May depaNews

The historic consensus between the unions and LGNSW to get rid of the standard contract for senior staff (other than the GM) had momentum from the moment the agreement was reached. For five years or more, the OLG CEO at the time Tim Hurst, had repeatedly told us all we needed to do was present a consensus position, and OLG would act on it.

Maybe he was taunting us, expecting that would never happen, but it has happened. On 15 October 2021 the LGNSW Board, after taking advice from their Industrial Advisory Committee and officers of the ICAC, resolved to support removing the second layer of councils from senior staff and the historic consensus was established. Pow, off it went!

And the momentum increased when LGNSW’s Special Conference on 1 March considered a rescission motion by reactionaries and barbarians at Mosman Council, and overwhelmingly reaffirmed their commitment. At last, the risk identified by the ICAC in reports on Mid-Western and the former Canterbury could be properly managed.

Things move slowly with OLG at the best of times and since October last year the issue gets regularly pressed for a bit more action at the six-weekly meetings of the OLG’s Employment Reference Group with the unions and the LGNSW.

But now, LGNSW has raised problems with the standard contract that are now more evident with the eighteen or so GM’s who have been terminated or left with a negotiated settlement after the last local government elections. Those problems are so significant that they must be the final nail in the coffin.

When a GM is sacked, or moves on, the Council appoints one of the directors, invariably on a senior staff contract to the job temporarily while they appoint a replacement. This is the first problem. The minimum period in the Local Government Act for an appointment to a senior staff position is twelve months but councils have been ignoring this requirement, thinking they had an option under the Local Government Act to do this, when they don’t. Some councils have attempted to avoid the problem by trying to make it a temporary appointment under the Award, but that doesn’t really work either.

And the second problem is that because the standard contract of the Director appointed temporarily (leaving aside that this is not legally available under the Act) provides that there are only two ways that the employee can receive a pay increase - either the annual SOORT increase in common with senior executives in the New South Wales public service, or the annual review. There is no capacity to pay anyone on the senior staff contract to act up in the higher position but every Council who has done this, since the senior staff contract was created, has done it outside the provisions of the contract. Uh oh …

So, you can’t temporarily appoint someone, and if you do so anyway, you can’t pay them unless you can find a way around it. How has this flaw continued for so long?

A mischievous lawyer might tell you that if it is not allowable under the employment contract, but the Council resolves to pay money anyway, then it is unlawful and could trigger action under the dreaded and threatening Division 2-Surcharging where the OLG has the capacity under section 435 to disallow the expenditure and surcharge the councillors or the staff for the amount disallowed.  

The contract is now indefensible and OLG and the Minister need to ensure that the legislative changes necessary to leave only the GM as senior staff on the standard contract happen this calendar year.

Not these two blokes, surely!

David Farmer (on right in picture) is the go to GM in the industry to get councils out of significant financial trouble. He did it with Wollongong, then to Ipswich, and now is CEO of Central Coast. He is a numbers man par excellence but a little bit old-fashioned about how to motivate senior executives, holding the view that nothing motivates people like fearing for their job. He can be disarmingly charming, but if he has a fault, it has to be in his soft skills.

At a time when the industry has acknowledged the impracticalities and risks of “no reason” termination in the standard contract, David thought he’d take the opportunity before anything happens legislatively, to start flowing the standard contract down into the manager level below the directors. Central Coast is in the process of advertising three unit manager positions for Environmental Compliance Systems, Facilities and Asset Management, and Governance and Legal.

He gave an undertaking to the unions that no existing employee need become senior staff on the standard contract, but he will put new appointees on the contract, and have the Administrator Rik Hart as the Council enable this, by resolving they are senior staff positions.

As a GM at Warringah and Inner West he was no fan of the standard contract but was clearly prepared to be the Council that would introduce the inflexibility and misery of the standard contract down to the third level of managers.

And there’s setting the farce of the Council making a series of changes to those positions which are identified as senior staff, but then, if the jobs are filled by existing staff, the resolution would need to be rescinded. Really, why bother, when it’s so easy to have a proper performance agreement under the terms of the Award for even the most onerous and demanding positions?

Here is our most recent letter to the CEO dated 6 May asking him to stop, a compelling argument and with email exchanges between us as we tried to convince him that he was on the wrong side of history. We’ve not yet had a reply, but on 17 May we reminded him that we are expecting one. We may have changed his mind and you can read more about this next month.

Yes, this is an image of Sagittarius A, the massive black hole discovered and photographed only last week, right in the middle of our galaxy. It’s incomprehensibly huge and powerful, it’s 26 million kilometres in diameter and 25,640 light years from Earth.

OLG has regularly been characterised as a bureaucratic equivalent of the Bermuda Triangle, and as a black hole, and while investigations and reports might take years and years from the initial complaint, if your next complaint about the behaviour of a councillor heads for Sagittarius A, it will be gone forever. There’d be bureaucrats over the years at OLG who would envy that.

It’s notorious we wanted some documents from OLG, not about an investigation, but about the decision following an investigation that would allow us to understand what appeared to be factual mistakes made by former CEO Tim Hurst over a councillor at Wagga Wagga. And, in particular, that Hurst had “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”. This in turn meant that the recidivist serial offender got off lightly.

The GIPA Act was introduced as a bill into the Legislative Assembly by the NSW Labor Premier at the time Nathan Rees, who described it as a huge step that would be best practice in Australia for allowing access to documents previously unreasonably denied, and at the same time established the Office of the Information Commissioner to ensure this would be best practice in access for the public to decisions of government that had affected them.

So it seems hugely inconsistent we would find ourselves in NCAT with OLG unreasonably denying access and with the Office of the Information Commissioner vigorously supporting them.

The GIPA Act excludes access to information about investigations conducted by OLG and while we didn’t want to know about the investigation, just how the decision was made subsequent to the investigation, we know OLG rejected our request, even before our $30 cheque would have arrived in the mail to their Nowra Office, we thought it unreasonable and went to NCAT for a remedy.

Last week NCAT rejected our request, deciding if OLG says it’s excluded information, then it must be excluded and unavailable for review - untouched by the ambitions of Premier Rees and the ambitious transparency of the GIPA Act and a theoretically enabling Information Commissioner.

This is enormously disappointing, inconsistent with the purpose of the GIPA Act and we are looking at our options. While OLG has the power to withhold the information, they also have the capacity to exercise a discretion to provide it. Maybe we should ask them nicely? Again.

Here is a summary of the judgement by our barrister Ian Latham.

When the 2020 Local Government State Award was made in June 2020, things were different. There was a pandemic, we had no idea about any likely impact on employment, there were public sector pay policies with limits, and we were lucky to get an increase of 1.5% from the first pay period after 1 July 2020 (much more than the State public sector subsequently received) and it provided increases of 2% from the first pay period after 1 July 2021 and 1 July 2022. The 2% increases were in anticipation that there would be an increase in the Superannuation Guarantee Charge from those dates as well.

Very soon after that final pay increase in July, the unions and LGNSW will get together their logs of claim and negotiations will begin.

We invite members to email us suggestions about what you’d like to see in the 2023 State Award.

There is plenty of time to do so and it goes without saying we understand that if inflation is running at 5%, then 2% or 2.5% just won’t cut it. And our experience with Covid reminded us that back prior to 1995, if you became sick or injured while on annual or long service leave to the extent that you didn’t get a benefit from the leave, then it could be recredited and you would get sick leave instead. It was forfeited as a cost saving in the bundle of others, but it’s worth reviving in the discussions this year.