February depaNews

When we happened to be the only people in the world who thought to ask a very simple question late last year about why employees with cars at the former Kogarah were receiving a value for those cars in the calculation of “superable” salary for superannuation purposes, and their colleagues in the Georges River merger from the former Hurstville were not, we had no idea what we were getting into.

But what the heck, we were off and running. LGS after an initial period of hostility and trying to blame everyone else is now doing everything to pursue compliance with the Fund’s own requirements for those in the Retirement Scheme and the Defined Benefits Scheme. The IRC is supportive with timetabling and encouragement and LGNSW is pressing its members to provide the information we need to work out just how big this problem is.

When the dispute was listed last in 2017 before Chief Commissioner Kite, LGS undertook to use the annual survey on superable salary to provide more information and obtain as much as they could about the extent of the problem.  LGS kept the parties advised of the documents as they were going out and the dispute was relisted for 30 January - the day after the deadline imposed by LGS for the information to be provided.

Only 38% of councils had responded in time.  January is not a good time and LGS said this is pretty consistent with their expectations.  While this is a disappointing response, it’s not a bad sample and it showed:

• 1506 of 4544 employees were covered by those responses - 33% of all members affected,
• 311 of those 1560 employees had access to a private use car but LGS claimed only 137 “required a value to be reported”. 

We can assume that those employees who didn’t require a value to be reported would be senior staff and senior staff contracts where the Council would have reported a TRP.

The IRC has an extremely valuable role to play here because it can direct the attendance of councils not cooperating and the Chief Commissioner provided an encouraging paragraph to be included in LGS follow-up correspondence.  The dispute was relisted for a further report on 21 February with the understanding that the words of encouragement would be included in correspondence from LGS the following day or so to the outstanding 62% of councils, there would be telephone follow-up and LGNSW would be actively chasing up those councils as well.
 
On 21 February when the dispute resumed, all councils had responded - the last slacker Council (which LGS would not name) responding only the day before.
 
We will meet with LGS on 8 March after they’ve had time to check, analyse and validate the responses and present some exact figures.  The information provided, before analysis and validation, shows 4402 employees in the funds affected, 328 employees where the Council claimed a value had been reported but of course it’s those councils that didn’t report a value but where employees have private use of a Council car, which need to be identified as well.

But there is a limit to the value of this information.  It will show which councils are providing a value for the private use of the Council car in superable salary but only prospectively for 2018.  It will then require a forensic examination of individual records to determine which councils had been doing so in 2017, 2016 and so on all the way back to when this became a clear and unequivocal obligation in 2003.
 
Clearly this is going to be a long haul.
 
We have 145 members who’ve given written consent for depa to have access to information held by both the employer/s and LGS which might ordinarily be regarded by either as confidential to the extent necessary to settle this dispute.  It may well be we can use those members and their consent to audit those councils.  If you are a member affected by this dispute but you have not provided your written consent, it would be a good idea to do so now.
 
While we will have some information on the current position (and we know of one Council in particular that has confessed to employees that “for the first time”, they will be doing it right) it’s going to take a long, long time to go back and research this sufficiently to work out how to deal with it.  At the very worst, it could involve a forensic examination of salary histories and the employer advice on every single person with a Council car, at each or every of their councils, going back over the last 15 years...

And then we’ll have to start looking at people who retired since 2003 and see how they were treated.  LGS has accepted that after we have reached a settlement for those currently employed, they will write to members of the relevant funds who have retired since 2003 to see if they want to make a claim.  We’ve had a few members contact us from that category and we are committed to assisting mopping up for the retired members as well.

But this is a big deal.  It is also a very, very, very big job.  It won’t be finished this year but we will have a better idea of the figures after our next meeting on 8 March.

In December we reported on our two unfortunate members injured at work where the Council and their insurer StateCover had accepted liability for psychological injury directly attributable to the behaviour of management.  That means that the injuries to our members were not their fault, even though we know GM Troy Green is reluctant to use those words.  We know that because we pressed him to do so. Yes, it is your fault Troy. You’re the boss.
 
To have one employee on workers compensation for hazardous, unacceptable and unpleasant behaviour by the same manager is one thing, but two is quite something else.

But now there are four.  The two new claims are not our members and, unfortunately for them, not members of any union, but one has a workers compensation claim in the same directorate as our members, and the other elsewhere.  What is it about Tweed?

Significantly, our first dispute this year was filed when the Council terminated the employment of our first member injured by the Council early in January.  It was a termination with a significant number of procedural flaws, no sensitivity, compassion or sympathy, and no evidence of care.  It’s one thing to have medical evidence identifying that the employee can’t return to that workplace (at least without four of the management going, starting at the top) but it’s another to bump them out the door in the first weeks of January when medical and industrial advice is hard to get.  It’s hard to imagine that the timing was mere coincidence, with the closure of our office and the advice the employee would have needed.
 
The dispute continues.

And now StateCover is starting to wonder.  Two accepted claims and two more to be determined in the next week or so. The Council must be getting close to being uninsurable.

We’ve just stopped a Council, which has been breaching the Award and stealing money from employees by making them work more than 35 hours a week in their tracks.  Mergers have the advantage, as we’ve seen at Georges River, of identifying things that don’t look right and where questions need to be asked.
 
When Murray River was formed by the merger of Murray Shire and Wakool, a member from Wakool was offered a job requiring a 36 hour week.  And he asked the obvious question - both reasonably and politely.  Not the obvious way with a, WTF!

But the Council was reluctant to answer the question, behaving as if ignoring it would make it go away.  We now know that historically, that has worked for them.  Then we became involved, they were reluctant to answer our questions as well and significantly frustrated by this stonewalling, we filed a dispute in December to have the IRC help find the answers.

We didn’t know whether we were talking to people who didn’t understand, or were a bit slow, or who’d been sprung at last and were trying to hide it, but before Commissioner Newall on 18 December it was agreed that LGNSW would work with the Council to try to understand what was happening.

What was happening was that Murray Shire (for longer than anyone was prepared to acknowledge) had been making 35 hour week employees work 36.  It was claimed this allowed them to accumulate sufficient hours to close the place over Xmas/New Year but the calculation showed that collecting up to 52 additional hours (or even 44, if you assume people take a bit of leave) they were ripping off the staff.

We understand that members from Murray Shire had done the calculations, worked out that they didn’t add up and asked for explanations from management years ago but they were ignored.  We understand how that happened because when we asked the same reasonable questions they ignored us. We had a phone conversation going through the maths of it all and there was almost a begrudging realisation about what was going on (their calculation had clearly been based on a 38 hour week), so clearly the lightbulb is starting to glimmer, although quite weakly.  We thought it was a sign they got it but then they went into hiding.
 
What we were asking was how many employees had been affected by this and for how long.  Reasonable questions, lawful questions and questions deserving an answer, but we got nothing.

depa is hard to ignore and with extremely valuable assistance from LGNSW we have now resolved the dispute for three depa members and four LGEA members (for reasons we don’t understand, USU members didn’t think there was a problem) with an agreed calculation to establish compensation going back six years.

The Council was keen to keep the settlement in individual Deeds of Release with confidentiality provisions and, for the sake of a settlement like this, we agreed.  This has been done.
 
But really, what’s going on down there?  The deeds our members signed required the payment to be made within seven days and the Council failed to comply with the requirements of the deed for each of our three members.  Almost as if they were asserting some bizarre corporate value of intransigence and wilful disobedience.
 
They failed by only a day or two, but a breach is a breach and clearly down at Murray River Shire there are far too many things well-beyond their understanding and capacity.

What else have they been hiding at the old Murray Shire?
 
This could be a regular part of depaNews because today we discover that the same HR Manager has a proposal to change the alignment of the pay periods now that Murray River has merged. She provides three options that are being considered and one of them allows for employees choosing to make up for a week when they don’t get paid with “one week of cashed out annual or long service leave”.

Jeeze Mary, do you mind.  The Award does not allow the cashing out of annual leave or long service leave under any circumstances.  It does allow long service leave to be taken at double pay but that requires someone not to be at work and on leave.  Clearly it’s time for someone to attend an LGNSW course on how the Award works....

In 2016 and 2017 depaNews covered the moves by the NSW Government to dismantle the Industrial Relations Commission.  They separated its two constituent parts - the Industrial Court, which was moved into the Supreme Court, and the Commission itself and its primary responsibility to conciliate and settle disputes by agreement, to remain as a separate entity.  A separate entity with a Chief Commissioner and four Commissioners supported by 14 staff working for the Commissioners and in the NSW Industrial Registry.
 
But the Government doesn’t understand what the Commission does, and initial plans to move the five Commissioners and their staff to Goulburn Street to fit into the NCAT building (because that was a tribunal made from of a variety of parts and roles they thought the Commission could be hammered into) were so flawed that they didn’t proceed.
 
The courtrooms were too small and the parties appearing wouldn’t fit, there were no separate conference or negotiating rooms for those occasions when the Commission was conciliating with one side while the others remain somewhere else, and it was given up as folly.
 
But now the Government is up to no good again - proposing to move the IRC from the Sydney CBD to Parramatta without consultation with any of those people who use the services of the Commission.  No-one spoke to the employers’ organisations, no-one spoke to LGNSW representing 120 or so councils in NSW, no-one spoke to the individual unions which appear in the Commission, no-one spoke to UnionsNSW, no-one spoke to the Bar Association representing the barristers who appear, no-one spoke to the Law Society representing the solicitors and no-one spoke to the employees who would be affected, the members of the Commission, or the head of the jurisdiction.
 
This is NSW Government consultation at its proudest.
 
The complication has been that it’s hard to identify who would have consulted.  Described as a decision of “Government”, no-one is prepared to say who made the decision.  No-one knows whether it was made by all members of the Government, the Cabinet, an individual minister or even a couple of them, staggering home late one night from the Parliamentary bar and wondering why they shouldn’t send 14 people out from the CBD to Parramatta as part of the Government’s commitment to moving people to the west.  A small step of course, but an important one made in those circumstances.

Bit, by bit, the information has been revealed with draft floorplans as well.  The plan is to move the IRC out of the CBD without asking anyone who uses the system whether that’s good, bad or indifferent, and move it to Parramatta - 10 Smith Street, to be precise.

When you go to a museum or gallery or some other kind of Government institution they invariably ask you your postcode, so they have some idea of where the punters are coming from.  But no one did this - a relatively simple request could be made by court reporters asking advocates and lawyers appearing to record the postcode of their office or chambers.  Far too sensible and clearly not desirable because it would show virtually everyone who appears in the IRC has an office or chambers in the CBD.  Except probably us, with our office at Five Dock.

If governments don’t properly disclose why they’re doing things then we hapless citizens and users of government services try to work out why this would have happened, what was the motive.  Moving 14 people out to the west is clearly not the reason.
 
It’s hard for the Government to confess that the beautiful 19th century Victorian Chief Secretary’s building in Bridge Street that currently houses the Industrial Relations Commission and offices for the NSW Governor would be a marvellous piece of prime real estate that has had greedy, drooling developers trying to get their rapacious fat fingers on for decades.  The Government has already sold the Department of Education building, it’s only a matter of time before the other beautiful building in Bridge Street occupied by the Department of Planning for decades goes as well. Then they will all be lost to public ownership and access.

This is a good time to remind everyone with leaseback cars that if you sign a leaseback agreement, it means you have to comply with your part of the bargain.  It’s a contractual arrangement, you have to allow the fees to be collected, you might have to wash the car, you will need to look after it as if it’s your own, you will have to avoid motorsport, and you will also have to report any damage to the people running the fleet.  Usually a leaseback agreement requires all damage to be reported and some require “all damage, no matter how minor”.

Make sure you do.  If you don’t, it’s breaching a condition of the lease and you can be absolutely certain that there will be another provision in the lease in which breaches of the provisions may see the end of your car.  One day, someone will get you.

If you turn up to report some damage, and the people running the fleet tell you not to bother, make sure you get that advice from them in writing.  Just for later.
 
If the car has been repaired and you go to pick it up and don’t think it’s been repaired properly, don’t accept it or make sure you properly document with those who accepted it back from the panel beater those things that have not been done properly, so you don’t get blamed later.

If you have a leaseback agreement, read it so you understand it.

We spend a lot of our time arguing about fleet management and leaseback arrangements with councils but leaseback arrangements continue dependent upon those people with the Council cars not abusing the arrangement.  Just saying...

The NSW Electoral Office has established a timetable for our elections this year.  They will post notices to all financial members on Monday 12 March and nominations will close at 12 noon on Tuesday 27 March.

The Electoral Office will conduct elections for two-year terms for one President, two Vice Presidents, six members of the Committee of Management, and a four-year term for the Secretary.
 
Our elections are normally fairly orderly processes, because we do invite members to let us know if they’re interested and it’s always members that have acted as a delegate or a member of a consultative committee for years who think they might do something more, so it is rare for there to be surprises.  We could do without our own Lord Buckethead.