It’s hard to keep the Federal Court a secret

Details

Published: Friday, 14 June 2024 10:44

On 5 June in a prosecution of Active Super by ASIC, the Federal Court found the fund had been guilty of “greenwashing” and had misled and deceived members and others about what they did own, and not own, and how that reflected their responsible investment commitment.

The Financial Review headed their article “Ethical” fund’s excuse for gambling, coal stakes unbelievable: judge, and the Herald went with $14b super fund misled investors by greenwashing, court finds. Both followed up with further articles about New South Wales parliamentarians sitting on the Board as representatives of LGNSW and being paid significant fees, and the Herald editorialised against the practice. This is now national news of significant interest. Let’s hope bad luck doesn’t go in threes.

depa will remain a Shareholder of LGS Pty Ltd (aka Active Super) until it merges with a Victorian fund next year. I was a foundation director until 2013, and our last director, Sam Byrne, resigned from the board in a reduction of union representatives in July 2019. We had no influence on the operation of the Fund as a shareholder and with the Director, and there is a limit to how many isolating 7-1 votes anyone should have to put up with.

The time we did have a Director, the fund had systems in place to ensure that if they said they didn’t own a certain kind of investment, then they didn’t. Somehow, those protections have failed.

As a Shareholder we have limited rights and our pleas, after ASIC announced the prosecutions, that the fund should put something on their website acknowledging what was happening were rejected, allegedly “on legal advice”. There is no advice on their website about the successful prosecutions, the judgement has been made and when the case resumes it will be down to how much of ASIC’s costs are to be paid by Active Super, and the extent of the penalty.

This is a big deal for us. Most importantly, we had no influence on the fund, no input, nor anyone implicit in decisions that created this in 2021. We are all in the clear.

I’m reluctant to say anything else, but members have asked, and this is public knowledge. I reckon I know why this has happened, maybe in July.

And we’ve discovered local government’s longest and best kept secret

Details

Published: Friday, 14 June 2024 10:43

In February we put a timer on Robbo’s Pearls on our homepage to record how long the Labor Government had been in power in NSW and done nothing about senior staff. At that stage Premier Chris Minns and Local Government Minister Ron Hoenig had been in office for around 315 days and for almost all that time the senior staff changes, supported by LGNSW and the local government unions since a resolution of the LGNSW board on 15 October 2021, had languished in the office of the Minister for Local Government. We asked the question "what have you blokes been doing?", when it had been SFA.

The lack of action by the Minister for Local Government seems all the more inexplicable when you consider his speech in the second reading of the legislation on 15 May:

“I have been personally advocating against that law since about 1993. It might have taken me over 30 years but I am really proud to support the bill today.”

Well, who’d have thought! All those years we were banging our heads against the wall, looking for political support, all those things we’ve regretted over that time, but apparently lurking in the shadows was the Hon Ron, it’s just that none of us knew. Ron, why didn’t you call?

The Minister for Local government also said this:

“it will provide all Council employees, other than the general manager - and I send a warning that that position is next - with the security of being covered by the award or another industrial instrument.” Woohoo!

The Hon Ron has warned everyone, depa would support that, so would the other unions, but does the Minister’s warning give sufficient of a nudge to LGNSW that they may also support it? Or at the very least supporting 52 weeks as a termination payment to dissuade councils from unfairly sacking GM’s ? Or providing them with access to the IRC?

Go the Hon Ron, just don’t keep it a secret for 30 years.

Je ne regrette rien

Details

Published: Friday, 14 June 2024 10:41

Lucky Edith Piaf, not regretting anything. Who wouldn’t like to live their life like that. Here are some of our regrets over the last 33 years:

the first historic consensus opposing the introduction of term contracts for senior staff was in 1991, and included the employers’ organisations as well as the predecessor of Local Government Professionals (sic), the Institute of Municipal Management. We regret the employer’s organisation abandoning that position, and the history of antagonism to getting rid of the concept of senior staff by LG Professionals (sic).

We regret that LGNSW, up until they responded to the recommendations in Operation Dasha, participating in the unfair dismissal of more senior staff and particularly general managers than anyone else, and probably collectively, more than everyone else.

The role of the Cabinet Office in 1998 rolling the recommendation made by the Local Government Minister at the time Ernie Page, in the five year review of the Local Government Act, that term contracts should be removed because of anticipated flowback into the State SES - which was nonsense. And the decision of the Cabinet that fell for it.

The role of the Office of Local Government, and their SES staff who had been provided with permanent tenure by the Government Sector Employment Act 2013 (something that in the local government we knew nothing about) not flowing a similar provision for senior staff in local government when the SES had been a model for that arrangement in 1993.

OLG’s historic defence of their standard contract and assertion in a variety of investigations, including Operation Dasha, supporting “the “termination without reasons clause... in the event that there was a breakdown in the relationship between the Councillors and the general manager”

And in taunting local government that if they ever delivered a consensus view between the employers and the unions, they would deliver that through the Minister, and then failing to do so.

ICAC in 2002 after investigating Rockdale Council and making findings about corrupt councillor behaviour made observations about “the importance of protections for local government employees involved in the development process”, and then did nothing about it.

ICAC in July 2003, considering correspondence from depa identifying “corruptibility issues that arise from term contracts” after both Rockdale and Tweed, and doing nothing about it, and in a meeting with us in July that year having some pious wanker reject our concerns which he asserted “to some extent that’s the obligation of public service”.

The ICAC 2016 report in Operation Farra at Mid-Western Council observed “the ‘no reason’ provisions in the standard contract, however, could create an uncertain employment environment for a general manager. The Commission’s concern is that such uncertainty could be used to improperly influence the action of a general manager” and, then did nothing about it.

And in Operation Dasha ignoring the submission depa had made about problems with planning and the employment relationships of senior staff, with recommendations for change, that included repealing section 340. We should have been called to give evidence.

We were not able to reach agreement between the unions and LGNSW on transitional arrangements for senior staff similar to the employment protections in section 354D of the Local Government Act continuing senior staff on “the same terms and conditions that applied to the staff member immediately before the transfer day.” This had been the unions’ collective position for a number of months until abandoned in a meeting depa could not attend on 19 March, when an agreement was made by everyone else for what is in the current arrangements.

And obviously I regret spending an hour and a half at the dentist that day and being unable to argue against that happening, and forgetting the first rule of politics - “be there”.

How it could happen that this legislation was carried without dissent, with the support of the Liberal/Coalition Opposition and all Independents, who for most of those years opposed doing anything about this, but who nevertheless subsequently found an interest in doing something about unfair employment practices for senior staff and thought they should trumpet as if it were a revelation, and their idea.

Nevertheless, we record our appreciation and acknowledgement of three people and their critical role in moving LGNSW towards this position in 2021 - President Linda Scott, CEO Scott Phillips and Director Workforce and Legal, Adam Dansie, notwithstanding his awful advice given to Campbelltown to unfairly legitimise disadvantage against a group of employees, predominantly our members.

The LGEA has participated in support over this time, and the USU which, while they were late to the party, they brought a connection to Government, without which this would not have happened. And the new CEO of OLG, doing his best to get over the abject failures and connivance of the past.

What happens next?

Details

Published: Friday, 14 June 2024 10:21

Here is a Circular dated 12 June from the Office of Local Government, created over a number of weeks with the unions and LGNSW to end “Senior Staff” employment forever. This delivers on the consensus position in the industry established on 15 October 2021 after the LGNSW board unanimously resolved to support the removal of senior staff (apart from the GM) from the Local Government Act.

There is now a transitional period of three months until 1 September to allow current senior staff to transition to the State Award or relevant EA. During this time contracts which expire can be renewed if the employee prefers. There will be no new contracts after 1 September and at all times there will be access to the IRC if councils are difficult.

The OLG circular contains significant detail but the most important principle underlying transition to the Award or EA is the first dot point under the heading Key points:

“When transitioning from employment under a senior staff contract to employment under an award or Enterprise agreement, employers and employees must act reasonably. Employees should not suffer a net loss as a result of the transition.”

Love it, employees should not suffer a net loss.

For depa, this brings to a close 33 years contesting these contracts since they were raised in discussions in 1991 in the Exposure Draft Local Government Bill. The 29 March 2021 issue of depaNews, under the heading “ICAC dogs it on Dasha” will be all the history you need.

Sophie to the rescue!

Details

Published: Saturday, 25 May 2024 19:12

In February we put a timer on Robbo’s Pearls to record how long the Labor Government had been in power in NSW. At that stage, Premier Chris Minns and Local Government Minister Ron Hoenig had been in power for around 315 days and for almost all that time the senior staff changes, supported by LGNSW and the local government unions, had languished in the office of the Minister for Local Government. We asked the question "what have you blokes been doing?", when it had been SFA.

The Premier was able to find the file in Minister Hoenig’s office and pass it on to Sophie Cotsis, Minister for Industrial Relations and Minister for Work Health and Safety, and then it all happened. A draft Bill was prepared by the Department of Industrial Relations and the Minister's office, consulted with the three unions and LGNSW, and a final agreement was reached.

On Wednesday 8 May the Local Government Amendment (Employment Arrangements) Bill 2024 was introduced into the Legislative Assembly by Minister Cotsis, she delivered the second reading speech that day, and the pic above shows a triumphant Minister, and three equally triumphant local government union secretaries, after the second reading speech. This is a big deal.

Thank you, Sophie.

The Second reading was adjourned and was passed when the debate resumed on Wednesday 15 May.

There was no opposition to the bill and its effect of protecting senior staff by providing fair working conditions with the removal of "no reason termination", and moving senior staff to protection under the Award or relevant Enterprise Agreement. None. Everyone spoke glowingly of the fairness of it, despite many of them having been in government while this remained the situation over the last 30 years! FFS!

It was introduced into the Legislative Council on 15 May by the Treasurer Daniel Mookhey, passed the following day and returned to the Legislative Assembly.

It awaits the "assent" of the Governor of New South Wales, a process that is more correctly known as the "Royal Assent", just to remind us how much of our governance is still stuck in the 18^th century.

After "assent", it will be law. You can start celebrating now.

101 Damnations at Campbelltown

Details

Published: Monday, 29 April 2024 12:22

Campbelltown’s lack of respect for long-serving staff and chronic under resourcing won them our prestigious award for the worst HR in local government in 2016. The same GM, but no nominations subsequently, but how is this for an ambitious attempt to be nominated in 2024?

Campbelltown City employs over 1100 staff across 380 different jobs, with one salary system. There is an Enterprise Agreement for Managers who are on different arrangements. Last month, the Council proposed increasing all rates in the salary system by 2% to set a new base rate after struggling to attract and retain staff generally. But not everyone was proposed to get the 2%, if you were on a market forces allowance already, they proposed that you fund your own 2% increase from your market allowance. That’s not, as they say, robbing Peter to pay Paul, it’s robbing Peter, to pay Peter.

75 of more than 1100 employees were going to be victimized - unfairly and cruelly. The managers (and executive managers) were going to get a $6,500 increase in their car allowance, bringing it to $18,000. Nice.

HR’s documents (People and Performance, at Campbelltown no less!) misrepresented the proposal, using expressions like “unfair advantage” to those already on a market rate, and cooking the books to present figures to minimise the disadvantage to employees.

When we did the calculations properly, and demonstrated the inaccuracy of their calculations, the Executive Manager People and Performance responded “we will have to agree to disagree on the figures”. Really? It’s not a matter of opinion, calculations are either right or they’re wrong. Continuing to rely upon those discredited figures was disingenuous at best, dishonest at worst. And yes, because you are wondering, that EM got the $6,500 ...

Up until this stage the Council had refused to acknowledge the historic arrangements and contractual conditions of employment - but had never raised the possibility that they would create two salary systems. This was based on advice from LGNSW as a way of getting away with avoiding the breaches of an existing and historic custom and practice - a bit like giving advice to a thief planning a theft, that if you are going to run away from the police, run fast. This set up the opportunity to either opt in, or opt out, to give it an appearance of legitimacy. But it’s not legitimate.

What the Council was trying to avoid was a decision on 16 February 2005 by GM Paul Tosi to establish a “market allowance” as a response to a memo from the Director Planning and Environment recommending paying a market allowance to “nominated Planning, Health Surveyor and Building Surveyor positions”. This arrangement has continued for almost 20 years and has been a critical part of offers of employment. It’s a condition of employment for our members and others. It has no relationship to the salary system.

The allowance was initially for employees who would be members of ours, and the memorandum provided three significant conditions governing the payments: there would be an annual review to determine if “they are still necessary to meet the above objective”, it was a fixed amount and not subject to award increases, and the margin “will be reviewed as any position becomes vacant”.

The condition of employment for those who have it meant that it could be lost or reduced if they weren’t “necessary” but in the intervening almost 20 years, they have been necessary and while the Council trying to advertise positions without the allowance, it was invariably provided.

At no time since the allowance was established has the Council done anything to review the allowances, they obviously worked and that was sufficient of a review. These three critical provisions allow the Council to vary the allowance, but the Council has not sought to change the allowance, even though the 2% proposal intends to reduce it, consistent with the conditions of employment of those employees who have reference to the memorandum in their letters of offer.

This is a significant procedural flaw.

We have 20 members affected, and there are other job classifications receiving the allowance. They receive the allowance, sometimes up to $20,000 (significantly more than the allowance originally established) at the discretion of the GM to make sure they can get people, and keep them. The EM P&P (unaware of the inherent irony and hypocrisy) responded to our suggestion that everyone should get the 2% and they shouldn’t pay it to new staff, that the Council would not forfeit their right to pay market premiums if they wanted to! 

The Consultative Committee endorsed the proposal, despite the three salary representatives from depa, the LGEA and the USU all voting against it. It was endorsed with documents containing the original inaccurate calculations, where we had specifically requested of the GM that this not happen.

Our members were disappointed and hostile - alarmed and offended at suggestions they have been “advantaged” unfairly, that receiving the 2% and retaining their full market premium is an “unfair advantage”, that it would be unfair on top of an “already larger package”, and “double dipping”.

On 26 March a meeting of members resolved to continue to pursue the 2%, and in the meantime to stop working unpaid hours, exercise their right to disconnect, not working if they weren’t well and to take up an invitation from the GM to individually have their allowances reviewed.

The process has been duplicitous, disadvantaging good and valuable employees, promoted and justified with figures that are demonstrably untrue. Shameful, really.

When the Council, in the form of the EM P&P, eventually responded to our advice that members would be working differently, marked the letter Private and Confidential.  In all my (virtually) 40 years with depa, no employer has ever attempted to make communication between the union and the employer on issues like this private and confidential.

That includes Campbelltown, who even with a succession of Town Clerks/General Managers, and a whole range of HR people, never attempted to restrain us from distributing the employer’s responses to us from our members. We’ll give them the benefit of the doubt and assume it was some poor young inexperienced person in HR trying to do the right thing prior to the school holidays.

The Council’s misunderstanding of concepts of what is private and confidential, and what is communication that can be readily distributed will be part one of the issues when this inevitably ends up in the IRC.

Too much villainy. Imagine how horrifying kids would have found it if Disney had made101 Dalmatians, not just with one Cruella, but two …

We still provide free insurance for “journey claims”, and we’ve just improved it

Details

Published: Monday, 29 April 2024 12:22

Bob Carr’s New South Wales Labor government more than a decade ago decided to remove “journey claims” from Workers’  Compensation protection. That meant if you had an accident getting to or from work, you were no longer covered by the Council’s Workers’ Compensation policies. Thanks, Comrade.

Most unions quickly filled the void and depa has provided free journey claim insurance for members since 2012.

We’ve just upgraded our policy and increased the maximum payment from $2,000 per week to $2,500 per week. $2,500 a week is 85% of $2,941 as the weekly salary.

For anyone on a salary higher than $2,941 gross per week, the weekly benefit will be capped at $3,500. $3,500 is 85% of $4,117, as the weekly salary.

The payments will begin seven consecutive days after the injury. Most other policies have a higher excess.

And it’s free as part of your membership fee. How do we do it!

Trainees in chains

Details

Published: Monday, 29 April 2024 11:01

Councils pay course fees, provide transport or pay reasonable travelling to attend course requirements, appropriate flexible work and study arrangements to complete major assignments and paid leave to attend course requirements off-site, to trainees.

Trainees are paid under the T scale in the Award, based on their age and whether they have the HSC, and progress subject to satisfactorily completing their studies.

Historically, councils all had professional trainees but, over time have thought it smart or not financially viable, to stop training people who might leave at the end of their training. About as smart as decisions by governments to shut down TAFE.

We hear reports of councils signing up trainees with an obligation to repay course fees if they leave within a certain period after qualifying. These councils, reactionary, slow thinking and not getting it that happy employees stay with an employer, think the way to keep these freshly qualified and enthusiastic employees is to prevent them leaving. Having well-paid, meaningful and satisfying work at the end of a successful traineeship is the key.

How does it not make sense, even to the obtuse that not only are they qualified, they have all the local knowledge obtained over that time, and they’re already there when national shortages in those professions mean councils struggle to attract new staff. Reward them, and keep them.  

The award is clear and explicit and does not provide for a Council to recoup costs. Fail a semester, and you need to repay the fee, but that’s as far as it goes.

If you are a trainee, or if you are our delegate at the Council, we need to know if your Council is making trainees sign something to require them to repay their course fees if they leave.

Is your Council doing this? Please let us know if they are and send us a copy of the document they are being asked to sign.

We don’t really know how many councils are doing this. Murray River was sprung doing it last year and Richmond Valley committing wage theft with a trainee earned them a Golden Turd in 2018.

There are even councils out there calling trainees cadets, to try to undermine award entitlements. They’re called cadets, so they’re not entitled to the provisions of the award, but they are still trainees.

We’d like to fix this, but we need to know where this is happening.

NSW Electoral Commission declares depa’s 2024 elections, and we have one new Committee Member

Details

Published: Monday, 29 April 2024 10:53

Welcome Lorena!

The NSW Electoral Commission has declared candidates for the positions of President, Vice President and four Committee Members elected. We had the right number of candidates for those positions and didn’t require an election.

We have one new Committee Member, Lorena Blacklock, pictured above. Lorena is Coordinator Land-Use Planning and Spatial Services, and our delegate at Queanbeyan-Palerang, and was previously our delegate at Hilltops. She has been a very effective delegate at both those councils and will be a refreshing and exciting new Member. Here is her policy statement:

I am woman hear me roar!

Now I have your attention, I'll leave the roaring to Helen Reddy and use my inside voice to tell you about me.

I have 30 years of wisdom gained as a town planner in roles from Trainee to Manager and currently Coordinator Land-Use Planning and Spatial Services.  My work has taken me from Goulburn, Gosford, Queanbeyan, Hilltops to Queanbeyan-Palerang Councils, with short sojourns into state and federal government, just to confirm why local government is for me.

Here, I thoroughly enjoy the opportunity to be a depa delegate at Queanbeyan-Palerang, identifying issues and solutions, while also giving me the chance to get my "legislation/legal nerd" hat on, to go through our Award conditions.

A big part of my role as a town planner when looking at development and land-use change, is giving a voice to the environment, the future generations and the voiceless. I bring that skill and purpose in nominating for the Committee of Management. I would love the opportunity to give back to depa and contribute to the Committee by speaking up for those who need support and adding volume and weight for those quiet voices.

I'm here, listening.

President, Steven Cook, Vice President Vince Galletto and Committee members, Bruce Dunlop (Camden), Jamie Loader (Central Coast) and Bryce Weedon (Hilltops) are all re-elected for another two-year term.

Policy statements for all candidates will be on our website from 1 May when the new Committee takes office.

The Secretary has a four-year term from the 2022 election.

He said what?

Details

Published: Monday, 12 February 2024 13:10

The December “Worst HR in Local Government” issue gets around. Even to councillors at MidCoast. Our reporting on the alarming collapse in the morale of staff at Mid Coast since 2018, and a report to the Consultative Committee last year identifying 300 resignations in 12 months, attracted the attention of one councillor. Yes, only one councillor out of 11, and considering that section 8 The Council’s Charter of the Local Government Act provides amongst other things that the Council be “a responsible employer,” that seems an indictment of the rest. What do they think constitutes being a responsible employer?

Councillor Peter Epov’s concerns were reported in the Daily Telegraph Newslocal last week after he had placed questions on notice to the GM to answer at the Council meeting on 7 February. According to the news report he was concerned because he understood “it costs approximately $20,000 to replace just one staff member so when you get hundreds resigning in one year this equates to many millions of dollars in lost productivity. And this converts to a failure to deliver services” he said.

He asked “can the GM confirm that depa, for the second year in succession, conferred the Golden Turd Award” to Mid Coast Council for ‘the worst HR in local government’”. And whether the claims were correct that “MidCoast Council has had 300 resignations in the past 12 months, as stated in the last report to the Consultative Committee” and “Almost 500 of Council’s USU (United Services Union) members meeting and rejected the proposal to the salary system proposed by MCC with not one person supporting them?”

Those three reasonable questions were clear and unequivocal and could all be answered with a yes or no. Because they were true, they should have been answered with yes.  But while the questions might be reasonable, the GM’s response wasn’t. He said the matter was confidential due to “personnel matters concerning particular individuals (other than councillors)”, even though the questions sought whether the allegations were factual, and made no reference to any individual or any personal matters.

What does “personnel matters concerning particular individuals (other than councillors)” actually mean? A reluctance to answer the question, or to fob off the questioner, or some unwritten rule to protect the guilty?

There needs to be some proper explanation of how a Council can lose more than 30% of its staff in a 12 month period, so we will ask for one, and clarify in our next issue.