August depaNews

There’s sloth-like progress, and then there’s OLG and/or the Minister for Local Government looking perilously like they are becalmed. It’s no use emailing or ringing our office to ask what’s going on, we don’t know and neither does anyone else outside OLG and the Minister’s Office. We know how fast the Minister can act and deliver legislative changes when the Minister wants to but it’s two months since that last article in the June issue.

In response to recommendations from the ICAC and a tawdry history of unfair sackings, LGNSW Board first resolved to get rid of “no reason” termination of senior staff other than the GM and established an historic consensus with the unions in October 2021. The CEO of OLG had taunted LGNSW and the unions for years that if we could deliver a consensus, the OLG and the Minister would do something about it. Here it is, established almost a year ago, but it hasn’t happened.

Tyrants opposed it, but in March this year the LGNSW Board’s decision was reinforced by a special conference of councils which allowed tyrants to challenge it but the consensus was overwhelmingly endorsed with unanimous vote. No dissent.

The OLG Employment Reference Group, comprised of representatives of the three unions and LGNSW with OLG officers, on 27 July unanimously endorsed a draft Discussion Paper that had been prepared by OLG officers and amendments proposed by LGNSW had been readily accepted. The draft document was headed “August”, when we would have liked “July”, but now, on 25 August, there is not a peep from OLG, nor in particular, the Minister’s office.

By coincidence there has been an Upper House Committee investigating the appointment of former National Party leader Jon Barilaro to a cushy trade job, he had created as Minister, in New York. In a double page spread in the SMH on 12 August, the paper dealt with the potential conflict that arises with public servants, even those in very highly paid senior positions, when at risk of having their employment terminated at the whim of the Minister. The dreaded “no reason” clause that local government as an industry has now decided must go.

“Over six weeks of evidence, the enquiry has prised open the internal machinations of the public service to lay bare the muddied line separating the state’s most highly paid public servants and the government ministers who can hire or fire them on a whim.

Witnesses in their evidence have proclaimed the lofty ideals of the government sector that operates without fear or favour. But lines of questioning have more often revealed political pressure and nervous bureaucrats. ’The relationship between politicians and the public service is a perennial challenge,’ says Andrew Podger, a former senior bureaucrat and Public Service Commissioner.

‘Problems of excessive political pressure are occurring across jurisdictions and are not confined to one side of politics or the other... Clearly the head of Investment NSW felt constrained in exercising her authority, and pressure was known also to the head of the NSW Premier’s Department.

No public sector of employment, whether it be Federal State or local government, can operate without fear or favour in providing advice or making decisions while ever those responsible for the recommendations and decisions can be hired or fired “on a whim”. No reason, no recourse, no fairness, no justice, nothing.

Neither the employers’ organisation nor the unions understand why something aimed at satisfying recommendations of the ICAC, and removing capricious and unfair sacking of good employees is being treated with so little respect. The Discussion Paper, endorsed by the industrial parties, can still be distributed this month ...

How can it be that a light-hearted observation by Chief Building Surveyor Greg Brook in a Teams team meeting on 29 July 2020 (about a continuing disagreement between the Manager and the building surveyors over cumbersome and inhospitable software) could explode so dangerously like this.

The acting manager saw a recording of the Teams meeting, believed she had been disrespected in a way that did not allow Greg to meet with her informally and apologise for what was basically an inside joke with his team and then move on, but required a formal disciplinary interview and potential disciplinary action. Like using a wheel to break a butterfly, for want of a better analogy.

At that meeting, Greg’s further apology was treated with disdain and an observation that it was a surprise he had apologised, and things just got worse. HR didn’t intervene to protect Greg, followed with some training/re-education about how things are done at Lake Macquarie, and Greg was psychologically injured. On 25 August he left the office on sick leave and never returned.

Here’s a link to earlier treatment of Greg in 2016 that earned them a nomination in our annual HR awards. A series of actions that came to a humiliating conclusion for the HR person who conducted the partial investigation when the GM intervened to remove a punitive financial penalty and agreed that if there were no issues, it would all come off his file in twelve months, which it did.

Greg filed a workers compensation claim through the union’s lawyers, the insurer secretly filmed him and the Council argued that he wasn’t sufficiently damaged if he could go and buy groceries or meet a colleague for dinner in the local pub; they provided no information to his team about what had happened to Greg; they changed the Fair Trading accreditation practices without notice to him in a way that prejudiced his continuing accreditation and when we filed a dispute, because there’d been no consultation with anyone, they defended the process but the Council still has no documented process to show people who are new employees about how to renew their accreditation. These are examples only of multiple indignities, too many to list.

Knowing that his union representative was going on leave for a fortnight, on the Friday afternoon before the leave, HR phoned to say they were going to give Greg a “show cause” letter that afternoon. Despite our agitating for this to be delayed for a fortnight for him to have proper support, including sending a letter to the CEO Morven Cameron on the Saturday urging her to intervene, she refused to do so, allowing those who had already damaged him, to continue.

It was a disgraceful performance by the Council but as the Worker’s Compensation claim proceeded through the Personal Injury Commission, things didn’t go so well for them. In the end the Council chose not to press any of their evidence; agreed to reimburse Greg for eighteen months of sick/ long service leave; withdrew their defence that his injury was “wholly or predominantly caused by reasonable action from the employer” and the Commission awarded Greg the statutory maximum in weekly compensation payments from 14 October 2020 for up to five years as long as the injury continued.

But it’s not finished here -yet to be determined is how damaged (“diminished” as the legislation describes it) Greg is. If its significant, then the costs will be enormous.

CEO Cameron should not have ignored our request to intervene and none of these horrors would have rolled out. Council has a tendency to run witless and poorly conceived defences against employees injured at work, the most extreme example involved a collapse and settlement after twelve hearing days in the Federal Court, in a case run by an employee who had had a heart attack under unrelenting pressure from management. The Council has never disclosed what this cost the ratepayers of Lake Macquarie but it would have been hundreds and hundreds of thousands.                         .

Greg remains damaged by the behaviour of the Council, there is still no remorse, nor acknowledgement that things could have been done differently.

For every winner there is a loser, and LMCC, the CEO and those involved in this process are the losers.

On 25 August the NSW Building Commissioner David Chandler OAM, and Matt Press, Executive Director, Compliance Dispute Resolution spoke at a UDIA lunch. They reported on progress to date and the way ahead. After a well-publicised resignation, the Building Commissioner has renewed his employment and commitment to the cleaning up of the building industry. That's a good thing. We like him, he's a goer.

We had an informal meeting with the Commissioner and LGNSW CEO Scott Phillips months ago when the Building Commissioner told us they were about to commence an audit of a number of councils. We discussed this, and our view that if there are problems found, they will reflect inadequate resourcing or support, rather than anything like the sort of things detected for private certifiers. We talked about clause 9(i) of the State Award and the obligation on the employer to provide adequate staff and other resources, but also the reluctance of employees in the industry to call for help when under the pump.

In the presentation to the developers’ lunch, a slide headed "Certifier Program - Private vs Council" compared 11 certifiers and 9 councils. For councils there were 21 developments, 31 CCs and 26 OCs audited (in an audit still being conducted) and they had identified "85 Non-Compliances" to date. That's a lot, and in the traffic light system that they used to identify good, bad and indifferent, 16 developments identified as RED, two were identified as AMBER and only four were identified as GREEN.

Here is a link to the presentation and the relevant page containing this information is page 5.

No one really knew the implications of accreditation by Fair Trading and the BPB before it (as opposed to the significant legal evidence and cases available to justify the Civil Liability Allowance for engineers) and we have had a succession of State Awards where we have included a reference to this in the Leave Reserved clause until such time as we had some evidence of what that additional level of accountability meant. Clause 45 (vi) provides:

Leave is reserved for the parties to apply to vary the Award consistent with the principles of the Industrial Relations Commission of New South Wales in relation to the accreditation of employees by the Building Professionals Board.

We didn't know there were nine councils, and we don't know when the report will be released, and we will chase up the Building Commission to get this information. If you work at one of the nine councils and you have been having an audit, can you please let us know?

The number of non-compliances so far in OCs and CCs does not look encouraging.

The ability to take two days of sick leave each year as health and wellbeing leave was introduced as one of our claims in the State Award in 2017. At the time, we hoped it would be flexible in its application but most councils, if they did it at all, couldn’t get beyond the concept of attending medical appointments, for skin checks, or things like that. Traditional cautious local government thinking, trying to avoid establishing precedents.

A couple of councils, The Hills and Liverpool were able to be less rigid-minded and found great success when it was embraced by employees. Ideally this kind of leave should be an opportunity for people to take a break from work when they need it, and do something that reduces stress and makes them feel better.

We will be reviewing this in the Award negotiations later in the year but Central Coast has gone hard on establishing a limitless approach encouraging people to do things that make them feel well.

How about this as it was communicated to staff:

In light of that discussion, we want to encourage staff to use their Wellbeing Leave for not only volunteering at local charities and services but whatever it is that makes you feel well!

• Want to volunteer at your kid's sports carnival and feel like an amazing parent?  Wellbeing leave.
• Want to spend the day hiking and exploring the hidden gems across the Central Coast? Wellbeing leave.
• Want to read a book, shut out the world and expand your mind? Wellbeing leave.
• Want to spend the day mastering a new creative task? Wellbeing leave.
• Want to give back to your community? Wellbeing leave.
• Want to attend that drumming circle you’ve been desperate to try? Wellbeing leave.
• Want to simply prioritise your rest with activities that relax you? Wellbeing leave.

At last, after years of wanting to introduce something open-ended and sympathetic to individual needs, they’ve now done it. And great to see them embracing concept of reading a book, shutting the world out. What, a great way of unwinding. (Declaration of personal interest)

Please send us any examples of other good practices to use those two days a year.

Everyone knows Humpty Dumpty. A book by Lewis Carroll published in 1872 and a nursery rhyme, but rarely adopted by management in local government as a role model.

But at Mid Coast, the ████████, the GM and ████████ expert have done precisely that - embraced Humphrey’s famous philosophy about the use of language:

“When I use a word,” Humpty Dumpty said, in a rather a scornful tone, “it means just what I choose it to mean – neither more nor less.”

“The question is” said Alice, “whether you can make words mean so many different things.”

“The question is”, said Humpty Dumpty, “which is to be master - that’s all”.

The three unions are involved in a long-running dispute with Mid Coast, not so much over what words do mean, but what they don’t. Everyone knows that the award requires councils to have a salary system, clause 7 Salary Systems of the Award has twelve subclauses about how it should operate and critically subclause (xii) provides that if a Council introduces a new salary system and you’ve got better progression and pay on your existing salary system, you can choose to remain on that.

That’s why ████████ think that if they can successfully argue that something which provides progression based on skills and performance is something qualitatively different to a salary system, then employees won’t have the protection of clause 7 (xii). This is a novel argument, the requirement to have salary systems at each Council is a compulsory obligation in the industry since 1992, but no one has been genius enough to try to disarm clause 7(xii) by arguing that the salary system they want to introduce, isn’t a salary system at all.

These are the same people who, after the issue was set down and a timetable established for arbitration, thought they could blithely go ahead and ignore the “status quo,’ tradition which is always protected in disputes and grievances on occasions like this, and start implementing what they want to do anyway, even though it’s going to be determined in November.

The LGEA dispute went back to the IRC and the geniuses learned an important lesson about what constitutes the status quo - it’s always the arrangements that existed prior to what the employer wants to do, or change, that caused the dispute.

This will run like a miserable weeping sore until it’s arbitrated in November - unless the ████████ starts taking advice from people who know what they’re doing.

We invited ideas from members some months ago and received a good number of suggestions, but next week we will finalise our Log of Claims to be served on the employers and the other unions and negotiations will start later in the year.

If you thought you’d missed your opportunity to put in a brilliant and revolutionary suggestion, you haven’t, you’ve got until midday on Thursday 1 September. Be quick to

In the context of an independent review of the current OLG’s framework of how they manage complaints against councillor behaviour, there is clearly no time like the present to highlight the unacceptable secrecy that surrounds the way the OLG does business. That must change. Not enough transparency, too much cover-up.

This is an old story, a complaint against a miscreant councillor on Wagga Wagga Council, a serial offender, was investigated by OLG. Based upon that investigation, an order was made by the former CEO Tim Hurst which included an inaccuracy at paragraph 20, when it was said that the councillor had no previous complaints, nor anything else in the pipeline.

That’s factually incorrect. We provided evidence to Mr Hurst/OLG at the time and were ignored, made application under the GIPA Act to try to understand how after the investigation, that finding could be made, but were rebuffed because the GIPA Act excludes virtually everything OLG doesn’t want to disclose about their investigations. Critical to our case was our view that we didn’t want to see the investigation details, but whatever report had been prepared for the CEO and how that allowed him to make that fundamental error. The OLG has a discretion to provide information but on this occasion chose not to do so.

We lost it in the first instance in NCAT, opposed by a barrister for OLG and a barrister for the Information and Privacy Commissioner. It must be hard representing the IPC, as their barrister likes to call it (because it must be difficult to say you represent an “information” Commissioner when you are arguing against access to information) flouting the expectation of the Premier at the time that this new piece of legislation would be “best practice” in providing access to the public to government decision-making. The IPC barrister was able to establish in both the first case and in the appeal, that there can be no government authority more appropriately described as having an Orwellian title.

The appeal was heard by a panel of three tribunal members and a decision is reserved.

Over this period, the Health Surveyors’ Association/the Health and Building Surveyors’ Association published twenty tabloid newspapers and in the last years cheekily added under the masthead “Local Government’s Most Unruly Tabloid”.

Ancient stuff: councils attacking qualification; our smoke-free environment campaign in July 1986 launched by the Minister for the Environment in the Wran Labor Government, Bob Carr, that lead to smoke-free councils; what was stressing health and building surveyors in 1986; members on strike at Sydney, Parramatta and, in November 1992, nearly everywhere; privatisation; private certification; new Local Government Act and Minister sacked; doing it for nothing (a problem then, as now); Craig Knowles’ plan to end Council building control; an offer you can't refuse; No Dodgies in NSW, and more!

Here is a link to our Tabloid Past.