2022 depa awards for the Worst HR in Local Government

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How’s HR been this year?

It had its ups and downs, and this is our annual opportunity to skewer the worst of the mischievous, the hopeless, the dawdlers, tyrants, pretenders and miscreants. The biggest challenge in HR is to provide rewarding work, in an open, consultative and caring environment, where people feel secure. That makes our preoccupation this year trying to get the Office of Local Government and the Minister to provide some proper job security for senior staff. It has been tedious, slow and still continuing. It will be something for next year, and potentially a new government - if Labor can wrestle the high moral ground from Premier Perrottet on gambling.

The historic consensus to get rid of “no reason” sackings of senior staff is something that should have occurred already, OLG has analysed the submissions received from the “broader community” and of the 131 submissions, 85% supported the legislative changes necessary to provide proper protection for senior staff. It should be relatively easy, from that point shouldn’t it, but we are dealing with a largely immovable object.

Lake Macquarie got what they deserved when they were smashed by the Personal Injury Commission to resolve a workers compensation claim for a member of ours, bullied and treated poorly at every opportunity. A real karmic reward and a slap in the face for the façade of caring, responsible employment there. And in other karmic rewards, the GM who sacked our member unfairly at Narrabri, after a period on leave and an investigation by an Acting GM, resigned from the Council with an agreed exit. Yes, the bloke from Local Government Poseurs with the bloody apron, and still looking for a good job.

The pandemic continues, the strategy now is letting it rip, the cost of living is out of control, we work in an industry that because of rate pegging councils can argue that a CPI-based award increase would bankrupt most - reminding us of Paul Keating’s observation that working in the public sector provides “cosmic income” which, while it may be true, still doesn’t pay the bills.

Everything floods (at least we’re recognising climate change now), and keeps flooding, the dams are either empty or too full and that’s life. Hanrahan and Malcolm Fraser were clearly right.

While all that continues around us, there are four councils nominated for the prestigious title of the Worst HR in Local Government.

Central Coast

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It’s very conflicting to nominate Central Coast. It is no exaggeration to say that in terms of cooperation, professionalism and vision for the future, Central Coast, right from the beginning dealt with unprecedented daunting financial problems  - resulting in 350 jobs going, no money at all to pay anyone, but approached it in a completely cooperative way that meant the unions were on board all the time, consulted and briefed on the process, and understanding the dire nature of the Council’s finance.

In our August issue we applauded Central Coast going hard to establish best practice in health and wellbeing leave. When these provisions first came into the Award, most councils hid behind the rigidity of things like preventative medical appointments, and tried avoiding the exercise of discretion and setting precedents. The Hills and Liverpool broke free from those restrictions but progress in other councils has been slow.

So it was good to see Central Coast set up an entirely new approach advising every employee that the Council was open to a largely unrestricted and unspecified range of things they could do that would make them feel well. They gave examples like hiking, reading a book, mastering a creative task, joining a drumming circle, and anything that the individual employee would present as making them feel well.

We don’t give awards for good HR, but if we did, the HR people at Central Coast would get one for everything over the last four years. Except …

It’s hard to deliver cooperative and respectful HR processes if you find yourself with a bloke as GM who is an unchallenged expert with numbers and the money, and specialises in councils which are financially in deep trouble. David Farmer prides himself on being one-dimensional, not just on the money, but the embarrassingly old-fashioned and hostile concept that there is no better way of motivating staff than having them fearful of losing their job, pretty much all the time.

We’d engaged with him over his intention to flow the senior staff standard contract into the third level of management at a time when everyone else was thinking that the process was rotten, a corruption risk, and precarious employment for people who really needed to be comfortable giving advice without fear or favour.

He did say he would wear his Golden Turd with pride, (thinking it made sense to taunt us) but there are worse - and I hope I don’t offend you David, by saying that!

Notwithstanding all the good HR work by others, this was a last ditch attempt to take advantage of the hostile employment arrangements while still available, to make more people vulnerable in their jobs. The Central Coast gets a nomination.

Mid Coast

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(left to hard right) GM Adrian Panuccio HR/IR Adrian Pryke

Our first ever nomination of a Council where the GM is a member which, if it does nothing else, will reassure those people who think we get conflicted covering people who they work for and to whom they report. Clearly we can handle that potential conflict-of-interest.

It’s a truism that anyone who remains a member of ours when they get a job of director, or GM, usually carries with them the legacy of having been a member, and read and listened to the sorts of things that depa does, our core values and to remain a member, generally have confidence in our advice.

The former GM of Mid Coast Glenn Handford was a member of ours who reflected this truism. He had been the GM of Great Lakes and thought it made more financial sense to spend money on employees rather than the mechanisms councils can establish to manage their progression. He liked the concept of annual pay progression by not over-complicating the steps employees and HR would need to go through for progression. So, he set up a salary system with thirteen steps of 1.25%, which are available every year for employees who meet expectations. There was also a possibility for multiple steps for high performers.

It was embraced by the employees and the unions, was a good and affordable salary system that didn’t require a squad of people working out competencies to allow steps, or sophisticated and complex annual reviews. The money went to the employees.

This became the salary system after the merger of Great Lakes, Greater Taree and Gloucester merged, and once the GM had brought to fruition his vision for the staff to all operate out of one administrative building, on the outskirts of Taree, he resigned to do something off. In the second half of 2018, Adrian Panuccio, formerly from North Sydney Council, filled the position. All went well for a while until it was clear Adrian, despite his years of membership and having sought advice from depa over that time, thought it made sense to take advice from someone else.

Adrian Pryke was the Integrated Planning and Reporting Officer when another Adrian, Panuccio, arrived and then became the Council’s Industrial Relations Advisor. It seems Pryke had never worked in industrial relations, coming from a career working as an “Advisor” to a few ministers in the NSW Government, then as an Industry Relations Advisor for UrbanGrowth, the NSW Government’s developer.

Pryke’s LinkedIn profile identifies his role as the President of the Liberal Club at Sydney University, but doesn’t include a relatively unsavoury experience working as a politician’s staffer in the Southern Highlands, and being sprung stacking branches: something reported in the Southern Highland News as “it looks like branch stacking has been the undoing of the hard right neophyte Liberal Adrian Pryke…”

Being “hard right”, doesn’t mean he automatically gives bad advice, but when you think hard right Liberal in the concept of industrial relations, we think of people like Peter Reith, and his dogs and balaclavas in the wharf dispute, not at all the way local government likes to do business.

Pryke was appointed Industrial Relations Advisor at Mid Coast, despite no experience in the area, in 2019.

In late 2020 the Council decided to do something about Glenn Handford’s benign salary system. Originally presented as looking for a way of better of rewarding the highflyers, it was really the annual 1.25% which the Council wanted to remove because of the mounting costs, normally described as “incremental creep”, in arrangements like this.

This year they let the dogs out, proposing a new way of progressing in the salary system. It was going to be much, much more difficult but the comfort was the Award provides that if an employee has better progression or salary range in an existing salary system, then they can choose to remain on that system. That allowed a Council to introduce a worse system but most employees would elect to remain on the old system as incremental creepers.

The Council had a different view and a unique interpretation of what had remained a consensus for decades, uniformly across the industry, and had them arguing if they left the steps, making those steps more difficult, or impossible, didn’t allow the employees to remain where they were with their current entitlements.

Then it hit the fan. The LGEA filed a dispute (!) all the unions were involved and in every conciliation, the Council got worse and worse, spoiling for a fight. Commissioner Webster spent a full day at Taree trying to develop a compromise and at the end of the day a proposal was agreed to be put by the unions to their members. Without the protections of existing rights, depa didn’t bother voting because it was so unsatisfactory, but the other two unions had joint meetings and 483 employees voted against the proposal in what was a unanimous vote at a number of meetings.

Then the Council continued to go ahead with it, despite the dispute, and even though the practice is that the “status quo” should remain - meaning that you don’t roll it out until the dispute is resolved. It’s hard not to note the irony of a former President of the Liberal Club at Sydney University not respecting the concept of status quo. Again, nearly a day of conciliation and the Council begrudgingly stopped rolling it out.

The Council wanted to arbitrate rather than reach agreement, the Commission issued a certificate of failed conciliation and a timetable was set to arbitrate. For this to happen, employees prepared statements of evidence about the impact of these changes on their expectation of moving through the salary system and were able to demonstrate losses in the order of $20,000 to $40,000 for some over the life of their career at the Council.

But conciliation continued with discussions recommended by the Commission. Having advice available from LGNSW and a barrister, an agreement was reached between the parties for a settlement that would provide the existing arrangement overlaid with possibilities of a more predictable access to double steps for people doing well and clearly accepting at clause 5 “the basis of the ratings will not include reference to the Local Government Capability Framework”.  

Now we were getting somewhere, depa members accepted it without quibbling (accepting that it was better to get moving on the trial and see how it went without worrying), but when joint meetings of the USU and LGEA members raised a number of questions “for clarification”, one of those being what will you use for ratings if you’re not using the dreaded capability framework, the Council seized on the opportunity that request provided and reneged on the agreement. Clearly they didn’t want to reach agreement with the unions, and having done so, broke the agreement.

Back before Commissioner Webster to have the Commission reinforce the importance of reaching agreement, and then honouring the agreement. That’s the basis upon which the Industrial Relations Commission operates, nothing precedes, a date is set in six weeks’ time with the Council to review its position and put proposals to the unions, which they didn’t do and then another full day of conciliation and Commissioner Webster hammers out a settlement to let the trial continue with the Capability Framework referenced, but the expectation progression would remain the same.

It was an uneasy truce after a day that became fairly aggressive and unpleasant.

Bloody hell, that’s what happens when the GM as a depa member decides it makes sense to take advice from someone else - even when LGNSW would have to have been telling them that the unions were right.

This was a dispute that had it all. A Council committed to arbitrating everything, at every opportunity, rather than reach agreement, and when they did reach agreement, they reneged on it and did everything they could to not agree to anything else.

This is an appalling way to manage HR anywhere but in a Council of 1100 employees, already with an enhanced proposal rejected unanimously by meetings of 480 union members, there was always going to be a collapse in morale because of the Council pursuing an aggressive approach when all we wanted to do was to get on with the trial to see how things went, based on the original agreement, and then review things in June next year. This them and us mentality when all we were trying to do was to build the trial until the end of June next year to see how things would work.

No other Council has been quite this aggressive, bloody-minded and contemptuous of reaching agreement with the unions representing their staff. Mid Coast has to be nominated.

Sutherland Shire

This will be Sutherland’s third successive nomination (winners in 2020) reflecting a sad consistency in the way they manage HR. Clearly not enough flushing out and getting in new blood at critical levels.

Two years later the CEO hasn’t recovered from her failure to properly manage the abusive language used by the Mayor to a compliance member of ours over breaches in the Mayor’s three cafes. While there is now an MoU between Sutherland and Georges River providing for each to do the other’s compliance and enforcement for businesses or properties owned by councillors, there is still not any recognition or apology from the Mayor, or the CEO, for failing to obtain one. All the CEO needed to do was what the previous CEO had done when the same boofhead abused another member of compliance staff - resolved it within 24-hours with an apology and a handshake from the boofhead.

The main problem last year was their desire to renegotiate the historic Core Enterprise Agreement but wanting lawyers to do it for them and the unions to sign a Good Faith Bargaining Principles agreement requiring a level of good behaviour that we know the CEO doesn’t enforce on her own councillors. Hypocrisy is such an unattractive quality.

Into 2022 and while the unions remained offended and refused to sign this document because it was unprecedented in the industry and if there were issues about breakdown in negotiation, access to the IRC can be almost instantaneous. But at the February meeting of the Consultative Committee, in  a report attributed to a Amanda Edwards, Manager People & Culture, Ms Edwards explained why it hadn’t proceeded, and the minutes of the following meeting adopted this as a true and accurate record:

Council reiterated that this was necessary as DEPA have submitted a letter which was unprofessional, disrespectful and insofar as bullying and harassment against the people who work for Council and therefore in this context it is entirely fair that the good faith bargaining agreement is put to Unions to ensure consistent expectations are set across all parties.

There had been no concern about any of our correspondence brought to our attention, there was no invitation for me to attend to respond and our new delegate attended his first meeting the following month to see this cowardly attack upon the Secretary of his own union in the minutes of the last meeting. Our members at Sutherland were supportive and well-aware of why we wouldn’t sign this bogus agreement and of anything we write to the Council and their Golden Turd nominations.

Our new delegate wondered what was going on, naturally enough, we pursued it in correspondence to the CEO and in a series of follow-ups to the CEO the Council was unable to provide “a letter” that came remotely close to the allegation of being “unprofessional, disrespectful and insofar as bullying and harassment. (sic)”

The Council can’t get away with this, they need either to put up, or shut up.

Clearly no such letter exists but the Council in a series of emails argued that it generally referred to all of our communication, even though the minutes recorded it as referring to “a letter”. If the Council conceded there wasn’t “a letter”, the minutes of the meeting should change and Ms Edwards should apologise. When asked to furnish examples of unacceptable communication they couldn’t, and when subsequently provided with the last fifteen communications between us which were are all remarkably civil and pleasant, notwithstanding the circumstances, still haven’t responded.

Who knows what Ms Edwards said, but the minutes record, as a true and accurate record, that she said those things, the Council can’t demonstrate that what she said was true, so it’s untrue. They get a reminder every now and again but the allegation is wrong. It’s a lie. It's a real pants on fire moment.

But we know what really gets up their nose, it’s that they manage HR in a way that keeps getting them nominated. If the nominations are unreasonable, or we’ve got it wrong, or we’ve misunderstood, we will remedy any inaccuracy in a way they refuse to do themselves with the February CC minutes. The simple advice to Sutherland is if you don’t want to be nominated for the Worst HR in Local Government, don’t do it so badly.

There are too many loose, erratic and subjective processes and we had to fix an issue for a member offered a market allowance to start, and then two and a half years later the Council argued that the market allowance was really a car allowance! We were able to make them back pay the member for the ten quarters - yes, two and a half years - and he retained his market allowance. Good call to get advice about it.

Another request to reviewing higher grade pay resulted in a review going back more than twelve months and reimbursing people who’d been cheated out of entitlements by someone taking advice from HR.

But still, surely they could do something right?

The USU had filed a dispute about the salary system and it appeared that the previous Director of Planning had done nothing to provide progression and in a series of compulsory conferences in the IRC, it was agreed that employees who believed they were “stuck” and not progressing, could make applications for a review. The Commission recommended the unions provide details to the Council.

We asked members and while some of them were concerned about individual vulnerability in a hostile environment and needed reassuring that it was a collective approach, consistent with recommendations from the Commission, fifteen were prepared to participate.

On 13 July depa provided an eight page letter to the CEO, identifying fifteen members who believed they were stuck, including extracts from their emails to depa about why this shouldn’t be the case.

Ms Edwards immediately responded, noted that we provided commentary and details on fifteen employees and said:

Our process for progressing such matters is to follow the grievance procedures in Council’s Core Enterprise Agreement.

This procedure, requiring individuals to put their hand up about something that was unfair, in a climate where that could prejudice them explains why no one had complained in the past. And this stupid and witless proposal was seen by the employers as an opportunity to pick them off one by one.

But it also created a potentially embarrassing farce - we were there as part of an industrial dispute, this procedure was part of the dispute and the proposal to individualise what was intended to be collective, created a potential circular arrangement where if they did lodge an individual grievance and were unhappy, the union could file another dispute - or potentially in our case fifteen additional disputes! A clumsy novice’s approach, aimed more at making it an individual in a collective strategy, but Ms Edwards is not a novice.

Luckily the relatively new Director of Planning Andrew Carfield stepped in with a call to depa and an agreement that he would set up meetings that depa would also attend, with those members, and their manager, to work through the reasons they provided for their concern about being stuck, and find a remedy.

And we did. The Director’s office allocated slots with the three relevant managers involved so that each person, with their manager, their Director, and the union there in support, did all get a remedy. Either progression or a process that would see things happening in the workplace to allow progression in the next occasion. And a very helpful and pleasant person from HR acting as Manager People and Culture Establishment there in support and encouragement.

This became a model for the USU to follow for their members. Sadly for our members at Sutherland Andrew was headhunted and is now the CEO of Camden. Our members’ loss at Sutherland, everyone’s gain at Camden. Congratulations Andrew.

But there’s more, the November meeting of the CC had been provided new policies and protocols, but not in a marked-up form, or with any way of being able to understand what changes the Council was proposing. We wrote supporting the provision of a marked up copy, as the only way it should ever be done, but at the November meeting the union reps found Ms Edwards to be hostile to doing so, and argued it vigorously. It became a meeting our relatively new delegate described as not very pleasant, but fortunately the Director of Corporate Services pulled her into line and agreed that would happen. And it did.

Finally, at the last meeting of the Consultative Committee it was revealed that HR had been managing what is known as the Sick Leave Safety Net from the Core EA, by adding a range of value and other judgements in granting access to the Safety Net not provided for in the EA, and potentially breaching that historic agreement. This breach is probably prosecutable, and there certainly will be retrospective claims arising. To be continued…

No wonder things go wrong in that place. Sutherland gets another nomination.

Waverley Council

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Waverley Council this year set a record for breaching their legal obligations under the Local Government State Award. For 30 months, two and a half years, they prevented the Consultative Committee from operating. They did this on the basis that there was a pandemic, and they couldn’t be face-to-face meetings, even though the Council itself kept operating over Teams.

The Award has required the establishment of consultative committees at each Council since 1992, thirty years, and this has never happened before. We didn’t have a representative for the Consultative Committee at the time because he had pulled the pin after being made to take excess leave by the Council, so we didn’t know what was happening but six months or so ago the USU raised the issue with the Executive Manager Human Resources, Safety & Wellbeing People, Kerrie Pryke, but nothing happened.  

Members of the Committee raised it locally because there are issues like a new salary system and job evaluation that would ordinarily be dealt with by the consultative committee and it looked like the Council was trying to get away with something. Locals stopped doing this when they felt it wasn’t good for their future wellbeing. Nice, EMHR Safety and Wellbeing, really?

depa filed a dispute with the IRC, but only after pursuing the Council to get their fingers out immediately and convene the Committee, to be ignored and fobbed off with a response from EMHRS&W that it was someone else’s responsibility but not disclosing who or what that was.

In the end the Council agreed to a recommendation by Commissioner Muir that the Committee be resuscitated and to meet next as it ordinarily would on the next second Tuesday of the month.

The dispute demonstrated something we all know, there is a high correlation between councils caught doing the wrong thing and complaining about unions being intimidatory. Thirty months breaching the Award, they should have extracted as many fingers as they needed to respond to the unions’ requests immediately. Sprung. No wonder they felt intimidated, poor little loves.

It was refreshing to have the relatively new GM (Emily Scott, pictured above) apologise to members at the first meeting of the Consultative Committee, but no one has put their hand up, acknowledged it was a mistake, and apologised. We know who was responsible, they would have been better simply acknowledging it.

The unions identified eleven policies and protocols that had been varied, amended or changed in some way, including proposed changes in the job evaluation system, that should have been through the Consultative Committee. Looks like someone there wanted to avoid consulting. As the GM wasn’t the GM for more than a majority of the thirty months, it was kind and courageous of her.

In an email to depa from the GM on 13 October it was emphasised “all future correspondence... be sent directly to me and Records Management via the following email addresses”. Suits me, just like the old 1919 Act, all correspondence to the Town Clerk, and no need to risk poor little loves in HR feeling intimidated.

A month or so later and clearly on Emily’s watch, the USU negotiated a one-off payment for certain employees in the salary system. This was apparently a commitment by the Council acknowledging “some of the poor consultation about the proposed new Salary Framework review”. We found out only when members were told by local representatives of the USU, that there would be a one-off payment for everyone in the salary system except for the managers. We wrote to the GM on 18 November asking for an explanation emphasising while we had no problem about the payment, just the decision to exclude the Managers, who are also on the same salary system and who would have been equally affected by the poor consultation.

At this stage we start to get inconsistent messaging. Ms Pryke responded on 21 November, attaching an “All Staff Communication” that was distributed that day saying:

‘in acknowledging the delay and lack of consistent messaging throughout this project, we have negotiated with the United Services Union for a proposed one-off payment to all staff, below Manager level.”

But in the letter attached to depa they say they write to advise of:

“consultation about to take place regarding an interim measure quote and rather than just look at an interim solution for our wages and our lowest paid employees, Council has broadened the interim measure to include all employees below Manager level.”

So, what was it, the agreement with the USU was up to the level of Managers as stated to all staff, but that it was the Council which had “broadened the interim measure to include all employees below Manager level? If that’s the case, they can exercise a discretion to provide it.

And ironically they say that the compensation is for “a lack of consistent messaging”. They'd better be careful, or the unions will want an additional interim payment based on all this.

The Council has put a number of arguments against the Managers getting the one-off payment: that the agreement with the USU prevents it but the USU have said it doesn’t; the managers have had access to progression and arrangements anyway, but so also have some of those receiving the payment; that the Managers have had access to progression and other entitlements, but don’t provide evidence of what that, or they may be; that some grades have been reviewed in recent years, but don’t provide evidence of that; and in the most recent correspondence, that the rates “remain competitive in the market” even though we know that the previous GM did a market survey, the results of which we understand identify their professional rates as being under the market, but to redress the problem would have cost $2 million, and nothing happened to the recommendations. We’ve asked for the report, we don’t have it.

This will probably be the last dispute we file in 2022, or the first in 2023. Waverley gets nominated.

And the winner is…

Heads on muppet web

Mid Coast wins the prestigious award for The Worst HR in Local Government, aka the Golden Turd. Their initiatives to change the salary system to reduce current entitlements to progression and higher rates of pay, their assertion people can’t remain on their current salary system if they get worse entitlements and pay on the proposed system, and the astonishing 483 - nil vote of disaffected employees is a real vote of no-confidence in management.

Their draft documents for how people will progress include their vision of the organisation “where we work collaboratively and are trusted(yes, really) and while the unions hadn’t had any confirmation from the Council they had agreed to the settlement brawled out on the last occasion in the Commission, the GM in an email to all staff said “thank you for your patience as we implement these changes”. Employees at Mid Coast need patience for much more than that.

This is embarrassing year for MidCoast with decisions affecting more employees than the narky sub- professional decision-making at Sutherland and the inconsistent and erratic communication at Waverley.

But reneging on an agreement, negotiated with the Adrians in their own barrister’s chambers, in an industry where reneging on an agreement properly made is so rare, no one can remember the last time it happened. This is an industry where the Award was made by consent in 1991 and varied by consent ever since, and regarding the unions as enemies, is contrary to this thirty years of cooperative history. 

Congratulations, to the Adrians.

Councillor Misconduct Review released

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The good news is that the Councillor Misconduct Review has now been released. Dated October 2022, it was released on 13 December with a Media Release from the Minister, Wendy Tuckerman.

The Report “proposes the biggest changes to local government integrity measures in more than 30 years” and includes “49 recommendations aimed at improving the integrity, transparency and accountability of the state’s more than 1,200 councillors”.

The Minister notes “it’s clear from recent ICAC public enquiries and the number of Council interventions that changes are needed to build community trust in local government.

The recommendations include harsher penalties for councillor misconduct and ensures the framework for dealing with misconduct is more independent, effective and efficient.”

The media release contains links to the report and a Consultation Guide inviting feedback up until 3 February.

We’ve already had our say, depa was the only union that made a submission, reflecting the reality our members are those most vulnerable to councillor antagonism and hostility and we are one of the fourteen organisations or people who were interviewed.

We will be making a submission next year.

That’s it for us

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We’ve all had enough, hanging out for a break to come back fresh, strong and revitalised for 2023.

Our Office Manager has resigned, and luckily for us, Margaret Bayliss, who retired two years ago after working for us for seven years and for the Institute of Building Surveyors for 15 years, is back on a very part-time basis to cover the end of this year and the beginning of 2023 while we recruit a new Office Manager. Thank you, Margaret.

The office will be closing at midday on Thursday 22 December, Margaret will be here for a day or two a week and I’ll be back on Tuesday 24 January.

From the Office and the Committee of Management, we wish you all a well-deserved break, full of love and laughter with your families, good things to eat and drink, lots of relaxation, some exercise, a book or two or more if you can, listen to some music, and get ready for 2023.

‘Tis but a scratch - mixed fortunes at the High Court, and later …

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Unions NSW and Others v State of New South Wales was heard by the Full Court of the High Court on 16 and 17 November. As briefly advised in the last issue of depaNews, the primary argument concerned “acting in concert” provisions in the Electoral Funding Act 2018. The issue of the cap for by-elections was a secondary matter.

The Act regulates the expenditure and lobbying processes in elections but for our purposes it put a limit on third-party campaigners (unions, environmental organisations, carbon polluters like the coal lobby, religious organisations - anyone other than political parties) of $500,000 for state elections and $20,000 for by-elections. The problem was that the $500,000 figure was also a maximum if unions banded together, or acted in concert, and campaigned - like the Nurses, the Teachers, the public transport unions and the Public Service Association, on the public sector wage cap, or staffing, for example.

UnionsNSW had been to the High Court twice before, winning both cases. This was third case to deal with the limit on acting in concert and whether this was a valid law under the Constitution because it denied the implied freedom to fairly participate in the argument of ideas. Successful lobbying resulted in the Upper House rescinding the provisions capping acting in concert. This was then supported by the Lower House, with the Government angrily caving in because they couldn’t stop it - “under protest”, describing it as “shameful” and having “destroyed the validity of the legislation”.

Unions NSW, conscious of the State election scheduled for March next year, pursued the Government for seven months, asking for their undertaking that they would not reintroduce the arrangement as a regulation - something this Government has done in other areas - and they sounded angry and desperate enough to do so here.

But the Government refused (no wonder the rail dispute took so long to resolve) requiring a third case, about a piece of legislation rescinded but capable of resurrection. The High Court is historically reluctant to hear hypothetical arguments despite the attraction of resolving this issue once and for all and, as Justin Gleeson SC on behalf of UnionsNSW put it, also doing it in the interest of “judicial economy” - both a fabulous expression and compelling argument. This was turgidly opposed by the Government.

The Court adjourned at the lunch break for the seven Judges to determine whether the argument would proceed in the afternoon. When we resumed, the Chief Justice announced that “a majority” was opposed to continuing. Reasons for this will be published.

On the second argument, candidates in a by-election can spend $250,000 each but third-party campaigners are capped at $20,000 and that amount also applies if acting in concert. The unions argued this was unconstitutional because it inhibits debate about political ideas. The most recent by-election was Upper Hunter, there were seventeen candidates who collectively could spend $4.25 million and twelve third-party campaigners capped at $20,000 - both each and collectively. There is no possibility of running a successful campaign on that kind of money. The Court adjourned to provide a judgement later.  

To complicate matters further, there had been a Parliamentary Joint Standing Committee on Electoral Matters considering the issue of caps on third-party campaigners in by-elections with a report expected in May this year, but not yet delivered.

The week after the High Court action, the report was released: finding that the current cap was “too low for TPCs to run effective campaigns and properly participate in the electoral process during by-elections”, that was “causing TPCs to choose not to participate in elections” and it “supports increasing the cap to $198,750 which would allow TPCs adequate resourcing to run campaigns in by-elections, while preserving the voices of candidates”.

That’s a tenfold increase in the current cap and led to a frenzy of communication between our lawyers and theirs, the Government agreed to jointly approach the Court to provide the Report, conceded the argument, and agreed to pay the unions’ costs.

It’s been quite a year: UnionsNSW and others successfully lobbying the Upper House to have the legislation rescinded; the Government doing so reluctantly and angrily; then refusing to cooperate by providing an undertaking they wouldn’t reintroduce the rescinded legislation by regulation; forcing an application to the High Court; a grossly overdue Report from the Joint Parliamentary Committee, and whammo, we win.

The cost of the case has been pro rata between the unions on the number of members, so our contribution has been almost infinitesimal compared to the bigger unions, but we all contributed equally per head.

Just how much of the costs will be met remains to be seen, but this is not a bad way to end the year.

What’s happening?

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There are two big deal issues for us being considered and managed by the Office of Local Government - and/or the Minister.

First, what’s happening about the senior staff initiatives? We are almost three weeks after the deadline for submissions on the senior staff initiatives, something that has been a critical Issue for us for decades. We received a summary at the last meeting of the Employment Reference Group (convened by OLG with LGNSW and the unions) on 9 November which was not publishable, but we should be able to see a summary of the final submissions, to get a feel for the level of opposition in the industry from the broader consultation and be updated about what follows next and a timeframe for that to happen.

It’s clear that this issue will not be resolved this year, but some commitment to pursuing it would be welcomed by the unions and the employers’ organisation.

And second, what’s happening about how OLG deals with complaints against councillor behaviour?  

Minister Hancock announced it towards the end of 2021 and on 26 November 2021 Gary Kellar PSM wrote that the Minister had initiated an “independent review of the framework for dealing with councillor misconduct” and he had been appointed to carry out the review. He said this was all about how “complaints about Councillor misconduct are managed with the aim of identifying possible areas for improvement,”  inviting submissions “identifying areas for improvement, together with suggestions for the practical application of those improvements”. A coincidence for us, we were at the time in NCAT about precisely that issue, with OLG refusing us access to documents on an investigation into complaints made against a councillor at Wagga Wagga

A Consultation Paper was issued in November 2021, four months to provide submissions, we made ours on 28 March and covered it in depaNews,  and nothing has been heard since. We understood it had started and there were high expectations. We know it has concluded but we’ve not heard anything at all about the report that would have been issued to the Minister (and ordinarily would be distributed within the industry), what recommendations may have been made, what was going to happen to provide all those improvements the Minister at the time anticipated.

Last week we asked, and were told updates would be provided on both these burning issues to the Employment Reference Group, when we next meet on 13 December. This is a confidential forum but we hope to be able to distribute the information.

How has HR been this year?

HR College

Our final issue for the year will be our special Worst HR in Local Government issue, or the Golden Turd, as it is more commonly known. It’s eagerly awaited by councils wanting to see how bad others are, so they know where they should go to poach mistreated staff, and by the guilty councils hoping they’ve escaped nomination.

But if we have fewer nominations this year, we have one in particular that has set a new low standard - ignorant of process, impatient to reduce progression in the salary system, bulldozing, intolerant of dissent, unable to reach agreement, and when they do, reneging on it with no understanding or respect that agreements are the cornerstone of well-managed industrial relations. And there’s more.

The HR awards will be published in the week beginning Monday 19 December. Nominations remain open.

Randwick GM’s bold move to protect senior staff

Waiting snip 18

Therese Manns 1

It’s now more than twelve months since the LGNSW Board resolved to create consensus with the unions about protecting senior staff and bringing them under the Award. It took a long time for the Office of Local Government to move, to develop a Discussion Paper, to put it out for consultation in the industry for “broader” consultation - people who may well want to continue the ability to sack senior staff without reason. We are all being very, very patient in a process that may not end in time to allow legislative change before the Government gets itself into election mode next year.

But Randwick Council’s GM, Therese Manns, thought it unnecessary to wait, and acted both immediately and decisively to support her senior staff. In an unprecedented move during this consultation period, she put two recommendations to the Council: that it prepare a submission supporting the historic consensus on providing fair employment for those currently called senior staff, and at the same time “convert Director level positions at Randwick City Council from senior staff contract to Local Government (State) Award”.

The Local Government Act 1993 requires councils to determine senior staff positions. The only position that must be senior staff and capable of being sacked without reason is the GM, and it is open to councils to not impose this unfair employment arrangement on anyone else. Smaller councils have been doing this for decades (although mostly because the second level doesn't meet the minimum remuneration levels required), Penrith Council has done this fairly recently but at last, to emphasise the importance of this historic consensus, the Randwick GM has fixed it locally. Inspirational.

Here is an extract from the minutes of the 18 October 2022 Council meeting:

18 October minutesFinal

If we had another seventy or eighty general managers prepared to do this, it wouldn’t matter how long it took Sagittarius A to deal with it. We urge all those other GMs to do it as well. Now that the ICAC has acknowledged the corruption risk with this form of employment, what’s holding them back?

With the consultation period ending on 15 November the optimists are hoping the OLG and the Government do the right thing on this and deliver the legislative changes this year. 

NSW unions challenge NSW Government in the High Court – again

High Court TR

In 2018 depa joined in an action which the High Court describes as Unions NSW 2 v NSW Government. It was a challenge to the legality of restrictions imposed in New South Wales legislation putting a cap on campaigning expenditure by third parties and, in particular, imposing that same cap when a number of third parties get together - or as the legislation describes it, “act in concert”. It was also the second case Unions NSW had conducted on electoral funding, the first was successful, and the second was an absolute triumph, humiliating the NSW Government with all seven judges agreeing it was unlawful.

You can check our coverage in three different issues of depaNews here:

NSW unions challenge NSW Government in the High Court

High Court to hear union challenge to electoral funding laws next week

NSW Government doesn't understand why they lost the High Court case

Section 35 of the Electoral Funding Act 2018 is the problem but successful lobbying of the NSW Upper House saw the opposition and crossbench unite to rescind that section to ensure that the acting in concert offence was repealed. The Government agreed to the Bill, and that should have been the end of it, but the Government refused requests from Unions NSW to give an undertaking that they would not reimpose that provision in a way that would prevent joint campaigns in the future.

So, notwithstanding all that, the case has been set down for hearing in the High Court on Wednesday 16 and Thursday 17 November. The High Court must be wondering how many times they have to reject the approach of the Government before they accept there is an implied freedom in the Constitution for third parties to participate in the electoral process.

We file a dispute with Waverley for failing to have a Consultative Committee operating for 30 months

But Why480

When the Local Government State Award was made to operate from 1992, one of the significant achievements was the requirement that all councils have a Consultative Committee that would, for the first time, acknowledge the importance of employees having a say in things that affect their lives at work. There was some antagonism to this but it was a Federal Government initiative at a time the government thought cooperation in the workplace was essential. It was a big step, challenging the historic view of managerial prerogative trumping everything, it prescribed how a Committee should operate, who should sit on it, what it should do.

Now local government accepts it is an integral part of a modern workplace.

But while Waverley Council thought Council meetings could be held remotely during the pandemic, for reasons not properly explained, they thought that the Consultative Committee couldn’t. So they didn’t, unchallenged for 30 months. The last meeting was on 12 February 2020.

The unions, first separately, and then together, started raising it with People and Culture, the people who would normally be responsible for the management of the Consultative Committee. Those approaches were ignored by P&C, trying to fob us off with talk of the need to review the Constitution, it wasn’t their responsibility, the dog had eaten their homework, and even if it wasn’t their responsibility, they were very happy to stonewall.

Thirty months is a long time to not have a Consultative Committee meeting when the rest of the industry quite happily moved to remote meetings. They’ve still not explained how the Council could operate this way, but not the Consultative Committee, so we filed a dispute.

As a result of proceedings in the IRC on 27 September, the Council accepted they would start having the meetings, consistent with the requirement in the Constitution to meet on a certain day every month and the first meeting was held on 12 October. The first opportunity to meet consistent with the Constitution.

It was a dispute over something that no other Council had ever done, without anyone ever properly explaining how it happened, or whose decision it was. No one has put their hand up to own it.

The dispute also demonstrated the truism that there is a high correlation between councils caught doing the wrong thing and complaining about unions being intimidatory. Thirty months breaching the Award, they should have extracted as many fingers as they needed to respond to the unions requests immediately. Sprung. No wonder they felt intimidated, poor little loves.

It was refreshing to have the relatively new GM apologise to members of the Consultative Committee at the first meeting, but no one has put their hand up and said it was me, and it was a mistake. That fell to the GM, taking one for the team. Both kind and courageous of her.

The unions had identified eleven policies and protocols that had been varied, amended or changed in some way, including proposed changes in the job evaluation system, that should have ordinarily been through the Consultative Committee. A sad development for a Council that regards itself as progressive and consultative.

The NSW Building Commissioner is interested in the big picture with local government certifiers

DavidChandler2

We met with the NSW Building Commissioner David Chandler on 9 September, concerned about slide 5 in a presentation he had made to a Developers’ Lunch on 25 August. We think he’s done a great job generally, unbelievable productivity, the statistics on the number of apartments inspected and the benefits that provides to consumers are astonishing and we love the idea that when he’s finished in his current role, he takes over the Office of Local Government for a while. He would only need six months.

Slide 5 showed a comparison of “Non-compliances” of eleven private Certifiers with certification done at nine councils from an audit of 21 Developments, 31CCs and 26 OCs and showing “85 Non Compliances”.

The Building Commissioner is interested in the quality of the certifying rather than the quality of the certifiers, he understands issues of under-resourcing and those problems confronted every day by the industry. For that reason, he didn’t want to identify the nine councils but we can rest assured that it’s the process targeted here, rather than an individual certifier or certifiers. Fair enough, we look forward to the recommendations from the Report, yet to be published.

More Articles ...

  1. 2023 Award discussions have begun
  2. LG Professionals invite members for a little bit of consensual S&M
  3. Minister for LG releases the much-awaited “Discussion paper - Senior staff employment”
  4. Uh oh, the Building Commissioner is concluding the investigation into certifiers at nine councils …
  5. Humpty Dumpty inspires management at Mid Coast
  6. Not too late if you’ve got any good ideas about the next award
  7. depa’s appeal over OLG denying access to information heard in NCAT on 19 August
  8. Interested in the past? What were the issues depa dealt with between December 1984 and September 1997?
  9. Central Coast goes hard to establish best practice in health and wellbeing leave
  10. Greg wins, Lake Macquarie loses, but don’t tell Liz
  11. Speaking of corruptibility, how are OLG and the Minister moving to implement the industry's consensus on “no reason” sackings? Part 2
  12. What a refreshing change. A crook confesses at ICAC
  13. Speaking of corruptibility, how are OLG and the Minister moving to implement the industry’s consensus on ”no reason” sackings?
  14. depa appeals NCAT decision supporting unnecessary and unacceptable OLG confidentiality
  15. Fair Work Commission increases the minimum wage by 5.2%
  16. The last pay increase in the 2020 Award is from the first pay period after 1 July
  17. NCAT smashes depa and the OLG can keep their secrets
  18. If the senior staff contract is a corruption risk, unimaginative and a shortcut instead of proper performance management, who’d be mad enough to put more people on it?
  19. This has to be the final nail in the coffin for the standard contract
  20. Ponderously slow, unexaminable, discouraging and disadvantaging of complainants, the OLG process must change
  21. New COVID Splinter Award to be made to operate from 8 April
  22. depa has a new Committee of Management, and we welcome Bryce
  23. 2021 Golden Turd winner resigns
  24. Barbarians rise to keep unfair sackings
  25. depa v Narrabri settled
  26. Enough about everyone else, what about us? We’re having an election.
  27. That’s it for us
  28. 2021 depa awards for the Worst HR in Local Government
  29. Time is running out for dodgy developers - and dodgy builders, certifiers, and engineers too
  30. “The glorification of greed has left Sydney with a vast backlog of misery”
  31. Most Councils moving towards mandatory vaccination
  32. Yes, permanent employment for senior staff is great news, but when?
  33. Office of Local Government announces review of how to deal with councillor misconduct
  34. Bruce Dunlop is a new member of our Committee of Management
  35. No increase in membership fees in 2022
  36. December is the last month of the year, and that can only mean one thing
  37. New South Wales elects new Pope
  38. Meanwhile, 600 years later...
  39. Councils moving towards mandatory vaccination
  40. depa supports mandatory vaccination
  41. Let’s talk about work and let’s talk about local government
  42. Three quick questions for the undecided
  43. Building Commissioner targets the most dodgy private certifiers
  44. A mixed bag
  45. OLG Model Social Media Policy - consultation draft
  46. NSW Building Commissioner putting the frighteners on developers, and their certifiers
  47. How are the prestigious depa HR awards looking for 2021?
  48. Next issue
  49. Where’s Tim?  
  50. NCAT hears Ian Robertson v OLG
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