February depaNews

The heading could equally have been “Councillor behaving badly” but an Order made by Tim Hurst, Deputy Secretary, Local Government, Planning and Policy on 5 February 2021 has such a glaring and demonstrably untrue observation in paragraph 20, that there can be no better explanation than the OLG site having been hacked.

Wagga Wagga Councillor Paul Funnell is one of those rugged individuals who as a councillor believes that he better represents the community by ripping into Council staff when he thinks they need it. And in a public way. He does it regularly, he has been subject to a series of Code of Conduct complaints (including one from us last year) made by other councillors and Council staff. Most recently on 5 February 2021 by Tim Hurst, Deputy Secretary, Local Government, Planning and Policy who made orders against him under the Local Government Act. We know him as the bloke in charge of the Office of Local Government.

Cllr Funnell was ordered to apologise and cease engaging in this unsatisfactory conduct. Here is the Order.

He was directed, “Specifically, to cease engaging in conduct that causes, comprises or involves intimidation or verbal abuse and to cease engaging in conduct that is overbearing or threatening to Council staff” and that he “apologise to Council staff and councillors for inappropriate behaviour towards them on 19 November 2018”. Doesn’t he sound a charmer.

He was suspended as a Councillor from 19 February until 18 March 2021.

There have been so many complaints (and the complaints are done largely confidentially so it’s hard to be too authoritative) but earlier on 25 November 2019 he was censured for a breach of the Code by the Council for his treatment of a fellow councillor in November 2017.

And, on 12 October 2020, in response to multiple complaints, including one by depa, the Council formally censured him for a breach of the procedures of the Code and resolved to refer it to the Office of Local Government “for further action under the misconduct provisions of the Local Government Act 1993 (NSW).” OLG hasn’t acted on this yet, but they do have it.

But, when Tim Hurst issued the Order on 5 February at paragraph 20 he said this:

I have 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.

And that, being a demonstrable error of fact, has many up in arms. Not just the Council, or those who have made complaints over the years, or depa as a complainant, but members of the public as well.

Tim has got it wrong. There has been both “prior offending” and “post-event conduct in the past two years”. In the Investigator’s response to us as a complainant last year the Investigator listed “the existence of previous proven breaches; the breaches forming part of an ongoing pattern of behaviour; and the reputational harm to Council arising from the breaches”.

Those dismayed have written to OLG, and so have we. We emailed first on 11 February under the heading “Chinese or Russian hackers have been on your site and changed clause 20”, intending that the subject at least catch the eye of a busy bureaucrat, then after hearing nothing back, sent a follow-up demonstrating both pre and post offending on 16 February and, when the silence continued, a further follow-up with another example on 22 February.

You can see our email persistence here.

Tim Hurst must act now or there can be no credibility for OLG in managing either the processes or the penalties arising from breaches of the Code of Conduct.

Fix it, Tim.

Well, it’s about time, but the NSW Building Commissioner has used the new powers of his office to issue prohibition orders to four developers stopping them getting occupation certificates until defects have been fixed. The prohibition orders prevent developers and builders from settling apartments until the defects are fixed.

A 10-storey apartment building at Forster with defects in waterproofing and external cladding has been served a prohibition order. This, no one will be surprised to hear, is a privately certified building.

Another privately certified 6-storey apartment building in Strathfield, with serious structural defects has been served a prohibition order, with Commissioner David Chandler quoted in the SMH on 18 February as saying the building was “one of the worst he had seen, leaving him no choice but to issue a stop-work order”.

A development of townhouses in Lindfield has been stopped to fix wall and bathroom tiles and waterproofing, and in a wonderful coincidence has been certified by Dix Gardner, our very favourite certifiers! That’s a shock, isn’t it.

Another privately certified apartment building in Lidcombe near Sydney Olympic Park has been stopped and ordered to fix waterproofing and tiling defects.

And developers of properties in Neutral Bay and Mascot have also been ordered to fix serious defects in mechanical car-stacking systems being installed. Both of these are privately certified as well. Bit of a pattern here, don’t you think?

These problems have all arisen from audits that have identified problems not detected by the relevant PCA. The SMH again quotes “he signalled more notices would be handed out in coming weeks”. Go hard, David.

Bloody hell, after all these years, what can we possibly say?

Told you so, told you so, told you so.

Pictured above are Parramatta City CEO Brett Newman, social historian Karl Marx and Parramatta’s Chief People and Culture Officer, Bernadette Kavanagh - three unlikely people to be together at Highgate Cemetery, and to be relevant to the story.

Brett Newman is the latest CEO at Parramatta (the eighth in the last 20 years) and comes to Parramatta with a history in property and property development, most recently with Property NSW and Stockland. Karl Marx was a social historian and critic of the capitalist state and a significant historic figure. Bernadette Cavanagh came to Parramatta 12 months ago with a recent background in HR. Neither Brett nor Bernadette know anything about obligations under the Local Government State Award, and seeing the first award in 1992 was made more than 100 years after Marx’s death, the three of them have that in common.

But, in 1852 Marx wrote an essay titled The Eighteenth Brumiere of Louis Napoleon, in which he uttered his famous quote that historical entities and circumstances can happen twice - “the first as tragedy, then as farce”. While he was writing about Napoleon 1 and then his subsequent successor Louis Napoleon or Napoleon III, he was also anticipating our dealings with Parramatta.

In 2010 we had a dispute with the former Parramatta Council when it raised its intention to charge employees to park their leaseback cars in the Council carpark, meaning that employees would be charged for bringing the Council’s car to work. When local negotiations failed, we filed a dispute which came on before then Deputy President Grayson, who, grilled the Council’s lawyer about the unusual suggestion that employees should have to pay to park the Council’s car and, after relatively short proceedings, adjourned with the suggestion that the Council reconsider their position.

Which they did quickly, and decided it wasn’t such a good idea after all. Tragedy.

In December 2020, CEO Brett Newman emailed all staff telling them that he had decided to change policies and procedures which would require employees to pay to park in Council carparks and where, not having learned or even been aware of the lessons of history, didn’t exclude those with leaseback cars. Farce.

We know that sometimes it’s hard for people who come from outside local government to understand that there might be industrial instruments that oblige them to do certain things, or even that those instruments might require them if they want to make changes to car arrangements for leaseback cars, to do it in a consultative way through the consultative committee. Neither Brett nor Bernadette would have had any experience with these kinds of obligations, so they were lucky we are very forgiving.

We wrote to Brett and Bernadette the day Brett announced his intention, introducing ourselves and providing some of the history in case they thought they were doing something original. And they ignored us, sending a cursory response that didn’t exempt leaseback cars at 4:53pm on Wednesday 23 December when most of us had packed up and gone on leave. Then, on our return from leave, steadfastly refusing to deal with our repeated requests to clarify what happens to people with leaseback cars and ignoring increasingly urgent emails because we needed to protect our members against being charged for parking from 1 March.

This is probably not because they’re bad people (we don’t know them well enough to make that judgement yet) but because they really didn’t understand what the problem was, nor how farcical their behaviour was becoming.

So we filed a dispute again (mercifully Deputy President Grayson had retired because he would have loved it) but sure enough with assistance from LGNSW and the Council’s own more junior industrial staff who do know what they’re doing, we finally received the clarification we were looking for. We didn’t need a ludicrous two-page letter failing to deal with the issue that we rejected and sent back, all we needed was those four or five very, very short sentences.

And on that basis we discontinued the proceedings without the need to even attend once -  although I’m sure Commissioner Murphy would have enjoyed Marx’s analysis.

We’ll have more to do with Parramatta, you can feel it.

LGNSW is the authoritative policy development and Council lobby group and employers’ organisation but, when you get down to it, their members are the councillors. While we have good relationships with their industrial staff and others, sometimes it’s the councillors that get to call the shots on issues that really should be left to others.

LGNSW understands committing to a principal and their historic and unwavering opposition to rate-pegging is a perfect example. It’s a political position they’ve taken and prosecuted for almost as long as we’ve pursued our contempt for term contracts and the capacity for employers to sack people unfairly. We admire their tenacity and commitment.

This year, we’ll be pushing hard with our continuing campaign to remove the standard contract for levels below the GM. Piecemeal and minor changes to the standard contract that fall short of this are a disappointment, as is any refusal to prevent the termination of employees on the standard contract without mandatory mediation. Or an opportunity to test the fairness of termination in an accessible and cost-free tribunal.

LGNSW has surveyed their “members” and come back with a policy view that they will not support the removal of the standard contract. We are disappointed about that, and we look forward to some political leadership beyond the self-interest of councillors who like the idea of being able to get rid of GM’s and others without scrutiny and oversight.