miss Operation Dasha?

Nevertheless, they’ve organised meetings to consult with “members who are on senior staff contracts”. It’s curious there have not convened meetings for members who may aspire for those positions and would clearly prefer to be permanently appointed than survive at the whim of a GM pressured by Council, or pressured by councillors themselves.

The LGP Board of ten has one apparently unemployed former GM as president, two other GM’s but seven employees who from the sound of their titles on their website, would be senior staff. Self-interest is a great motivator and it’s hard to imagine, given the choice, they would want to build a career into the senior positions and continue to risk unfair sacked themselves. The two current GM’s would seem to be unlikely supporters of precarious employment for those who report to them but you never know.

Obviously it’s not all about lacking courage, or a heart or a brain, but there has to be a better explanation for why one group, the GMs, want to retain the right to inflict pain on others, and the other group, senior staff who are not GM’s, might want to retain the right to have pain inflicted upon them by being unfairly sacked.

At the risk of setting readers’ imaginations running wild about concepts of S&M in LGP, surely the Marquis de Sade got it right - there are people who obtain pleasure inflicting pain on others and people who obtain pleasure by having pain inflicted upon them. Will we see a decision of that Board reflecting that sadomasochism, or will they at last, do the right thing?

*We hope to be able to bring you a list of those people supporting the retention of unfair sackings after the meetings.

Minister for LG releases the much-awaited “Discussion paper - Senior staff employment”

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Published: Wednesday, 05 October 2022 11:41

The NSW Government is a funny thing. Back in the early 90s the Government decided when the new Local Government Act was to be made in 1993, that the model which operated in the NSW Public Sector for the Senior Executive Service should be forced onto councils.

It wasn’t ever a good model, employees in the SES in the Public Sector are, apart from at the very top, remote from the ministers and would be horrified at how closely their colleagues in local government operate with elected councillors.

Flawed or otherwise, in 2013, Premier at the time Mike Baird announced the “modernising” of the Senior Executive Service by doing two important things - transitioning members of the SES from term employment to “continuing” employment (that means permanent) and, while retaining the right to sack employees with 38 weeks’ pay, introduced a requirement for any authority wanting to sack someone (who couldn’t be sacked for bad performance or behaviour with 38 weeks’ pay) that they needed to first prepare a written submission to be considered by the newly appointed Public Service Commissioner. A clear check and balance that still doesn’t exist in local government.

But for reasons never explained in the intervening nine years, they didn’t flow those changes to senior staff in local government. It’s impossible to speculate without getting paranoid about the State treating local government with contempt but why the Government/Minister for Local Government/Office of Local Government thought it reasonable to continue arrangements clearly unacceptable abandoned in the Public Sector for being unacceptable by the government remains a secret.

There were senior positions in the Office of Local Government, including the Director-General at the time Tim Hurst, who benefited with fairer employment arrangements but felt no need to do something about it in local government.

And as we’ve said many times, when this was raised, the response from the OLG CEO was to get a consensus in the industry and the Office/Minister would do it. We know that was taunting, because the historic consensus was established on 26 October when the LGNSW Board decided because of recommendations from the ICAC, that senior staff employment arrangements needed to change. Yep, a year ago.

You’d think, wouldn’t you, that if the employers’ organisation and the employee organisations all have a common view about how employment should continue for the senior executives, then that should be sufficient. Unfortunately not, the Minister for Local Government and/or OLG, instead  wanted to consult to “seek the views of the broader local government sector on the changes requested by parties to the Award”.

We should be thankful for small mercies, after the way this has been handled, but no one has explained why it has taken two months for this to happen after the LGNSW and the unions endorsed a draft of the Discussion Paper on 27 July, nor why the Discussion Paper is out there for two months. And then it will need to be analysed in Sagittarius A. The cynics speculate (and some of the realists as well) that this has been deliberately done to create an excuse for the Government that it’s too close to the end of the year, to get on the legislative timetable, and then next year, everyone will be in election mode...

Here is the discussion paper, already sent to members for their input on 20 September.

Uh oh, the Building Commissioner is concluding the investigation into certifiers at nine councils …

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Published: Monday, 29 August 2022 12:40

On 25 August the NSW Building Commissioner David Chandler OAM, and Matt Press, Executive Director, Compliance Dispute Resolution spoke at a UDIA lunch. They reported on progress to date and the way ahead. After a well-publicised resignation, the Building Commissioner has renewed his employment and commitment to the cleaning up of the building industry. That's a good thing. We like him, he's a goer.

We had an informal meeting with the Commissioner and LGNSW CEO Scott Phillips months ago when the Building Commissioner told us they were about to commence an audit of a number of councils. We discussed this, and our view that if there are problems found, they will reflect inadequate resourcing or support, rather than anything like the sort of things detected for private certifiers. We talked about clause 9(i) of the State Award and the obligation on the employer to provide adequate staff and other resources, but also the reluctance of employees in the industry to call for help when under the pump.

In the presentation to the developers’ lunch, a slide headed "Certifier Program - Private vs Council" compared 11 certifiers and 9 councils. For councils there were 21 developments, 31 CCs and 26 OCs audited (in an audit still being conducted) and they had identified "85 Non-Compliances" to date. That's a lot, and in the traffic light system that they used to identify good, bad and indifferent, 16 developments identified as RED, two were identified as AMBER and only four were identified as GREEN.

Here is a link to the presentation and the relevant page containing this information is page 5.

No one really knew the implications of accreditation by Fair Trading and the BPB before it (as opposed to the significant legal evidence and cases available to justify the Civil Liability Allowance for engineers) and we have had a succession of State Awards where we have included a reference to this in the Leave Reserved clause until such time as we had some evidence of what that additional level of accountability meant. Clause 45 (vi) provides:

Leave is reserved for the parties to apply to vary the Award consistent with the principles of the Industrial Relations Commission of New South Wales in relation to the accreditation of employees by the Building Professionals Board.

We didn't know there were nine councils, and we don't know when the report will be released, and we will chase up the Building Commission to get this information. If you work at one of the nine councils and you have been having an audit, can you please let us know?

The number of non-compliances so far in OCs and CCs does not look encouraging.

Not too late if you’ve got any good ideas about the next award

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Published: Thursday, 25 August 2022 16:30

We invited ideas from members some months ago and received a good number of suggestions, but next week we will finalise our Log of Claims to be served on the employers and the other unions and negotiations will start later in the year.

If you thought you’d missed your opportunity to put in a brilliant and revolutionary suggestion, you haven’t, you’ve got until midday on Thursday 1 September. Be quick to

depa’s appeal over OLG denying access to information heard in NCAT on 19 August

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Published: Thursday, 25 August 2022 16:30

In the context of an independent review of the current OLG’s framework of how they manage complaints against councillor behaviour, there is clearly no time like the present to highlight the unacceptable secrecy that surrounds the way the OLG does business. That must change. Not enough transparency, too much cover-up.

This is an old story, a complaint against a miscreant councillor on Wagga Wagga Council, a serial offender, was investigated by OLG. Based upon that investigation, an order was made by the former CEO Tim Hurst which included an inaccuracy at paragraph 20, when it was said that the councillor had no previous complaints, nor anything else in the pipeline.

That’s factually incorrect. We provided evidence to Mr Hurst/OLG at the time and were ignored, made application under the GIPA Act to try to understand how after the investigation, that finding could be made, but were rebuffed because the GIPA Act excludes virtually everything OLG doesn’t want to disclose about their investigations. Critical to our case was our view that we didn’t want to see the investigation details, but whatever report had been prepared for the CEO and how that allowed him to make that fundamental error. The OLG has a discretion to provide information but on this occasion chose not to do so.

We lost it in the first instance in NCAT, opposed by a barrister for OLG and a barrister for the Information and Privacy Commissioner. It must be hard representing the IPC, as their barrister likes to call it (because it must be difficult to say you represent an “information” Commissioner when you are arguing against access to information) flouting the expectation of the Premier at the time that this new piece of legislation would be “best practice” in providing access to the public to government decision-making. The IPC barrister was able to establish in both the first case and in the appeal, that there can be no government authority more appropriately described as having an Orwellian title.

The appeal was heard by a panel of three tribunal members and a decision is reserved.