A lesson for all councils from Port Macquarie Hastings - you can’t make employees forfeit their rights to historic employment conditions under council policies

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Published: Tuesday, 15 June 2021 13:25

GMs can do the darndest things! Port Macquarie Hastings Council has just written to the unions saying that they have frozen an historic entitlement to payment for untaken sick leave. Not that they are contemplating doing it, and are interested in consulting to determine whether this historic practice is one where the Council has a unilateral right to change it, but that they have frozen it. From 11 May, apparently. Without telling the employees affected, nor the unions.

In 1993, John Fahey’s NSW Coalition Government decided that they didn’t like employers and unions agreeing to have arrangements for the payment of untaken sick leave. An odd thing to do, when you think about it, because a great deal of what the government had been saying before that was all about the rights of employers and employees to reach agreement on their employment conditions.

But the Government amended the Industrial Relations Act to prevent the payment of untaken sick leave being included in NSW Awards. This missed the target in local government where if employees have this as an entitlement, they invariably had it under some historic Council policy and as a condition of their employment.

There were some councils which thought that the change in legislation affected contractual entitlements not included in an award as well and tried to strip that entitlement from their own employees who may have had it under a policy or in some other ways condition of employment. Pretty stupid, really.

Bit by bit we were able to convince the councils to restore the entitlement but it was not until an industrial officer of the USU, Brian Harris, launched a prosecution of Murrurundi Shire for trying to remove a policy entitlement thinking because they had misunderstood the legislative change.

Beaten in the first argument before the Chief Industrial Magistrate, the Industrial Court on appeal overwhelmingly found for the union, and provided us all with an enduring principle about those things an employer can change, and those things they can’t.

So, when PMHC wrote to the unions on Friday 4 June saying “the current arrangements in Council’s Termination and Exit Procedure, allowing for the payment of sick leave for employees who commence with Council prior to 10 July 2008, is inconsistent with Section 27 of the NSW Industrial Relations Act”, here was another Council misunderstanding the legislation.

And in a brief discussion, it was clear that the Council had no idea at all how long this practice had existed, when it began and why, whether it was council resolutions creating a policy (which it turns out it was, with Port Macquarie Municipal Council doing it in the 1970s or so) or what. That would have been a good idea before they launched into it.

Again, like Bega Valley, they hadn’t sought advice from anyone who knew what they were doing, and are now doing so, we met to discuss it today, and next month we’ll let you know how this ends. Probably another thank you from a grateful GM for our involvement!

In the meantime, if you’d like to see a Judgement of the NSW Industrial Court that really smashes an employer, here is the link

Another variation of the Splinter Award for some dawdlers

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Published: Tuesday, 15 June 2021 13:24

The Local Government (COVID-19) Splinter (Interim) Award 2021`was made to operate from 8 April 2021 for 76 councils, varied to add another 18 from 28 April and then again on 10 June for some dawdlers - Burwood, the City of Sydney, the City of Parramatta, Sutherland and Upper Hunter.

Clearly, these councils didn’t want to rush into anything, even if it was as relatively simple as continuing protections available under the 2020 Splinter Award.

We’re in good company in our office in Five Dock

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Published: Thursday, 29 April 2021 13:34

After operation Dasha, the next local government-focused public investigation was our neighbour and former Minister in the Berejiklian Government, John Sidoti. Not quite as engrossing as activities at the former Canterbury Council, but he is pictured above in a graphic from the Sydney Morning Herald, with the property interests of his parents coloured orange and the ICAC is conducting a public enquiry on whether he misused his position as the local member to press for more development in the area surrounding his family’s property interests.

Coincidently, the properties will benefit from the proposed Five Dock Metro station - determined by the Berejiklian Government. Mr Sidoti and his family are canny investors, having already benefited from properties owned on the Rouse Hill rail line but this consideration doesn’t appear to be part of the ICAC brief.

He conceded he had “shared claims about the conduct of some councillors and Council staff that had no substance”; had made accusations described as “scurrilous” by Counsel Assisting about a Council planner; denied threatening Liberal Councillors; argued he was “indifferent” to the outcome of several Council meetings dealing with potential rezoning that would benefit his family’s property holdings; asserted the benefit to his family was a “’by-product’, but never the motivation for his advocacy for the changes” and It was all about responding to the local, unspecified, “shopkeepers”.

Commissioner Peter Hall QC asked if he had memory problems and reminded him a number of times that he was giving evidence under oath. Sidoti also acknowledged that he didn’t always read everything, including things he signed, and that sometimes he said and wrote things that he didn’t mean.

Still, he and his family are canny investors and if anyone needed someone to present a conference paper on planning issues facing established suburbs, he would be the man.

In the image above the Sidoti family property interests are coloured orange. They surround a white building sitting quietly on the corner minding its own business. That’s where we have and own our office and have been happily, for 20 years.

Great minds.

Where’s Tim?  

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Published: Thursday, 29 April 2021 13:34

In the last two issues we covered our disappointment at an order made by OLG CEO Tim Hurst that included one paragraph we believe to be demonstrably untrue. And that in turn allowed a wet lettuce leaf punishment of Councillor Funnell at Wagga Wagga for a Code of Conduct breach.

Hope does spring eternal and we are great believers in exploring opportunities to reach agreement, even with the most obstinate and difficult opponents. Most of our work is in the NSW Industrial Relations Commission where the primary responsibility of the Industrial Relations Act 1996 is conciliation - getting the parties to reach agreement.

We emailed OLG CEO Tim Hurst three times about the fallacy in paragraph 20 of his Order and each email was ignored. Then we filed our GIPA application which, with a speed that will astonish people who been waiting for years and years for OLG to get their fingers out and resolve multiple complaints, the request was rejected immediately. So quickly, that our letter containing a cheque for $30 for our application would not have even arrived in Nowra!

We filed an appeal in NCAT over OLG’s refusal to provide documents about Tim Hurst’s decision to end while we wonder where Tim is, it’s always worth one more attempt and if that fails, a comprehensive letter can then become part of our evidence in the appeal.

Here is our letter emailed to Tim Hurst on 19 April. Still no answer, he may be easier to find in a red and white striped top and beanie.

While there was no response from Tim, nor approach from his lawyers or anyone else to discuss him doing the right thing, a timetable has been agreed between our barrister and theirs, and has been duly ordered by the tribunal:

• the Respondent file and serve any written submissions and other documents on which it relies by 10 May 2021
• The Applicant file and serve any written submissions and other documents on which he relies by 24 May 2021
• The Respondent file and serve any written submissions and other material in reply by 31 May 2021
• The matter be listed for hearing on 9 June 2021 at 10am for half a day.

We are patiently waiting to see what OLG/Tim will have to say for themselves, and it may well be useful in the proceedings for us to take steps to have him subpoenaed to give evidence. David Shoebridge, who we know regularly and skilfully cross- examines Tim, would come to that.

We’ll keep you in the loop. There are so many outstanding complaints stuck in OLG, all protected by what the Office says to be there protections under GIPA, that something has to be done about proper transparency and governance.

(We apologise for the title of the proceedings, it’s not self-aggrandisement, but the procedures at NCAT don’t allow an organisation to file an appeal, only an individual.)

Covid 19 Splinter Award made for 2021 - and you can get vaccinated in worktime

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Published: Thursday, 29 April 2021 13:34

In March 2020, as it seemed likely that COVID-19 may get completely out of control, the unions and LGNSW were able to reach agreement on a 12 month Splinter Award providing specific entitlements for the pandemic and some degree of flexibility in dealing with it.

It was a comfort for employees even though employment remained secure. Unfortunately there are no statistics, nor any other data readily available, on whether employees were stood down under the terms of the Award. Certainly we don’t have any members who were.

What it did do was focus the attention of Councils on their mismanagement of leave and their failure to manage the accumulation of excessive annual leave and long service leave. It takes a pandemic to wake management up to the importance of properly managing the annual accumulation of annual and long service leave, and those provisions in the Award which encourage employees to take it.

In February 2021, while things were starting to look more under control in Australia, they were getting worse nearly everywhere else and they continue to get worse in second and third waves. The industry decided that it made sense to have another Splinter Award for 2021 when the 2020 Splinter Award expired on 6 April.

It was agreed that councils would need to “opt in” again to be covered by the Splinter Award 2021 but there were two changes made to the 2020 arrangements for 2021.

First, a new entitlement to leave, without loss of pay, to receive a Therapeutic Goods Administration approved vaccination (clause 12). Yes, you can get you vaccination during working hours.

Second, to be eligible for the Job Retention Allowance, employees must have an accrued annual leave balance of fewer than four weeks (clause 14.10)

The Award was made on 20 April 2021 by Commissioner Murphy to operate from 8 April and by consent of the parties with the initial “opt in” councils in Column A, and from 28 April will have further councils opting in in Column B.

Here is a link to what the Splinter Award will look like operating from 28 April and you can expect that there will be a series of updates as more councils opt in.

We make Parramatta rethink charging employees with leaseback cars for parking them in council car parks. Again.

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Published: Tuesday, 23 February 2021 13:15

Pictured above are Parramatta City CEO Brett Newman, social historian Karl Marx and Parramatta’s Chief People and Culture Officer, Bernadette Kavanagh - three unlikely people to be together at Highgate Cemetery, and to be relevant to the story.

Brett Newman is the latest CEO at Parramatta (the eighth in the last 20 years) and comes to Parramatta with a history in property and property development, most recently with Property NSW and Stockland. Karl Marx was a social historian and critic of the capitalist state and a significant historic figure. Bernadette Cavanagh came to Parramatta 12 months ago with a recent background in HR. Neither Brett nor Bernadette know anything about obligations under the Local Government State Award, and seeing the first award in 1992 was made more than 100 years after Marx’s death, the three of them have that in common.

But, in 1852 Marx wrote an essay titled The Eighteenth Brumiere of Louis Napoleon, in which he uttered his famous quote that historical entities and circumstances can happen twice - “the first as tragedy, then as farce”. While he was writing about Napoleon 1 and then his subsequent successor Louis Napoleon or Napoleon III, he was also anticipating our dealings with Parramatta.

In 2010 we had a dispute with the former Parramatta Council when it raised its intention to charge employees to park their leaseback cars in the Council carpark, meaning that employees would be charged for bringing the Council’s car to work. When local negotiations failed, we filed a dispute which came on before then Deputy President Grayson, who, grilled the Council’s lawyer about the unusual suggestion that employees should have to pay to park the Council’s car and, after relatively short proceedings, adjourned with the suggestion that the Council reconsider their position.

Which they did quickly, and decided it wasn’t such a good idea after all. Tragedy.

In December 2020, CEO Brett Newman emailed all staff telling them that he had decided to change policies and procedures which would require employees to pay to park in Council carparks and where, not having learned or even been aware of the lessons of history, didn’t exclude those with leaseback cars. Farce.

We know that sometimes it’s hard for people who come from outside local government to understand that there might be industrial instruments that oblige them to do certain things, or even that those instruments might require them if they want to make changes to car arrangements for leaseback cars, to do it in a consultative way through the consultative committee. Neither Brett nor Bernadette would have had any experience with these kinds of obligations, so they were lucky we are very forgiving.

We wrote to Brett and Bernadette the day Brett announced his intention, introducing ourselves and providing some of the history in case they thought they were doing something original. And they ignored us, sending a cursory response that didn’t exempt leaseback cars at 4:53pm on Wednesday 23 December when most of us had packed up and gone on leave. Then, on our return from leave, steadfastly refusing to deal with our repeated requests to clarify what happens to people with leaseback cars and ignoring increasingly urgent emails because we needed to protect our members against being charged for parking from 1 March.

This is probably not because they’re bad people (we don’t know them well enough to make that judgement yet) but because they really didn’t understand what the problem was, nor how farcical their behaviour was becoming.

So we filed a dispute again (mercifully Deputy President Grayson had retired because he would have loved it) but sure enough with assistance from LGNSW and the Council’s own more junior industrial staff who do know what they’re doing, we finally received the clarification we were looking for. We didn’t need a ludicrous two-page letter failing to deal with the issue that we rejected and sent back, all we needed was those four or five very, very short sentences.

And on that basis we discontinued the proceedings without the need to even attend once -  although I’m sure Commissioner Murphy would have enjoyed Marx’s analysis.

We’ll have more to do with Parramatta, you can feel it.

LGNSW disappoints on standard contracts

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Published: Tuesday, 23 February 2021 13:15

LGNSW is the authoritative policy development and Council lobby group and employers’ organisation but, when you get down to it, their members are the councillors. While we have good relationships with their industrial staff and others, sometimes it’s the councillors that get to call the shots on issues that really should be left to others.

LGNSW understands committing to a principal and their historic and unwavering opposition to rate-pegging is a perfect example. It’s a political position they’ve taken and prosecuted for almost as long as we’ve pursued our contempt for term contracts and the capacity for employers to sack people unfairly. We admire their tenacity and commitment.

This year, we’ll be pushing hard with our continuing campaign to remove the standard contract for levels below the GM. Piecemeal and minor changes to the standard contract that fall short of this are a disappointment, as is any refusal to prevent the termination of employees on the standard contract without mandatory mediation. Or an opportunity to test the fairness of termination in an accessible and cost-free tribunal.

LGNSW has surveyed their “members” and come back with a policy view that they will not support the removal of the standard contract. We are disappointed about that, and we look forward to some political leadership beyond the self-interest of councillors who like the idea of being able to get rid of GM’s and others without scrutiny and oversight.

Office of Local Government hacked by Russians

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Published: Tuesday, 23 February 2021 13:15

The heading could equally have been “Councillor behaving badly” but an Order made by Tim Hurst, Deputy Secretary, Local Government, Planning and Policy on 5 February 2021 has such a glaring and demonstrably untrue observation in paragraph 20, that there can be no better explanation than the OLG site having been hacked.

Wagga Wagga Councillor Paul Funnell is one of those rugged individuals who as a councillor believes that he better represents the community by ripping into Council staff when he thinks they need it. And in a public way. He does it regularly, he has been subject to a series of Code of Conduct complaints (including one from us last year) made by other councillors and Council staff. Most recently on 5 February 2021 by Tim Hurst, Deputy Secretary, Local Government, Planning and Policy who made orders against him under the Local Government Act. We know him as the bloke in charge of the Office of Local Government.

Cllr Funnell was ordered to apologise and cease engaging in this unsatisfactory conduct. Here is the Order.

He was directed, “Specifically, to cease engaging in conduct that causes, comprises or involves intimidation or verbal abuse and to cease engaging in conduct that is overbearing or threatening to Council staff” and that he “apologise to Council staff and councillors for inappropriate behaviour towards them on 19 November 2018”. Doesn’t he sound a charmer.

He was suspended as a Councillor from 19 February until 18 March 2021.

There have been so many complaints (and the complaints are done largely confidentially so it’s hard to be too authoritative) but earlier on 25 November 2019 he was censured for a breach of the Code by the Council for his treatment of a fellow councillor in November 2017.

And, on 12 October 2020, in response to multiple complaints, including one by depa, the Council formally censured him for a breach of the procedures of the Code and resolved to refer it to the Office of Local Government “for further action under the misconduct provisions of the Local Government Act 1993 (NSW).” OLG hasn’t acted on this yet, but they do have it.

But, when Tim Hurst issued the Order on 5 February at paragraph 20 he said this:

I have considered and taken into account that this conduct occurred in a single episode, and the absence of any prior offending or post-event conduct in the past two years and the lack of previous incidents of misconduct on the part of Clr Funnell.

And that, being a demonstrable error of fact, has many up in arms. Not just the Council, or those who have made complaints over the years, or depa as a complainant, but members of the public as well.

Tim has got it wrong. There has been both “prior offending” and “post-event conduct in the past two years”. In the Investigator’s response to us as a complainant last year the Investigator listed “the existence of previous proven breaches; the breaches forming part of an ongoing pattern of behaviour; and the reputational harm to Council arising from the breaches”.

Those dismayed have written to OLG, and so have we. We emailed first on 11 February under the heading “Chinese or Russian hackers have been on your site and changed clause 20”, intending that the subject at least catch the eye of a busy bureaucrat, then after hearing nothing back, sent a follow-up demonstrating both pre and post offending on 16 February and, when the silence continued, a further follow-up with another example on 22 February.

You can see our email persistence here.

Tim Hurst must act now or there can be no credibility for OLG in managing either the processes or the penalties arising from breaches of the Code of Conduct.

Fix it, Tim.

Building Commissioner issues stop-work orders

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Published: Tuesday, 23 February 2021 11:24

Well, it’s about time, but the NSW Building Commissioner has used the new powers of his office to issue prohibition orders to four developers stopping them getting occupation certificates until defects have been fixed. The prohibition orders prevent developers and builders from settling apartments until the defects are fixed.

A 10-storey apartment building at Forster with defects in waterproofing and external cladding has been served a prohibition order. This, no one will be surprised to hear, is a privately certified building.

Another privately certified 6-storey apartment building in Strathfield, with serious structural defects has been served a prohibition order, with Commissioner David Chandler quoted in the SMH on 18 February as saying the building was “one of the worst he had seen, leaving him no choice but to issue a stop-work order”.

A development of townhouses in Lindfield has been stopped to fix wall and bathroom tiles and waterproofing, and in a wonderful coincidence has been certified by Dix Gardner, our very favourite certifiers! That’s a shock, isn’t it.

Another privately certified apartment building in Lidcombe near Sydney Olympic Park has been stopped and ordered to fix waterproofing and tiling defects.

And developers of properties in Neutral Bay and Mascot have also been ordered to fix serious defects in mechanical car-stacking systems being installed. Both of these are privately certified as well. Bit of a pattern here, don’t you think?

These problems have all arisen from audits that have identified problems not detected by the relevant PCA. The SMH again quotes “he signalled more notices would be handed out in coming weeks”. Go hard, David.

Bloody hell, after all these years, what can we possibly say?

Told you so, told you so, told you so.

Welcome to 2021! Going to work? Going to the office?

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Published: Thursday, 21 January 2021 12:11

         The Scream by Edvard Munch 1893

Sotherby’s described one of the variations of The Scream by Edvard Munch as the defining image of existentialism, the definition of Expressionism as an art movement and the figure as “sexually ambiguous, visually amorphous and almost dehumanised”. Who hasn’t felt like that after a bad year in local government!

It’s the anguish it portrays that is so accessible and there will be anguish for many as they want to continue working from home this year but find councils unresponsive and unsympathetic - and as fearful, rigid-minded and unimaginative as they had been in the past about people working from home. But how can they get away with this? One of the few positives from 2020 was the debunking of the distrust of one-dimensional managers who believed people working from home weren’t productive.

We know that now to have been discredited, that the evidence across the state has been that productivity was high, commuting times and car emissions were massively reduced, the sky was clear and the planet a happier place. There was flexibility for families and family responsibilities. Win/win.

But there will be lots of anachronistic managers with policies and attitudes to working from home that won’t allow sufficient flexibility, or even the discretion to exercise it, and not game to try different ways of working.

As we all get vaccinated and the pandemic slows, or disappears, working remotely can be dealt with on its merits, not because it’s an essential public health step, but because it’s good for workers and good for productivity. How will councils deal with this - with open minds, accepting the evidence of 2020, or like local government Donald Trumps asserting “alternative” facts? There are facts and there are fallacies, there are no alternative facts. (Donald who?)

Whether it’s back to the office, or the home office, or a combination of both, the end of the school holidays is next week, those of us who took leave over December and January have to come to grips with getting back to work and it won’t be like normal holiday breaks where you can talk to workmates about where they went on holidays, or where you went, because we haven’t had our normal options of a carefree January.

The Sydney Morning Herald on 14 January quoted a psychologist warning employer lawyers that a lot of workers will still be burnt out because the break hasn’t been long enough to recuperate. And it’s been punctuated by outbreaks in the northern beaches in particular and other parts of greater Sydney that have kept us masked and weary. The other side of the Great Dividing Range and up and down the coast is almost a sanctuary in comparison.

Here are some suggestions for a better start to the year, with a few employment observations rolled in:

• Be positive, encourage yourself that “you can”. Research supports the idea that positive self-reinforcement leads to success and productivity, reduction in stress, high confidence and a happier life. Let the good times roll.

• Change things to make a difference. Where have you wasted your energies on things you can do differently? Are there better places to work, can you change the workplace to make it better, or are there other options?

• Start the day with an achievement- walk, swim, yoga or a stretch. Doing it early puts you in a positive state.

• Stick to your working hours and more sustainable and family-friendly work and don’t fall into the trap of working longer and longer. If there’s work to be done, maybe you need better resourcing? It’s the Council’s responsibility to get the job done, not your individual responsibility. As long as you’re doing your job effectively and in the hours they pay you for, they can’t ask for more.

• Schedule face-to face-time with colleagues when you get back, either online or in the office. If you’re a manager, acknowledge all the hard work and accomplishments from last year. If your manager doesn’t do this, get everyone to mention their failure at the next staff meeting!

• Arrange your next break. No one gets the post-holidays blues if they’ve got another holiday in February, or March...

• Make a checklist, and include on it even the easy things. That starts the workday with a positive reinforcement of having ticked things off already.

• Take your annual and long service leave as it falls due. That’s what it’s for.

And by the way, Sotherby’s described The Scream (as quoted above) in 2012 when an 1895 version was being auctioned and sold for US$120,000,000. Yes, that’s US$120 million, about AU$155 million. Central Coast will be regretting they didn’t have a couple of versions lying around they could sell.

         The Scream by Edvard Munch 1895

Good luck and high hopes for a better, safer, vaccinated and more satisfying 2021.