Ombudsman (sic), cars, Bankstown does the right thing but someone else doesn't.

More and more councils sign Referral Agreements(back)

Referral Agreements between councils and unions allow unfair dismissals and dispute issues arising from the Local Government (State) Award or the local enterprise agreement (or NAPSA if you insist) to be dealt with by the New South Wales Industrial Relations Commission.

While we wait for the High Court to decide whether WorkChoices is constitutionally valid, depa wants councils to sign up to agreements that allow us to continue to operate in the NSW Commission. There are signed Referral Agreements in operation at the following councils:

The Local Government and Shires Associations continue to encourage councils to sign Referral Agreements as part of their opposition to WorkChoices.

Beware the Internal Ombudsman(back)

A number of councils have created positions of Internal Ombudsman to investigate complaints against Council staff or councillors. These people are supposed to be capable investigators and impartial decision-makers.

While most councils are taking a wait-and-see approach to WorkChoices, many are occupying this spare time with enquiries or disciplinary processes. We are involved at the moment at a number of councils doing this.

While those councils which have introduced an Office of the Internal Ombudsman have done so to allow investigations to be carried out at arm's length, and then report to the General Manager, the quality of these Offices and their staff is highly variable. Just because these people are meant to be experts in investigation does not mean that they are also experts in recognizing employee rights, either under the Disciplinary Procedures clause of the Award or in the more general sense of natural justice.

Recent experiences mean we have considerable confidence in the Office at Sutherland (which can be contracted to other councils and could turn up anywhere) but very little at Warringah.

The documentation and policies about the operation of Warringah’s Office of the Internal Ombudsman is confusing and inconsistent. In one document it asserts that employees are obliged to respond to questioning but in another acknowledges a right to remain silent. In one document it asserts that the employee must accept the General Manager’s decision but another acknowledges appeal rights under "relevant legislation". They can't tell you what "relevant legislation" is and none of the documentation acknowledges rights under the Award. Not very helpful, is it?

What Warringah failed to do in establishing their system was to allow the unions to provide feedback on the way they proposed to operate. We have much higher standards of literacy and rigour in examining documentation than those who drafted it and, once the unions have signed off on it, employees can be confident that the process is fair. We are now trying to address this retrospectively.

This note is inserted in the Bulletin as a warning to members. Don't presume, because the Council asserts that their process is appropriate, that it is either appropriate or fair or in any way recognizes your rights.

Shoddy practices and policies are not solely the province of Warringah. We have been in dispute with Campbelltown City Council since May over flaws in their investigation policy. Originally they thought that could bumble around, dawdling with an investigation where the Award requires that they "properly conduct and speedily conclude” it".

It was Rafferty's rules and any input we had was sneered at by the two directors responsible (one of whom did so much eye-rolling that we wonder whether any other symptoms of Tourette's syndrome have manifested themselves in recent weeks) but the Council, confronted by a Commissioner of the Industrial Relations Commission who also believed that their policies needed review, then undertook to review them with our input.

Regrettably two months elapsed and nothing has happened. A reminder letter to the General Manager prompted the drafting of a "flowchart" but nothing at all remotely like the review of policies they had promised.

The dispute returns to the Commission shortly and the Commission will remind them of their obligations. You would think that Campbelltown understood that they shouldn't tell people they are going to do things and then fail to do them.

Car, cars and more cars. Arguments about cars, that is(back)

If it isn’t Bega, it’s Blacktown, or Clarence Valley or Manly.

You will have already seen the stupidest letter ever written in local government - when Manly Council wrote to us and said that leaseback agreements were private arrangements between employees and the Council and not something to discuss with a union. Manly was, of course, quite wrong about that and have now had the pleasure of our company and a discussion in the Commission and at Manly and resuming in the Commission on 3 October.

The most important advice about leaseback agreements is that no one should sign an agreement that does not make it very clear how and when fees are reviewed and increased. We have been giving this advice for years but there are still agreements being signed that provide absolute discretion to the general managers to do whatever they like.

The recent spike in petrol prices (which we hope we have lived through), a legitimate concern about the environment and collapsing values of 6 cylinder cars on the second-hand market have made it a bad time to have an argument about leaseback fees. But when the argument does start, the answer is often in the agreement itself.

Does the agreement allow the fee to be increased by anything other than the CPI? Does the agreement allow the fee to be increased more regularly than annually? Do employees have letters offering employment with a specific standard of car as part of the deal?

If the High Court decides that WorkChoices survives, and if councils are constitutional corporations and if the anti-employee Federal Government continues past the next election, then employees like our members (where there is acknowledged to be a skills shortage) will have to become more mobile. If a Council starts to introduce hostile working conditions and AWAs, the employees can vote with their feet and move to a more attractive and inviting Council next door.

Cars, and whether they are acknowledged to be something that is part of the Council's ability to attract and retain staff, will increasingly become part of an employee's consideration when looking at where they should work. If Manly gets away with charging $135 for its six-cylinder car and you can get one at Pittwater or Mosman for around $85, why would you go to Manly?

We are always happy to review proposed car arrangements and leaseback agreements and give feedback about what needs to be incorporated in local arrangements to better protect your rights.

BPB crashes into Burwood (back)

We thought the BPB had gone fairly quiet after our altercation with them late last year where we put a ban on councils supplying information that would allow the BPB to sniff around and carry out random audits of councils. We thought, as did the LGSA at the time, that they had no legislative power to do this. And they didn't go ahead and do it.

We thought they were probably busy doing what they should be doing - accrediting private certifiers and responding to the multitude of complaints against them.

But, because the BPB can't wait to get its hands on councils, they had changed the attack.

Acting on a complaint by the Fire Brigade to the Department of Planning, the BPB has carried out an audit of the activities of Burwood Council in a major development where Burwood was the PCA. The Council's role at the building concerned (already reviewed and cleared by the NSW Ombudsman and the ICAC following other complaints by the Fire Brigade) was alleged to have had an inadequate fire engineering solution.

While it might have been the work of the CSIRO and another eminent fire expert, the Brigade had a different view. Clearly the Brigade is unhappy that it doesn't have a veto power.

The General Manager at Burwood allowed the BPB to review files but, supporting our members at the Council, refused to agree to the BPB request that Council staff accompany them on an inspection. To try and resolve the impasse, we attended a meeting with the Council, three representatives on the BPB (none of them fire engineering experts) and a legal officer from the LGSA.

At the meeting the BPB was unable to specify exactly what the complaint was that had been made by the Fire Brigade. Between the three of them and a big fat file, they really couldn't say, they couldn't find anything on the file but undertook to specify the complaint so that the Council could give further consideration to the request.

The BPB does have the power to audit councils under section 118P of their Act and, if the BPB turns up at your Council alleging that the carrying out an audit, you are entitled to have them specify how they satisfy the various requirements of section 118P. But they don't have power to require Council employees to accompany them.

This issue continues at Burwood. We suspect, because it's abundantly clear that BPB staff are nowhere near as qualified or experienced as Council employees, that they need help on the inspection and technical advice. That's tough, they can't require it and they don't deserve it.

Please advise us if similar situations arise at your councils. At Burwood we think the BPB is wasting its time responding to a vexatious complaint that has already been canvassed, without the result the Fire Brigade wanted, in other places. At some stage, the BPB has to tell the Fire Brigade that if they want a veto power on fire engineering then they should pursue that as a political campaign with the legislators and stop harassing local councils.

You would think the BPB had an interest in preventing people harassing local councils - that is, after all, what they see as their role.

All disputes settled at Bankstown (back)

Something unusual has happened at Bankstown. At last, after years of offensive and belligerent behaviour, they are acting like a responsible employer and have resolved three disputes with us in the past two months.

One of those was the long-running dispute over their obligations to construct a salary system that complies with the Award. Their frustrating activity in this dispute, frustrating both for us and for the Commission, led to us filing 13 individual prosecutions in the Industrial Court.

Happily we advise that we were able to confirm to the Industrial Court on 26 September that "the dispute had been settled" and we withdrew the prosecutions. The advice "the dispute has been settled" is all we are allowed to say under the confidentiality provision of the Deed which settled the dispute. But that's enough.

This is a very happy result. It's a pity that while major changes are happening at the Council which mean that Bankstown is now less hostile to depa, the advocate for the Council said that he had been "instructed" to ask that the prosecutions be "dismissed" rather than allowing the prosecutor to withdraw them. We are pursuing whether there was an instruction or whether this was just characteristic unpleasantness.

But if things keep going happily at Bankstown, it might start to be a nice place to work again.

It's time to go Peter (back)

How long is too long? When the Local Government Superannuation Scheme was established in July 1997, members of the Working Party (including the depa Secretary) agreed that the Chair of the Board would rotate every four years between the employer and employee representatives. This is a normal arrangement on superannuation boards where half the members represent the contributors and half represent the employers.

Famous local government identity and then a councilor, Peter Woods was the inaugural Chair. Woods was the President of the LGA at the time - a position under the LGA Constitution with a limited term of two years but a position that Woods continued to occupy for twelve.

In 2001 the depa Secretary Ian Robertson and the LGEA’s Martin O’Connell raised the four-year term and the need to give the employee reps their turn. For a variety of reasons, the USU made an agreement with Peter Woods that he would be supported in the role as Chair for as long as Brian Harris was the General Secretary of the USU. Then it would be time to hand over to a representative of the employees. Fair’s fair.

Brian Harris retired from that position this week but the LGSS Board has been unable to dislodge Woods from the position of Chair.

Superannuation Boards require a three-quarter vote to be a majority and while in recent meetings there have been plenty of four all votes calling for him to stand down and to introduce an orderly transition to an employee representative, Woods remains there - refusing to debate the matter and trying to secure the extension of time.

Woods has been Chair for more than nine years. The position should be rotated, as all other industry and government superannuation funds operate, between the representatives of the employees and the reset representatives of the employers. Woods intransigence is unacceptable.

At the LGSS Board meeting on 27 September, the Board welcomed Brian Harris as a new USU representative but even having Brian there, to remind Woods of the deal and the need now to stand down, could not dislodge him.

The only thing more patronising and offensive than Woods’ refusal to stand down (supported by the other employer representatives on the Board - Blacktown Mayor Leo Kelly, Hurstville Councillor Beverly Giegerl and Shires Association Patron John Wearne) is the assertion they know better than us about the attitudes of our members.

We think they are wrong but we would like to know what you do think. You can use this link http://app.intellicontact.com/icp/sub/survey/start?sid=3486&cid=37499 now to express a view about whether Peter Woods, consistent with the principal of the Divine Right of Kings and can stay there as long as he damn well pleases. Or you can vote that you think it's time he moved on and gave the employee representatives their rightful turn. A transition that should have happened in 2001 and is now grossly and ludicrously overdue.

Use the link and tell us whether Woods can stay for life or whether proper governance requires a smooth transition and a fair rotation between the employee and employer representatives.

Finally, because when we tell members about this they do wonder what those on the Board get paid, the employee reps have it paid to their unions and don’t accept it personally but the employer representatives accept it as income.

Who cares about Garrett v Freeman (back)

This is a case currently in the Land and Environment Court, so we can't say anything that might be prejudicial, but we have been approached by members anxious about the implications of a procedural decision of the Court.

Freeman, an employee at Hastings Council, has been prosecuted under the National Parks and Wildlife Act 1974 for building a road through an area which contained two endangered species. It is alleged in this prosecution that in building the road, a management plan for the area was ignored.

The issue that creates the anxiety is that Freeman's defence was that section 731 of the Local Government Act provided an indemnity. This is the section that allows employees and some others to avoid personal action, liability, claim or demand if what they did was "done in good faith for the purpose of executing this or any other Act etc".

We make no observations about what Freeman is alleged to have done or not done. We have spoken to both the office of the Minister for Local Government and the Director-General of the Department and have been assured by both that when the case is finalised, if there is any inadvertent reduction in the protection intended to be provided by section 731, then the Government will fix it.

The Government remains committed to the protection provided in section 731. So relax.

We welcome two organisations rising from the ashes... (back)

We thought they had disappeared forever but the AIEH has contacted us asking us to promote their next conference. We are happy to do so.

The Australian Institute of Environmental Health will be holding their 33rd National Conference in Sydney from 8 to 10 November 2006 at the Four Points by Sheraton. The theme of the conference is "Environmental Health - What Lies Beneath".

You can find details of the conference at www.2006.aieh.org.au

For more than four years now depa has had a Strategic Alliance with the Planning Institute of Australia's Local Government Network. When this was originally signed, the activist responsible for their activities was Graeme Gardner, the Director at Greater Taree Council.

The Local Government Network ran some very successful conferences in the Hunter, at Mudgee and at Port Stephens but nothing this year. Graham needed a break and the Network is looking for enthusiasts and has sought our assistance in finding them.

We have more than 300 members who are planners and, if you are interested, invite you to contact a depa member, Narelle Butler at Canada Bay. Narelle is one of a group of people reviving the Network.

Tony McNamara of Canada Bay City Council has been appointed as the new chair of the Local Government Planners Network Committee of PIA and they want to hear from any planners working in Local Government interested in getting involved in the work of the Committee.

The Committee intends to promote issues that affect planners working in local government by fostering a more effective working partnership with State government on planning policy.

Further details on the work of the Committee are included in a framework document titled "Planning Needs You" and available from Narelle on narelle.butler@canadabay.nsw.gov.au

Whoops, we thought that Food Authority had it all under control (back)

Well, we were wrong. In the last Bulletin we advised that a trial group of councils had been set up to test category B food surveillance. We apologise to the councils we listed because our list was wrong.

The list, however, had been resolved by the Food Regulation Partnership – a group established by the Food Authority as an attempt at consultation and participation just to show local government that the Authority was not going to be bossy and authoritarian and tell people what they should do.

What we didn’t know was that after the Partnership resolved to adopt those twelve councils as the sample, some councils didn’t want to do it and the Food Authority, abandoning their commitment to consultation and partnership, made up their own list.

Sorry about that. Pity about the concept of partnership but the list, now determined unilaterally by the Authority is Albury, Ballina, Blue Mountains, Broken Hill, Campbelltown, Dubbo, Griffith, Narromine, Newcastle, Shoalhaven, Tumbarumba and Wyong.

"An Inconvenient Truth" (back)

This is a stunning film: an authoritative, well-researched and scientific analysis about global warming and the threat of climate change to all of us. You have probably heard of it already, made by Al Gore, who describes himself as "the ex-next President of the USA" and a man with an interest in global warming from his time at university in the 70s.

We never review movies (and don't intend to make a practice of it) but everyone should see this film. It is genuinely life changing.

Ian Robertson

Secretary