Supreme Court reserves its decision on Narrabri’s jurisdictional argument

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Published: Wednesday, 27 November 2019 15:31

As you know, we filed a section 106 Unfair Contract application in the Supreme Court after the sacking of a senior staff member of ours by Narrabri GM, and President of Local Government Professionals, Stewart Todd, and that Narrabri’s first argument was that our application be quashed because the Supreme Court didn’t have the jurisdiction to hear it.

This would be an argument despite a history of regular section 106 applications from local government in the Industrial Relations Commission, and after the Court function was transferred to the Supreme Court, in the Supreme Court. And significantly regular applications, and regular settlements.

On 15 November, Associate Judge Harrison heard the Council’s argument and our response. A decision is reserved but not likely before the end of the year.

Plenty of time for bloodshed under the standard contract in the meantime.

Public Accountability Committee’s first report makes 17 recommendations

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Published: Wednesday, 27 November 2019 15:31

The Legislative Council Public Accountability Committee Regulation of building standards, building quality and building disputes handed down its first report on 13 November. There are 17 recommendations including addressing the issue of flammable cladding, strengthening the Building Commission as an independent statutory body “with broad powers and sufficient resourcing and funding to oversee and regulate the building and construction industry”, and more.

Here is a link.

Next month

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Published: Wednesday, 27 November 2019 15:31

depa’s highly respected and authoritative HR awards will be announced next month.

Local Government Super appoints a new Chief Executive Officer

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Published: Wednesday, 27 November 2019 13:48

LGS has announced the appointment of a new Chief Executive Officer, Phil Stockwell. Phil is a highly regarded person from financial services with whom I had the pleasure of sitting on the Regnan board a decade or more ago. Welcome Phil.

In the last issue we expressed our surprise at a report in the Sydney Morning Herald, ostensibly to announce the appointment of an independent Chair of LGS, that said “the $12 billion fund amended its constitution in June to make board changes following a probe into its governance by the Australian Prudential Regulation Authority (APRA)”

A probe? This was a surprise, given the careful language we needed to use trying to explain to members why, despite our historic opposition to the concept of “independent” directors, LGS had decided to do it. Apparently it was the Herald’s word, it wasn’t provided in the media release by LGS.

In June, unknown to us, LGS in an earlier media release announced they were going to reduce the size of the board and appoint an “independent” Chair and two “independent” directors “to more effectively meet APRA’s requirements around superannuation governance”. The media release acknowledges “APRA’s recent guidance and expectations”.

Well, that was more than I could tell you. And I couldn’t tell you that I had carefully drafted advice to members seeking the approval of the  █████████ ██████████ ██████████ █████████ ██████ before ██ ██████ ████ ███ ███████ ██ █████ ███ ███ ████ ████████████ ████ ██████ ███ █████ ██████ ███ █████ ██ ██ ████████ █████ ████ ███████ ████ █████ ██ ██ ████, ████ ██ ████ ███ ██████, ███████ ██ ███████ █████ █████ █ ███ ███████. 

Or anything else about the regulator, whether they have done anything, or haven’t done anything, ███████ ██ ███ ██████ ██████████ ██ ███████ ██ ██ ███ ████ ███, one dare not speak its name.

Local Government Super appoints a new Chief Executive Officer (2)

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Published: Wednesday, 27 November 2019 13:48

LGS has announced the appointment of a new Chief Executive Officer, Phil Stockwell. Phil is a highly regarded person from financial services with whom I had the pleasure of sitting on the Regnan board a decade or more ago. Welcome Phil.

In the last issue we expressed our surprise at a report in the Sydney Morning Herald, ostensibly to announce the appointment of an independent Chair of LGS, that said “the $12 billion fund amended its constitution in June to make board changes following a probe into its governance by the Australian Prudential Regulation Authority (APRA)”

A probe? This was a surprise, given the careful language we needed to use trying to explain to members why, despite our historic opposition to the concept of “independent” directors, LGS had decided to do it. Apparently it was the Herald’s word, it wasn’t provided in the media release by LGS.

In June, unknown to us, LGS in an earlier media release announced they were going to reduce the size of the board and appoint an “independent” Chair and two “independent” directors “to more effectively meet APRA’s requirements around superannuation governance”. The media release acknowledges “APRA’s recent guidance and expectations”.

Well, that was more than I could tell you. And I couldn’t tell you that I had carefully drafted advice to members seeking the approval of the  █████████ ██████████ ██████████ █████████ ██████ before ██ ██████ ████ ███ ███████ ██ █████ ███ ███ ████ ████████████ ████ ██████ ███ █████ ██████ ███ █████ ██ ██ ████████ █████ ████ ███████ ████ █████ ██ ██ ████, ████ ██ ████ ███ ██████, ███████ ██ ███████ █████ █████ █ ███ ███████. 

Or anything else about the regulator, whether they have done anything, or haven’t done anything, ███████ ██ ███ ██████ ██████████ ██ ███████ ██ ██ ███ ████ ███, one dare not speak its name.

Narrabri GM wants more bloodshed

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Published: Wednesday, 30 October 2019 13:03

What kind of GM would want to prevent the Supreme Court exercising jurisdiction to review the standard senior staff contract to test whether it is “unfair, harsh or unconscionable or against the public interest”?

What kind of GM hasn’t been horrified at the “no reason” 38 week payouts used to remove a succession of competent and successful colleagues, whether they be sacked as general managers or other senior staff?

What kind of GM wouldn’t know that the ICAC in their report after investigating Mid-Western in 2016 recommended that something be done about “no reason” termination for senior staff?

And what kind of GM wouldn’t know that these issues are still the focus of the ICAC in their investigation of the former Canterbury, and the smart money is that they will do something in their final recommendations about how the “no reason” termination can allow councils to bully the GM, a GM to bully directors and generally create a lack of confidence in local government management?

Stewart Todd, is that kind of GM.

On 15 November the Supreme Court will consider his objection to our section 106 application that the standard contract is unfair and that the Court should step in and vary it. Mr Todd’s response as the GM who sacked our member at Narrabri, is to try to avoid the matter being dealt with on its merits by arguing the Court doesn’t have the jurisdiction. And if he is right, then no one has the jurisdiction to deal with a contract and employment arrangements that were abandoned by the New South Wales Government for their senior executives in 2013. More bloodshed ahead.

When the Local Government Act 1993 was made, it introduced an arrangement to employ senior staff based on the model operating in the New South Wales public sector - term employment creating vulnerability for employees when it comes time for the contract to be renewed and good employees can find themselves with the Council, for no good reason, simply not renewing. A termination of employment by any other name.

But in 2013 the NSW Government of Mike Baird announced fairer and more secure employment for the State’s Senior Executive Service by transitioning most of them to ongoing employment. And while there remained the possibility for a public authority to terminate one of these executives with 38 weeks’ pay, this required a written report to the Public Service Commissioner, detailing the steps that had been taken and the reasons for the termination. And by amendment later, a requirement that the Public Service Commissioner consent as the technical employer.

But the Government, having renounced these historic and unfair practices didn’t do anything at all to change the model operating in local government - to the detriment of many senior staff.

We can blame the Government generally, and a number of ministers for Local Government in particular for retaining this anachronistic approach. We would have preferred to see them take the “necessary decisions” (OLG joke) to retain parity with practices in the Government Sector.

Local government employment for senior staff should be fair, transparent and sackings examinable. What kind of GM, coming up through the ranks, would not want that?

Stewart Todd, is that kind of GM.

That’s not a monumental step, this is a monumental step

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Published: Wednesday, 30 October 2019 13:03

When NSW Better Regulation Minister Kevin Anderson announced the Design and Building Practitioners Bill last week he said it was a “monumental step in the reform of the building and construction industry”.

Oh, please, no it isn’t. Many critics responded that it was more likely the first step of 100 necessary to restore confidence but a monumental step would have been rolling back the option for a developer to pay their own certifier and restoring building and development control solely to local government.

The Minister’s announcement entirely ignores the steps that could be taken to ensure that buildings are built properly - right from the moment construction begins - that there can be proper inspection and control all the way through the construction, that there can be on-site quality control people like the old-fashioned clerk-of-works, and that a properly resourced and massively funded Building Commission could make sure it all worked.

Ignoring the construction and focusing on the potential that at some stage in the future, consumers who have bought something that turns out to be flawed or requiring remedial action or falls down, will have a range of people against whom they can initiate legal action doesn’t really help.

Interestingly, while legal action can be taken against a range of “building practitioners”, they don’t include the developer, who escapes (again) unscathed.

When the Premier Gladys Berejiklian announced on 10 July that private certification “hasn’t worked” and conceded “there’s a gap in legislation. We allowed the industry to self-regulate and it hasn’t worked. There are too many challenges, too many problems and that’s why the government is willing to legislate”, she could have done something about the adequacy of construction so that at the time someone buys a property, or an apartment, there can be absolute certainty about the quality of its construction and whoever built it, fixes it. But she didn’t. The developers win again.

More a monumental fail, than a monumental step.

Oh no, more “independent” LGS directors

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Published: Wednesday, 30 October 2019 13:03

In November last year we emailed members to explain how an “independent” Chair would be appointed to the LGS Board. Historically we’ve made our view known in depaNews that we don’t believe there is a role for directors on the board other than representing the employers and the employees in the industry. The Superannuation Industry Supervision Act 1993 requires that directors act independently (so what’s the point?) but the major regulator of superannuation funds, the Australian Prudent Regulation Authority (APRA) despite getting a bit of a serve from the Royal Commission, sees it as desirable. And if APRA thinks it desirable, funds had better get with the program.

In November last year we stressed to members that our director on the LGS Board at the time Sam Byrne had opposed this, as had I at the meeting of the shareholders, both Sam and I being rolled 7-1.

For reasons that can’t be explained fully, the expectation that this “independent” person would be appointed Chair of the Board by February 2019 was not realised. Only last week were members advised that two “independent” directors had been appointed, one as Chair, Kyle Loades, and one other as a director, Sandi Orleow. In the material sent to members and shareholders, there was no reference made to whether these directors had any interest, experience or passion for the concepts of responsible and sustainable investment that underpins LGS and its reputation.

During the year, and again being careful, there was a majority view of the Board and the Shareholders that there should be three employer directors and three employee directors, meaning that one employer director and one employee would need to resign. In the circumstances, the depa Committee of Management accepted that we’d had enough and our director Sam Byrne resigned effective 31 July .

We thank Sam for his service on our behalf and his commitment to responsible and sustainable investment.

The LGS Board will now be comprised of three employer representatives, three employee representatives and three “independent” representatives, one of whom will be the Chair. Someone’s mission is accomplished.

But despite our reluctance, the Sydney Morning Herald today announced these appointments in its Money section, under the heading “Local Government gets new chair, director”. Significantly, the article said:

The moves come after the $12 billion fund amended its constitution in June to make board changes following a probe into its governance by the Australian Attentional Regulation Authority (APRA).

And the incoming chair (incorrectly described as a “chairman”) is quoted as saying:

The board sees opportunity to enhance member value in the future. In line with APRA’s expectations, this will be an active consideration for the board and the leadership team.

We will provide an explanation for this next issue.

Finally, on the crisis in construction...

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Published: Wednesday, 30 October 2019 12:27

Last month we provided a report on our evidence to the Legislative Council Public Accountability Committee into the regulation of building standards etc. You know, the David Shoebridge Committee.

We had an outstanding obligation to provide a written response to two questions provided on notice that day and you can see our response here.

Uh oh, time to change feet

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Published: Wednesday, 30 October 2019 12:23

On Monday night, 30 October, the Public Accounts Committee grilled the Building Commissioner, David Chandler, about his role and expectations.

As he disclosed that he had identified another 200 apartment building with “significant issues” which remained “incomplete” despite being certified for occupancy and another two yet to be announced , he said it was the purchaser’s responsibility.

He said people “should go and spend a little more time having a look (at their apartment) before they settle” and “if people were prepared to do a little bit of research to work out who might be risky and who is less risky” there would be fewer problems. One of the members of the Committee Courtney Houssos MLC described his observations as “remarkable” and pursued Mr Chandler to confirm if his “advice is that homeowners become experts themselves” and whether there was a role for government to regulate.

(Ms Houssos is also an ALP member of the Shoebridge Committee and, from our experience, well-informed on the extraordinarily well-funded and well-staffed Building Commissions in Queensland (in particular) and Victoria.)

Mr Chandler responded to Ms Houssos there was “a role for everyone to do what would be appropriate”.

That includes you, Building Commissioner.

So, buyer beware, if you buy an apartment, it’s all down to you and your judgement.