November depaNews

Last month we reported on our industrial dispute filed with Local Government NSW representing councils over the apparent underpayment of superannuation by a significant number of councils. This affected some of the 4500 employees remaining in the two closed defined benefit schemes managed by LGS - the Retirement Scheme and the Defined Benefits Scheme.

We’d had two unsatisfying meetings with LGS and LGNSW before the dispute came on in the Commission. For both LGS and LGNSW, this was all about someone else’s responsibility. LGS claimed it was the councils or the individual employees and LGNSW claimed it was LGS or the employees.

With a new CEO as a replacement for the irreplaceable and much-loved Peter Lambert, David Smith found himself between a rock and a hard place. The advice he was getting was coming from those sections of the organisation where we could reasonably expect would have been ensuring compliance with the rules over the years. Uh oh …

A direction from Chief Commissioner Kite to depa as the notifier to invite the “proper officer” of LGS to attend and assist the Commission on the next occasion led to a couple of lawyers and the LGS CEO with a couple of others attending the Commission on 3 November. But it wasn’t the bad experience that it could have been.

On 1 November the LGS Board had met and in an email to the parties the CEO advised it had resolved to direct the CEO to do two things:

• “to undertake an investigation into the allegations of non-compliance” as detailed in the (depa dispute) before the IRC “and providing the investigation substantiates non-compliance, as the LGS CEO to determine whether any LGS members in either the Retirement Fund all the Defined Benefit scheme had been adversely impacted.
• To seek appropriate external advice to establish a reasonable approach to determine and quantify the extent of any financial impact on LGS members for me to develop an appropriate remediation plan for Board approval to be applied to correct any non-compliance and make recommendations to the LGS Trustee Board including any suggested amendments to the Trust Deed or LGS policies and procedures, with a view to ensuring all employers are calculating superable salary correctly.”

Clearly the Three Wise Monkeys strategy presented to LGNSW and the unions in the previous meetings had been abandoned. And a good thing too.

CEO David Smith had also written to the Chief Commissioner accepting this responsibility and committing to both investigating and resolving any adverse effect on members of the fund. Here is his letter.

On that basis the Chief Commissioner was happy to adjourn our dispute until 30 January for a report back. LGS is putting on an additional resource to properly review and examine compliance with 1.2 and 1.3 and the Fund will also report to depa, the other unions in support and LGNSW about progress prior to Xmas.

Yesterday the LGS wrote to all councils as the next step in this process and you can see that letter here.

We’ve smashed through the wall and the Board has the staff doing what they should have been doing all along. Well done to the Board and the new CEO David Smith.

(And I’d like to thank those 150 or so members who responded and provided an individual authority for depa to act to obtain information that may be said by either the Fund or their Council to be confidential, to the extent necessary to resolve this dispute. We probably won’t need them now, but better to be sure than sorry.)

When our industrial dispute about LGNSW’s purported Local Government Capability Framework (sic) was listed before Chief Commissioner Kite on 10 October, the Chief Commissioner required the parties to do two things.

The first (done within 24 hours or so and with a firm suggestion that LGNSW consult with the unions to find, as far as possible, an agreed form of words) was for LGNSW to put some information on their website as soon as possible warning the zealots off using the Capability Framework (sic) until the relevant development tools and guides had been prepared.

Second, that there be a focus on developing tools and guides for the appropriate use of the document for those who choose to use it. This was a process anticipating the involvement of the unions so that we do understand what it is and what isn’t so that when it is out there infecting the industry, we have some idea of what it’s for and what it shouldn’t be for.

We meet again next week and while we return to the IRC on 30 November LGNSW has still not provided any draft of tools and guidelines to discuss when we do meet.

The Office of Local Government has prepared a Draft of a proposed new Model Code of Conduct. Remembering that it will become mandatory, so it’s worth a look. Here is a link.

There are significant additions in areas of harassment, discrimination and bullying and proposed 3.9 provides a definition of “bullying behaviour” as “any behaviour in which a person or a group of people repeatedly behaves unreasonably towards another Council official or a group of Council officials and the behaviour creates a risk to health and safety.”

Ooooooo, there is one Council in particular for whom that will be a significant risk. We’ve been dealing with an oppressive and bullying culture now for almost 9 months. Bit by bit the Council throws significant money at treating the unacceptable personal behaviour but also requires employees working under that person to be part of the treatment. Employees have been provided with training and workshops to learn communication skills and assertiveness sufficient to remind the bloke when he is distressing them or employees are in tears in front of him, it’s not appropriate. We can think of a better strategy.

We will be putting in a submission to OLG on the Draft Model Code before the closure date. Obviously we are interested in things like the protection in 5.5 that “the political views of a Councillor do not constitute a private interest for the purposes of clause 5.2” but for staff, the current provision at 7.4 (e) requires staff to “ensure that any participation in political activities outside the service of the Council does not conflict with the performance of their official duties” is intended to continue.

A better protection for the councillors by the look of it, and more restrictions on staff.

Members need to be aware of the current provision in the Code of Conduct known as the Wollongong provision when it was introduced. It’s found at the section titled “Inappropriate interactions” and prevents at 7.5(i)“Council staff meeting with applicants or objectors alone AND outside office hours to discuss applications or proposals.”

This was entirely appropriate when it went into the Model Code because the ICAC had revealed Council staff working away from the office and outside hours. Everyone assumed it prevented Council staff not meeting with developers outside hours and off the premises.

But we are aware of at least one Council which has taken the view that this, in its broadest interpretation, prevents employees of the Council when they are not working (that is, out of hours or on weekends) giving advice or assistance to friends and family in any dealing with the Council.

And when we checked this interpretation with the Office of Local Government, they agreed that in a broad sense that kind of activity could be affected. WTF?

Beware of this risk. Everyone needs to check whether their Council reads this provision as broadly as this before you help your Mum get an application together.

We will deal with the unreasonably broad interpretation of this provision in our submission.

Almost December, can that be right? As extraordinary as it might sound, 2017 has seen what can only be described as an outbreak of pretty good behaviour by HR. Maybe the mergers preoccupied people with developing PDs, recognising protections of staff while consolidating practices as best they can, or something’s gone in the drinking water, or my presentation as part of a panel at the LGNSW HR conference the end of 2016 was so beguiling, instructive and compelling that those HR people present were transformed and started to look after the interests and welfare of employees, instead of just seeing them as targets, or possible cost savings.

But something has happened - to the extent that sometimes we wonder what we’ll do in December when we need to announce our prestigious, authoritative and highly-anticipated Worst HR In Local Government Award - more popularly known as the Golden Turd.