What a refreshing change. A crook confesses at ICAC

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Published: Wednesday, 22 June 2022 12:47

It was a long time coming and hugely anticipated from the merger of Hurstville and Kogarah in 2016 to create Georges River, with the high profile major players, one Liberal and one Labor, happy to help developers by overriding planning proposals from Council staff. In doing so, they created an environment hostile to staff, particularly senior staff, that explains why Georges River spent over $200,000 in 2019/20 on code of conduct complaints, more than $2.5 million to date on legal costs associated with the current three year ICAC investigation, Operation Galley, and another $1.2 million in the draft budget for 2022/2023 to cover the continuing costs of the investigation.

The ICAC is currently investigating two current councillors, Labor’s Vince Badalati and the Liberals’ Con Hindi (yes Con, maybe better to revert to Constantine now) and one former councillor, independent Phillip Sansom.

These three are being pursued to determine whether they “sought and/or accepted benefits as an inducement or reward for partially and dishonestly exercising their official functions to favour the interests“  of two big developers. The Corruption Commission is also investigating whether between 2014 and 2021 the three councillors “deliberately failed to declare or properly manage any conflict-of-interest arising from their relationships with” the two developers.

But wait there’s more, they are also investigating whether the two developers “provided benefits, including overseas flights and accommodation to Councillors Hindi, Badalati and Sansom, as a reward or inducement to favour their interests in relation to Council decisions regarding planning matters” affecting what have been described as the Treacy Street and Landmark Square developments.

ICAC investigations can be slow and grinding affairs, witnesses hedging, dodging and weaving, but the first witness, former Mayor Badalati, confessed that on two occasions a developer had provided him with a bag of cash, once containing $70,000 and on the second occasion, $100,000. Uh oh, and that he was with Councillor Hindi at the time and he received the same payments

Councillor Hindi has not yet given evidence but there have only been two days of hearings, opening submissions and while Badalati has confessed, Hindi and Sansom are yet to give evidence.

It’s astonishing how much time and effort can be spent on one councillor - in the last 12 months reporting period, Georges River forwarded 28 Code of Conduct complaints to the Office of Local Government, 22 of which related to Hindi. What an astonishing waste of ratepayer funds that could have filled staff positions and provided services.

This is a story that will continue. It comes as an enormous relief to Council staff whose recommendations have been overridden and whose focus on proper, orderly and lawful planning, has been treated with contempt. It’s been a hostile, aggressive and bullying environment for staff and while it’s clear that ICAC will get scalps, it’s more important to normalise relationships between councillors and Council staff, and to have those surviving councillors develop a proper respect for each other’s role. And stop the harassment.

Speaking of corruptibility, how are OLG and the Minister moving to implement the industry’s consensus on ”no reason” sackings?

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Published: Wednesday, 22 June 2022 12:47

The former CEO of OLG, Tim Hurst, for years told the unions and LGNSW that all we needed to do was to have a consensus position and OLG would refer it to the Minister and get things happening. With hindsight, clearly he was taunting us, because he would not have thought a consensus possible, but since October last year (yes eight months ago) there has been a consensus between the employers’ organisation and the unions to amend the Act so that the only senior staff employee would be the GM. And all other current senior staff positions would be employed under the Award.

Unfair and unreasonable sackings of people who should not have been sacked have been business as usual in the industry, and include close enough to 20 GMs sacked, or who’ve resigned, since the local government elections in December last year.

In 2016, the ICAC first referred to the need to review “no reason” sackings when councillors at Mid-Western had threatened the GM that if he didn’t sack the Director of Planning, and for good measure, also the Director Corporate Services, they would sack him. In a more focused way, the Commission referred to the unacceptable nature of “no reason” terminations in Operation Dasha into the former Canterbury and recommended it be fixed.

Too many GM’s have been threatened that if they didn’t sack the Director of Planning (the usual threat), the Council would sack them. This is a significant corruption risk but one where removing the risk is easy. Easy or not, it’s not being embraced as an easy solution to a corruption risk and facilitated as quickly as LGNSW and the unions would like.

OLG’s regular meetings with the employers and unions operate confidentially but it can be said that in the eight months, there has been limited action to keep the Minister briefed, and if there is to be some consultation with the industry, no one is rushing into it.  

Things just move slowly, there is a backlash by tyrants and those reluctant to forfeit their right to sack unfairly, running stealthily in the background. Clandestine and secretive, none of the opponents are game to publish anything for fear of appearing self-seeking, naive or clueless, or unaware how employment works under the Award.

The employers’ representatives and the unions have now agreed to put together a brief rebuttal of the arguments being discussed in clandestine and secret places. If the tyrants are so confident, why can’t they put it in writing for a proper debate?

Mosman Council was prepared to identify six easily rebuttable reasons when they forced a review of the October decision at the special LG NSW conference in March and where the position of the LGNSW Board was unanimously endorsed.

The Act could be changed by the end of this year, we’ve seen how quickly, almost instantly, the Minister and those responsible for the process can move during COVID, but it will require something more than the sloth-like progress from OLG, and that in turn slowing the Minister, for this to happen.

depa appeals NCAT decision supporting unnecessary and unacceptable OLG confidentiality

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Published: Wednesday, 22 June 2022 12:46

There’s no point having a GIPA Act, which when it was made was proudly claimed by the NSW Premier at the time, Nathan Reese, to set a new standard in allowing access to government information, if it doesn’t do so. Neither does it make any sense having an Information Commissioner more interested in the denial of information, than providing access to it. Nathan would be very disappointed.

NCAT found against us when we wanted access to documents within OLG which would explain how their CEO at the time could have made such a fundamental mistake in an order that the councillor concerned had no priors, nor any subsequent complaints in the pipeline. Both those statements were wrong.

How the investigation was conducted, by whom, or who was interviewed was not the purpose of our application. The application was not pursuing information which is locked away by exclusions to the GIPA Act that would make any totalitarian regime green with envy, but how the CEO could have considered an informed report from the investigators and still have got it factually wrong.

We hope for greater success with the appeal but in an environment where the Minister for Local Government has appointed an independent reviewer to review the framework of councillor complaints, and how they’re handled by OLG, including the embarrassing and astonishingly slow timeframes, it doesn’t hurt to keep reminding people about the failures of the current system.

Fair Work Commission increases the minimum wage by 5.2%

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Published: Wednesday, 22 June 2022 09:07

The Fair Work Commission on 15 June lifted the national minimum wage by 5.2%, noting a “sharp increase in the cost of living”. Labor had campaigned in the 21 May Federal election to support an increase in the minimum wage because “we did not want people who are on the minimum wage to go backwards” and having won the election and formed Government, did precisely that. Minister for Employment and Minister for Workplace Relations Tony Burke MP ceremoniously brandishes the submission to the FWC, above.

What a nice change to have a government interested in protecting the 2.7 million or so workers on the minimum wage who will, from 1 July, receive a 5.2% increase, or $40 a week, whichever is the greater. The Commission delayed the increase for the aviation, tourism and hospitality sectors due to “exceptional circumstances”, including their slow recovery from the Covid recession.

And as these things go, there will be pressure from the trade union movement to flow that increase across federal awards.

Procedurally, the NSW Industrial Relations Commission will convene a State Wage Case to determine whether that increase in the federal minimum wage should be reflected in the New South Wales system.

And just as federal unions pursue that increase for their members in federal awards, New South Wales unions would pursue whatever came out of the State Wage Case for their members as well.

No immediate money for local government with an increase of 2% due from the first pay period after 1 July, which is way, way behind inflation and is effectively a wage cut, but is locked in.

Petrol, groceries, meat, all the staples, $39 a kilo for green beans, FFS!

Now we have a federal government that thinks it’s okay to be a union member and have unions involved in the debate, here is a brilliant ad prepared by the ACTU as part of a broad national recruitment campaign.

 https://www.youtube.com/watch?v=3qrTJgz72os

Watch the 30 seconds, enjoy its powerful message, it can bring a tear to the eye, and sign up your workmates to depa.

The last pay increase in the 2020 Award is from the first pay period after 1 July

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Published: Wednesday, 18 May 2022 13:00

When the 2020 Local Government State Award was made in June 2020, things were different. There was a pandemic, we had no idea about any likely impact on employment, there were public sector pay policies with limits, and we were lucky to get an increase of 1.5% from the first pay period after 1 July 2020 (much more than the State public sector subsequently received) and it provided increases of 2% from the first pay period after 1 July 2021 and 1 July 2022. The 2% increases were in anticipation that there would be an increase in the Superannuation Guarantee Charge from those dates as well.

Very soon after that final pay increase in July, the unions and LGNSW will get together their logs of claim and negotiations will begin.

We invite members to email us suggestions about what you’d like to see in the 2023 State Award.

There is plenty of time to do so and it goes without saying we understand that if inflation is running at 5%, then 2% or 2.5% just won’t cut it. And our experience with Covid reminded us that back prior to 1995, if you became sick or injured while on annual or long service leave to the extent that you didn’t get a benefit from the leave, then it could be recredited and you would get sick leave instead. It was forfeited as a cost saving in the bundle of others, but it’s worth reviving in the discussions this year.

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.