November depaNews

In our April issue we complimented the Building Commissioner for the prohibition orders since December 2020 and an Enforceable Undertaking that week which prompted our article. Courageously on the Building Commissioner’s website they claim they are “Leading a once-in-a-generation reform of the design and building industry”, a bold call but the evidence of achievements so far is very impressive

And it just keeps getting better. In the next week or two the NSW Government will announce a rating system for developers. A crash hot, capable, thorough and honourable developer could get five stars, others will struggle to get one, or even a half. But it will mean for the first time that when consumers buy off the plan, or even after construction, they can make an informed judgement about the risk associated with the developer who constructed the building, based upon those stars.

A survey of more than 500 apartment buildings in NSW earlier this year found 90% of Strata managers or nominated members of Strata committees would not recommend buying a unit off the plan to a friend or family member.

We met with building Commissioner David Chandler on 23 November at a meeting organised via an introduction from LGNSW CEO Scott Phillips. Originally scheduled for half an hour, we finished just short of an hour and a half. It was a very impressive experience.

The SMH that morning had reported proceedings the day before in David Shoebridge MLC’s Upper House Committee. David Shoebridge is really the Leader of the Opposition in NSW and proceedings in the Upper House Inquiry provide Parliamentary privilege to witnesses.

Shoebridge had asked the Building Commissioner some questions and he didn’t hold back. He accused the builder of the Opal Tower of being involved in multiple projects across the city which are “embroiled” in legal action with apartment owners over alleged defects.

He had also received what he described as an “audacious” request from lawyers for the builder, Icon Co, “to relinquish his powers to refer directors of the corporate watchdog if he determines that they have not acted properly”.

The SMH quotes Mr Chandler saying, “The moment I got this I just looked at it and said, ‘you are joking’. I basically said, well good luck with that. I’ll see you in the Supreme Court ...”

It was the Opal Tower and the Mascot Tower that’s forced the NSW government to do something about the construction industry and establish a building watchdog. This is no lapdog, this is a seriously dangerous, carnivorous watchdog, pursuing those damaging the reputation of the construction industry.

He had also said, “why don’t you stop spending your money on litigation and go and fix the defects … If you simply added up all of the litigation that is surrounding these five projects it’d be a very large number”.

Given the way NSW Government has managed building and development historically, and particularly over the last three or four decades, it seems extraordinary that they would have acted to establish a watchdog with such overwhelming legal powers and capacity and they are continuing to build its resourcing. Too bold for Labor. 

In describing the proposal to rate developers and builders of residential buildings, Mr Chandler told the enquiry, “this is monumental. It will be long-lasting, and it will be game changing. This is a regulated rating system as opposed to a Trip advisor-type system”.

Notably he also told the enquiry that there was “potentially 10 developers, 10 builders, 10 certifiers and 10 engineers that probably represent 80% of the defects that I’ve seen”

Here is a link to the SMH article..

While Elizabeth Farrelly, the incomparable SMH columnist, author, architecture critic and essayist writes beautifully and compellingly about nearly everything, she saves her best for when she writes about developers. And she did precisely that in the SMH weekend edition on 27-28 November.

Enjoy this and the first five members to email us to say that they loved it will receive a copy of Ms Farrelly’s book Killing Sydney - The Fight For a City’s Soul.

depa supports it, the sooner the better, and no one should be going to a council counter or workplace who isn’t fully vaccinated. The evidence is now that it won’t be long before 95% of Sydney over the age of 12 will be fully vaccinated and before school returns in 2022, vaccinations will be recommended and available for kids over the age of 5.

LGNSW has been cautious, as have the other unions, concerned with the rights of individual members but, at the same time, the rights of the majority to demand a fully vaccinated workplace. That’s a difficult position to manage.

Councils have surveyed staff and found high levels of support for mandatory vaccination and deadlines are being set out into January, and potentially February, when non-vaccinated staff will be prohibited from returning to the workplace. They won’t be made redundant, their employment will be terminated by the employee refusing to accept a reasonable health and safety requirement of the employer.

The initial 10% of people claiming they won’t be vaccinated was analysed by advertising expert Dee Madigan in an episode of Gruen, and she believed that of that 10%, half of them could be won across to supporting vaccination, but it was a complete waste of time to talk to the other half.

An ultimatum to vaccinate or lose your job is pretty persuasive!

That seems to be true of local government and as we see from news reports on demonstrations of people calling for “freedom” and individual rights, and railing against discrimination, it’s an argument that for some people will be impossible to accept.

While it seems improbable that depaNews would have ever quoted Senator Jacqui Lambie, it’s hard to go past her refreshing assault on those opposing vaccination in the Senate on 22 November:

“Being held accountable for your own actions isn’t called discrimination, it’s called being...a goddam bloody adult... It’s putting others before yourself. And that’s what this country is supposed to be about”.

Go Jacqui! Timely advice with a fourth wave out of control in Europe, and now Omicron …

On 10 November we advised the Office of Local Government at the Employment Reference Group meeting, of the historic consensus between the unions and LGNSW to transition senior staff into continuing employment under the Local Government State Award.

There are changes that would need to be made to the Local Government Act and decisions would also need to be made about when senior staff would transition into continuing employment after the legislative changes were made. OLG has asked for a comprehensive consensus position on all of these considerations. Lots to talk about.

Realistically, if the unions and LGNSW have already agreed with the ICAC recommendations from Operation Dasha that there is a corruption risk in having directors as senior staff and capable of being terminated for no reason, then the legislative change, once it does happen, should start operating relatively quickly. If the industrial parties accept it’s a corruption risk, and have now agreed to fix it, it should be fixed.

The package of proposals is intended to be provided to the Minister for Local Government before the end of the year. We have a high expectation that the Minister is able to have the Government agree to those changes quickly. This will involve a decision of Cabinet, the drafting of amendments by what is still called the Parliamentary Draughtsman (sic) and then getting in the queue next year with all the other legislative changes.

The Minister may well want to allow a period of consultation. This will allow those general managers who should be rejoicing that they will now be protected from pressure from councillors to sack the Director of Planning, but who can’t quite get past losing their power to unfairly sack directors, to have a say. That’s all well and good, if there are GM’s opposing it, we should know who they are. It’s like the overwhelming evidence that people want to be able to identify trolls.

There are also GMs who will need to be educated about the Award so they understand that the Award provides for performance agreements and other things about which they have little knowledge or understanding.

The unions and LGNSW will meet on 30 November.

The Minister for Local Government announced months ago that Mr Gary Kellar PSM had been appointed to carry out a review following his membership of an expert panel reviewing local government misconduct framework in Queensland in 2017. He was also the GM of Logan City Council for 26 years, so he would have seen his share of councillors behaving badly.

In correspondence to depa and others on 26 November, the Office of Local Government provided the Terms of Reference and a Consultation paper for the review which has nominated a deadline for submissions of 28 March 2022. That’s four months’ notice, and while that’s plenty of time to get a good submission together, it’s also enough time to forget about it.

This is a big deal for us. This year we went through a farce with OLG when we challenged factual errors in a report by the then CEO Tim Hurst. Mr Hurst had found in a code of conduct investigation into a complaint against a Wagga Wagga City Councillor Paul Funnell, that while there should be a suspension and a penalty, there had been no previous form, nor any other complaints waiting investigation - two observations that were demonstrably untrue. We demonstrated it but OLG backed Hurst. And they continue to do so. Cover up, did you say?

We discovered OLG was established in such a way that when they conduct their investigations they are beyond challenge, information is inaccessible under GIPA and even demonstrably untrue findings can only be reviewed if OLG agrees to. And because OLG had refused to do so, we went to NCAT to obtain documents and that decision remains reserved.

We can’t wait to make a submission to the enquiry but there will be lots more of your out there who have been dissatisfied with the way OLG has managed complaints and this is your opportunity.

One of our concerns is that the penalty regime against councillors should, like penalties imposed in the ARL, carry on to the next term, or next season if it were the ARL. Former Councillor Funnell resigned, citing ill-health, a few months ago and everyone was suspicious he was trying to dodge further findings in one or more of the complaints that were in the pipeline when Hurst made his flawed decision.

We know that there were findings about to be made against him that would have been more significant. In one of his daily Facebook rants he attacked OLG for threatening him with “three-months’ suspension” for posting something on the local rag’s website - action which drew multiple complaints, including from us.

Funnell is standing again in the election next weekend, and because of restrictions upon OLG, some of which are clearly self-imposed, those outstanding penalties are unlikely to be imposed.

Bruce Dunlop is our delegate at Camden City Council, has been for years and almost two years ago expressed an interest in standing for the election for the Committee in 2020. At the time we had enough nominations with the NSW Electoral Office for all positions up for election, and rather than force an election by nominating, with the significant costs associated with that, he decided not to stand.

That meant Bruce was on the bench, and when Renah Givney, a Planner from Coffs Harbour resigned from both Coffs and depa as Vice President because she was moving to a far more lucrative and rewarding position in the Department of Planning (take that Coffs, clearly it’s time to review the competitiveness of your salaries and conditions) here was an opportunity for Bruce to run on, late in the game to provide a high impact performance boost.

The Committee used its powers under the Rules to appoint members to casual vacancies and resolved in October to appoint current Member of the Committee, Vince Galetto from Ryde Council, to the vacant position of Vice President and Bruce to the vacated position of Committee Member.

Welcome, Bruce. Bruce attended the November meeting and will attend the February meeting and participate in the regular exchanges between the Secretary and members of the Committee and any electronic votes, prior to the election in 2022.

Lots of good news in this issue! The Committee of Management meeting on 11 November resolved that union fees will remain at the comparatively and ridiculously low rates of $520 for members in full-time work, $260 for part-time members and (insert figure) for trainees.

Maybe it has something to do with living through a pandemic, focusing on trying to manage appropriate distancing amongst staff, rotating employees through working from home and from the office, then everyone working from home and now developing policies to require everyone to be vaccinated, but it hasn’t been a bad year.

Looking back over the last decade and a bit, we’ve seen Bankstown win in 2010, Greater Taree in 2011, Lismore in 2012, Fairfield in 2013, Shoalhaven int 2014 and 2015, Campbelltown in 2016, Tweed Shire in 2017, Richmond Valley in 2018, Narrabri in 2019 and Sutherland last year.

One Council has had forty employees resign since 2019, directors and managers included, and have a real problem with workplace culture, claims of bullying and workers compensation, so they seem keen to get another award. Another has had nine industrial disputes filed against them in the last twelve months (including one by us) when they’d be unlucky to have one or two a year, and all while the person in charge of HR was off on parental leave, and they had a temp filling in!

 Who knows who else has been out there going hard for this prestigious acknowledgement?

There is still time to get a nomination in as well. You can send you a nomination to