June depaNews

Gorne.

On 19 May, the SMH reported “the senior NSW bureaucrat who oversaw the controversial $250 million government fund at the centre of the pork barrelling enquiry has left his job”. That day, Department of Planning staff were told that the OLG Chief Executive would be “pursuing further career opportunities outside the business”. And Department of Planning Secretary Jim Betts told staff “we wish him every success with his future endeavours.”

He has resigned from the public service after 25 years.

On 9 June Senior Member Deborah Dinnen heard additional argument from the parties in support of submissions in writing already filed. The appeal filed by depa, is a response to a blanket rejection by OLG for access to documents relevant to the decision made by former OLG chief executive Tim Hurst on 5 February 2021 over a Code of Conduct breach by a Councillor at Wagga Wagga.

In particular, depa had pursued documents that may reveal how Tim Hurst’s order at paragraph 20 recorded that “this conduct occurred in a single episode, in the absence of any prior offending or post event conduct in the past two years and a lack of previous incidents of misconduct”, on the part of the Councillor, which is demonstrably untrue.

OLG had rejected our application under the GIPA Act on the basis that the “information sought was excluded information”, in that it was either part of, or “related to”, OLG’s investigation.

OLG filed evidence from their Manager of the Investigations Team, who was cross-examined by our barrister, and we had filed evidence of the process demonstrating factual errors in the Order and the steadfast refusal of the then OLG Chief Executive to respond to our emails pointing out these problems and asking for an explanation. OLG elected to not challenge this evidence...

This is not litigation at its most exciting or colourful. It’s interpretations of administrative law and, in particular, how broadly the expression “relates to” should be interpreted. We argued that process of the Chief Executive receiving a report and deliberating upon it and making a judgement was qualitatively different to the investigating process that preceded it.

The OLG’s argument means that they are not accountable for anything to do with an investigation because of protections under the GIPA Act and there are no options to allow access.

As it was eloquently and compellingly put by our barrister Ian Latham:

The absurdity of using such a paraphrase is that almost everything that the department does in consequence of the complaint would be covered by the definition. Details of a training course imposed as part of the disciplinary process would be so covered. Further, it would be covered by the definition without temporal limitation. The training course will be kept secret forever. Long after the state of New South Wales crumbled into the sea, there would be a file containing details of attendees at a Council training course. That could never be open to the public.

While the case is concluded and a decision reserved, the Senior Member invited the parties to provide any “extrinsic material” that may assist, including potentially second reading speeches and explanatory memoranda on the GIPA Bill, to allow the Tribunal to resolve issues affecting the transparency and accountability of the OLG.

Interestingly, the Office of the Information Commissioner applied to make submissions and in their 63 paragraph submission, focused solely on process and supported neither party. Considering that in the second reading speech by NSW Premier Nathan Rees on 17 June 2009, the Premier said “with these bills New South Wales will gain the nation’s best Freedom of Information laws. The public’s right to know must come first... Our public sector must embrace openness and transparency and governments must forever relinquish their habitual instinct to control information … this is supported by an explicit presumption in favour of disclosure”, this was a wasted opportunity. And given the Premier’s description of the Information Commissioner as a “new, independent champion of open Government”, hardly consistent with a champion of open government.

We have made additional submissions in response to the Senior Member’s invitation, seizing upon statements indicating a clear intention to improve transparency and integrity of government and end unnecessary secrecy.

This intention is clearly not evident in the way OLG conducts investigations, protects their findings and takes deliberate steps to avoid transparency and accountability.

We await the Senior Member’s determination.

Kiersten Fishburn has been appointed by the Secretary Department of Planning, Industry and Environment (DPIE) to replace Tim Hurst. Kiersten brings an impressive career in local government to a job that has been filled by career public servants with limited experience in local government, almost forever.

Six years as Manager Culture and Libraries at the City of Sydney, Director of the Casula Powerhouse Arts Centre for five years, and CEO of Liverpool City Council for almost 4 years until July 2020, we were sorry to see Kiersten go from Liverpool. She introduced a benign, modern and accountable approach and a progressive touch to local government Management in an organisation that desperately needed one. She was open and accessible and her appointment is welcomed.

I first met Kiersten in the IRC one morning and she had attended in a dispute she was having as CEO of Liverpool with the USU. I’d asked the combatants having an adjournment where the GM was and they said she was around the corner, so I bounded around to introduce myself and found her breast feeding. We still introduced each other and it was a great first impression for me of a CEO being a mum but also able to be tough, when needed. And another person who had introduced the kid to the IRC quite early in their life.

That’s the good news about the appointment. The bad news about the appointment is that Kiersten already has a full-time job - as Coordinator General, Planning Delivery Unit at DPIE, and will now be asked to continue that full-time role and add to it what has, up until recent years, a full-time Chief Executive role of the OLG. Historically, OLG and DLG before it, have not only had a full-time Director-General CEO, but a full-time Deputy as well. No wonder things are slow, and inaccessible and frustrating.

Does this say something about the NSW Government’s priorities on the regulation of local government?

GMs can do the darndest things! Leanne Barnes is the GM at Bega Valley Shire and we’ve just stopped her imposing a “pause” on progression for employees in the Council’s salary system.

In a process looking to save some money in the COVID-related fiscal pressures experienced by all councils, the GM and Executive developed a Draft Operational Plan and Budget 2021-2022 which included the following question and answer for staff:

Q.           Why has the annual salary increment been “paused”?

A.            Employee expenses are one of our largest costs. While we needed to find savings in the budget, the priority was to maintain our current staffing level and continue to deliver services for our community. Staff will receive the annual award increase of 2%.

Not a proposal at all really, because this was advice that it had been paused, not that it was being contemplated. And it was to be included in the public exhibition of the Draft Operational Plan and Budget, so the community have a say.

But apparently no one on the Executive knew that employees have rights under the State Award for an annual review and possible progression based on the acquisition and use of skills and/or performance. And worse, no one thought to ask anyone who did.

On 4 June we emailed the GM and her trusty advisors and you can see our email here. It’s an email that will be useful if your council is looking at similar steps to make employees responsible for the effect of the pandemic.

We said, no, sorry, you can’t do that, because your obligations under clause 7 Salary System prevent it. You can ask employees to forfeit it, and make a sacrifice, but you can’t simply decide to “pause” it and somehow put your obligations under the Award on hold. We urged them to take advice and they eventually contacted LGNSW.

I was thrilled to receive a thank you email from Leanne expressing her appreciation on behalf of the Council for pointing out that what they were trying to do was unlawful under the Award, and they were indebted for my advice. That’s not what they said of course, because always these withdrawals or retreats have to be expressed in a way that makes it look like they weren’t caught red-handed by the unions.

So Leanne said, “we considered your submission on the Operational Plan and most importantly the feedback and input from staff”.

Thanks Leanne, you’re welcome!

GMs can do the darndest things! Port Macquarie Hastings Council has just written to the unions saying that they have frozen an historic entitlement to payment for untaken sick leave. Not that they are contemplating doing it, and are interested in consulting to determine whether this historic practice is one where the Council has a unilateral right to change it, but that they have frozen it. From 11 May, apparently. Without telling the employees affected, nor the unions.

In 1993, John Fahey’s NSW Coalition Government decided that they didn’t like employers and unions agreeing to have arrangements for the payment of untaken sick leave. An odd thing to do, when you think about it, because a great deal of what the government had been saying before that was all about the rights of employers and employees to reach agreement on their employment conditions.

But the Government amended the Industrial Relations Act to prevent the payment of untaken sick leave being included in NSW Awards. This missed the target in local government where if employees have this as an entitlement, they invariably had it under some historic Council policy and as a condition of their employment.

There were some councils which thought that the change in legislation affected contractual entitlements not included in an award as well and tried to strip that entitlement from their own employees who may have had it under a policy or in some other ways condition of employment. Pretty stupid, really.

Bit by bit we were able to convince the councils to restore the entitlement but it was not until an industrial officer of the USU, Brian Harris, launched a prosecution of Murrurundi Shire for trying to remove a policy entitlement thinking because they had misunderstood the legislative change.

Beaten in the first argument before the Chief Industrial Magistrate, the Industrial Court on appeal overwhelmingly found for the union, and provided us all with an enduring principle about those things an employer can change, and those things they can’t.

So, when PMHC wrote to the unions on Friday 4 June saying “the current arrangements in Council’s Termination and Exit Procedure, allowing for the payment of sick leave for employees who commence with Council prior to 10 July 2008, is inconsistent with Section 27 of the NSW Industrial Relations Act”, here was another Council misunderstanding the legislation.

And in a brief discussion, it was clear that the Council had no idea at all how long this practice had existed, when it began and why, whether it was council resolutions creating a policy (which it turns out it was, with Port Macquarie Municipal Council doing it in the 1970s or so) or what. That would have been a good idea before they launched into it.

Again, like Bega Valley, they hadn’t sought advice from anyone who knew what they were doing, and are now doing so, we met to discuss it today, and next month we’ll let you know how this ends. Probably another thank you from a grateful GM for our involvement!

In the meantime, if you’d like to see a Judgement of the NSW Industrial Court that really smashes an employer, here is the link

The Local Government (COVID-19) Splinter (Interim) Award 2021`was made to operate from 8 April 2021 for 76 councils, varied to add another 18 from 28 April and then again on 10 June for some dawdlers - Burwood, the City of Sydney, the City of Parramatta, Sutherland and Upper Hunter.

Clearly, these councils didn’t want to rush into anything, even if it was as relatively simple as continuing protections available under the 2020 Splinter Award.