Special fiasco addition

How "independent" can an Independent Assessment Panel really be? (back)

The proof of the pudding is in the eating and all that, but recent reports about the Minister for Planning’s attraction to the South Australian system of independent assessment panels sounds like the embryo of a fiasco.

While the Minister is encouraged to remember his local government and community-focused roots when he contemplates kidnaps under Part 3A, we also encourage him to remember the pecuniary interest requirements of the Local Government Act and the strict regulation of the independence of local government employees through section 353.

The declaration of pecuniary interests by relevant officers provides proper checks and balances and even allows the community (usually busybodies and those up to no good, it has to be admitted) to know quite intimate personal and financial things about Council staff. Will such intimate examination of so-called independents be available as well?

And it is section 353 of the Local Government Act that prevents local government employees from doing any work for anyone which may relate to or conflict with their Council responsibilities without the General Manager’s approval.

We have seen some very zealous consideration of what constitutes the concept of “relating to or conflicting with Council responsibilities”. On one occasion, a General Manager thought it appropriate under section 353 to prevent an employee doing private work more than 800 km from their Council. This is an extreme example but councils have been very strict in their application of this section in order to manage community expectations about the integrity and independence of Council staff and the decisions they make.

When it comes to declaration of interests, depa has always encouraged members to disclose everything on the basis that it's better to disclose things that might be regarded as unnecessary, than to not disclose them and find that they can create a problem.

We would rather see over-zealous protection of the integrity of local government employees but wonder whether people regarded as sufficiently independent to constitute an independent panel, could possibly satisfy the same test that local government employees need to satisfy.

The finding of independent people will be a significant problem. Conflicts of interest will need to be acknowledged and managed. It's difficult to find people who are sufficiently experienced and capable to sit on independent panels on major development who have not had, do not have now, or won't have in the future, some relationship with the applicant.

Herald launches into private certifiers (back)

You almost feel sorry for Bernie Cohen. The most popular on the BPB’s list of complained-about and disciplined private certifiers (view PDF here) we almost do feel sorry for Bernie. He was a member of ours for many years while he worked at Parramatta and Liverpool Councils.

Very low-profile and no problems at all for Bernie while he was employed by local government and benefited from the layers of checks and balances that provide the integrity in Council control of development - supervisors who know what they are doing, a manager or director to keep an eye on things, a general manager responsible for the lot and then the public safeguard of an elected council of representatives drawn from the local community with an interest in making sure development control is carried out fairly and in the interests of the community.

It is the layers of control that exist in local government that mean that there can never be a level playing field, nor a “competition" between development control as councils do it and development control as private certifiers do it. Nothing could be starker in highlighting the difference. Council staff and private certifiers do two different things.

A recent focus in the Sydney Morning Herald on a series of fiascos and questionable decisions the responsibility of private certifiers, culminated in an editorial calling for the end to a system where applicants and developers have a direct pecuniary relationship with the person responsible for certifying that they comply with conditions of consent. They pointed out the inherent conflict of interest.

Well, it's more than hard to avoid saying we told you so, but we did. However, we don't think that the Herald's solution, of having private certifiers employed by the Council, is a practical alternative. While it avoids the unacceptable conflict of interest and it would provide the proper layers of control to reduce the questionable decisions had been made by private certifiers (particularly those on the BPB discipline list but also those who have not yet made the grade), the last thing local government needs is the return of the corner-cutters, blind eye turners and the mediocre.

While councils lost many good staff to the opportunities of the private sector, the introduction of the flimsily managed private certification system was also seen as salvation for many employees with limited career prospects, even more limited aspiration and sad histories of treading water and going nowhere. An opportunity to do things with limited oversight, better money and virtually no control.

But such a proposal does highlight the issue of resources and skills shortages. If proposals like that canvassed by the Herald result in private certifiers having a contractual relationship with councils, then councils will need to pay what private certifiers are used to being paid. And if they can do that, then they can all pay proper market-based salaries to permanent staff to redress the drain of council staff to better paid employment in the State Government or the private sector.

And that can't be a bad thing.

Food Authority options create food fiasco at Newcastle (back)

Did anyone seriously think that the New South Wales Government/NSW Food Authority decision to allow councils to choose their level of food surveillance was going to be anything other than a fiasco?

Everyone knows the story. Food surveillance was never mandated as a responsibility for councils in the Local Government Act but councils carried out food inspections, licensing and regulation as part of the obligations to community health. There was always a parallel responsibility in the NSW Department of Health and together councils and the Department shared the responsibility of ensuring the protection of public health in food shops, cafes and restaurants.

Some councils did very little and economic rationalist managers regularly seized upon the optional nature of the food responsibility to try to drop it entirely.

A process of consultation was carried out by the new Food Authority and (even though this sadly included some local government representatives who should have known better) it was thought a good idea to give councils an option to choose the level of food surveillance for their local government area.

There were three options - category A was to do bugger all but deal with rare emergencies like recalling Mars bars, category B was have a proper role in education, licencing and inspection like most big councils already carry out and option C was a full-on, properly resourced commitment - albeit a bit like the test in salary systems to determine if you get a performance increase - almost a fantasy.

The Food Authority was resistant to the criticism that if you gave councils the opportunity to opt out or provide a minimalist "service", then that is precisely what they would do. Sadly, it hasn't taken long for a big Council with a proud history of food service to the community, to get out entirely.

Newcastle is the first significant council to choose Category A and from 1 July will have no role in surveillance, licensing or inspection unless there is some sort of bizarre and unlikely crisis like last year's Mars bar recall.

Newcastle historically has had a well-resourced food surveillance role, licensing outlets and training food handlers. Admittedly carried out by an older group of Environmental Health Officers in the floor vulnerable to those employees retiring, this sort of service can easily be run at no cost to the community. Councils, if they manage their food responsibilities properly, can actually made money out of them.

The Council had participated in the final roll out of the new system as category B but in discussions with the Food Authority had concluded that if the Food Authority was going to take control in the end anyway, and if there was an opportunity to get out, they would take it. Taking advantage of the Food Authority’s options was sold to the Council by managers at Newcastle with no real interest in or understanding of food surveillance on the basis that Newcastle Council's resources were better spent on carrying out its core responsibilities.

The Council accepted that the Food Authority is an agency dedicated and resourced to address food safety issues and better suited to the role but, unless the Food Authority has a grand plan up its sleeve that it has not disclosed to anyone else, the Food Authority is simply incapable of taking up Council responsibilities across the State.

And as cynical and as sensitive to conspiracy that we are, we really don't believe that the Food Authority sees the ludicrous option choice arrangement as a step towards taking control and doing it all themselves. But you never know, Newcastle today, tomorrow the world?

The Newcastle decision is a sad confirmation that the three options provided by the Food Authority do little more than allow councils to opt out of critical area of community health and safety.

A good food poisoning at Newcastle will have a lot of people - the bureaucrats at the Food Authority, "core-business" managers and gullible councillors at Newcastle included - running for cover.

And speaking of gullible … (back)

Who is this bloke?

Why is he gullible?

This is Councillor Nick Lalich, Mayor of Fairfield. More importantly, this is ALP Councillor Nick Lalich, ALP Mayor of Fairfield and the problem he has is that everyone thinks that ALP councillors, mayors and councils have a better attitude to the fair treatment of employees than the rest.

Sadly, at Fairfield, that is not the case.

We have been involved in a dispute with Fairfield Council over continuity of employment. A member of ours Grant Milienou, started as an apprentice carpenter with Fairfield City Council in January 1993. Everything to do with this appointment was organised by Fairfield City Council.

His pre-employment medical was arranged by Fairfield, with Fairfield’s medical form, he started work at Fairfield, spent his entire apprenticeship at Fairfield, wore a Fairfield uniform, reported to, what is controlled by and received encouragement from Fairfield staff, filled out Fairfield leave application forms, had Fairfield employment and leave records and was employed under the Local Government (State) Award and the Fairfield industrial agreement.

At the completion of his apprenticeship in 1996, and without any break in service, be continued at Fairfield as a carpenter, eventually qualified as a health and building surveyor and became an environmental health and building surveyor. Ordinarily, this would sound like a marvelous career path and a good story that said lots about Fairfield's encouragement of career paths and career progression. Except for one thing.

While Grant worked as an apprentice at Fairfield, his apprenticeship and indenture was held by an agent of the Council – WSROC Group Apprentices. This is sufficient for Fairfield to say that Grant’s three years as an apprentice don't count toward continuity of employment for long service leave purposes.

The issue of continuity for long service leave purposes is only the tip of the iceberg. As an apprentice he was entitled to conditions under the industrial agreement and that included things like service payments, additional leave and payment for untaken sick leave. During the time that he worked as an apprentice, the industrial agreement was changed by agreement between the Council and the unions to quarantine these entitlements to existing employees.

Grant had those entitlements as an apprentice but when he made the seamless transmission from apprentice carpenter at Fairfield to carpenter, he did so after the critical quarantine dates and lost the entitlement he had as an apprentice.

You can that be either fair or reasonable? How can a Council that boasts about wanting to be any employer of choice in industry, not see this as being appallingly unfair?

You would think, wouldn't you, that a Labor Council would have a fairly benign attitude to the injustice of the artificial way of looking at his employment? You would think that Council policies would reflect fairness and, even if HR and other staff really only gave lip service to the concept of fairness, that the Council, having a responsibility to be "a responsible employer" under section 8 of the Local Government Act, would discharge their responsibility by making sure that they were.

But not Fairfield, and certainly not Nick. Not only has the General Manager refused to talk to depa about this because he believes his financially-focused HR staff have it under control, but neither will Councillor Nick talk to UnionsNSW or depa. The HR staff must have the General Manager bluffed and the General Manager in turn, has bluffed Nick that this is the General Manager's responsibility and not the Council’s.

The General Manager is wrong. The Council has responsibility under the Council's charter to be a responsible employer and to adopt policies that reflect this. It is then the General Manager's responsibility to operate under the policies. And just as the Department of Local Government has circulated to councils the advice that it is the council's decision, and not the general manager's, to sign or not sign a Referral Agreement, so it is the Council's responsibility to deal with issues of fairness and responsibility as an employer.

The Council can't see beyond the advice that they have a legal argument to deny Grant continuity of service and the dispute is now headed for arbitration in the Commission in August.

Federal Minister for Industrial Relations Joe Hockey was talking about the TriStar fiasco, but could just as easily be talking about Fairfield, when he said that employers had a moral obligation to the workers as well as a legal obligation and this should not be ignored. "Quite frankly, if any employer acts like a ratbag, then I won't hesitate to have the Office of Workplace Services to have a look at it". Well, Joe how about this?

The Council argues that the costs of acknowledging continuity are prohibitive. We know that there are 300 quarantined employees at Fairfield who continue to have an entitlement

under the industrial agreement. Fairfield refused to tell the Commission what the financial obligation is to this 300 but, regardless of how much it is, adding one more employee to this entitlement could not be more than a 0.3% increase. While the total obligation may be large, Grant's part in it, if the claim were to be accepted, is minimal.

We know that Nick is generally quite a generous bloke. In 2003 he was a bit embarrassed when he generously provided a Citizen of the Year award during an Australia Day citizenship and community awards ceremony to someone he believed was fighting fires in Canberra but was actually in jail for six years on fraud and guns charges. You can't get much fairer than that and a 0.3% increase in ongoing obligations to properly recognize Grant's contribution and laudable career path is infinitesimal.

Another Hunter fiasco

This photo is just so good, we had to put it in somewhere.

Kerry Hunt

President

Ian Robertson

Secretary