Shellharbour shows why you need to be a member of a union

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Published: Monday, 25 March 2019 11:46

Computer and Carey say no

Last year Shellharbour Council restructured and dislodged a couple of our members who, when it became clear there was no alternative job that didn’t involve being paid less, decided to take redundancies.

The process rolled out over a number of months, commencing with a Q&A “to keep staff informed” and asserting it was in compliance with the provisions of the Award,  but under the heading “Who can I talk to? ” the council listed only management and HR representatives. No mention of the unions, why would you need to talk to them?

Being made redundant, or even choosing to be made redundant when there is no alternative position for you, is one of the great traumatic experiences of working. In local government the Award is explicit with entitlements but Shellharbour took the view that while the Award prescribed termination payments based on years of service, the prescribed five weeks’ notice, or payment in lieu thereof, was an opportunity to save some money.

As a general rule, anyone made redundant in the industry, either against their will or at their choosing, gets the payment plus the five weeks’ pay in lieu of notice. That uniform arrangement across the industry exists because those provisions have been part of the Award for more than 25 years.

There have been a few councils over the years which tried to argue that the employee had plenty of notice, so they had worked out the five weeks, but invariably when the unions have pushed back (most recently for us at Willoughby last year, one of the reasons why they were nominated in our HR awards) the Council falls into line with the industry practice.

But not Shellharbour where there HR Manager Paul Kiley famously responded to depa, “common practice in other Council’s (sic) does not constitute an entitlement”. We hadn’t, of course, we just said it was a common practice because everyone interpreted it the same way.

But having reached agreement with the employees concerned, neither of whom had been made redundant anywhere previously and believed they could rely upon the Council doing the right thing, nominated their final date of service and the Council seized upon this as allowing them to work out their five weeks’ notice and not receive payment as part of their termination. Nya nya, you lose, in other words.

This is a disgrace and it’s reasonable to say that had these circumstances existed at any other council, both would have received the full payment without fuss. Many councils where we are involved in negotiating redundancies have agreed that employees can take accumulated leave to get them to critical dates like 1 January for taxation purposes, or 31 December for defined benefit superannuation purposes, and then be paid their termination payment and the five weeks in lieu of notice. They do this, because they care for the wellbeing of their employees, particularly when they are losing their jobs. – unlike Shellharbour.

This was our second dispute this year and a Deed of Release was signed by one of the members which contains a confidentiality provision, so nothing to see here.

The second part of the dispute however was we wanted the Council to sit down with the unions and negotiate a protocol about how they would do this in the future. It would allow for a proper discussion with the employees about what they wanted to do with those five weeks pay, did they want to continue working at the Council and forfeit them as part of their lump sum payment at the end, would they work a couple of weeks and take the remainder as a lump sum, or what.

However, in the Commission the council made it clear they were not interested at all in a protocol regulating this because if people being made redundant don’t take advice from their unions to understand how it all works, then more fool them. Not in those exact words but that’s what it meant.

We think that appalling and we have a nice early nomination for our HR awards in 2019. But, we’re going to press on with developing a protocol and just for fun, we prepared one which the GM Carey McIntyre should have little trouble agreeing to, because it’s based upon how they like to do business now. It’s a joke of course, but doesn’t it damn them.

And we’re in dispute with another Council too

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Published: Monday, 25 March 2019 11:46

We’ll keep this one confidential in this issue but we filed a dispute with another Council over unacceptable behaviour by the GM. Our involvement quickly had the Council organise an external investigator to conduct an investigation before we were in the Commission on 11 March and on that day the Council agreed to six guidelines we proposed to keep the GM away from our members involved while the investigation continued.

But, notwithstanding that clear and unequivocal agreement, the GM ignored it on three occasions. We pursued it after each one and warned that if he continued to breach the agreement we made we would return to the Commission to pursue a recommendation or direction that he comply with the agreement.

Which we did on 20 March. The Commission agreed that while the GM may not agree with the agreement, and claimed he would not have agreed to it had he been in the Commission, that it made sense while the investigation was continuing for the GM to keep away and stop wandering through the workplace until the investigator’s report was available. Commissioner Sloan so recommended and the GM agreed.

We’ll keep you in the loop as this develops.

Super dispute in the Commission as well

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Published: Monday, 25 March 2019 11:46

We knew that our dispute filed more than a year ago about the degree of compliance in the industry with requirements in the LGS trust deed for the defined benefit schemes to include a value for private use of a motor vehicle in the concept of superable salary, was going to take a long time to resolve. Now there’s an extremely boring and unenticing opening sentence for people who aren’t in the defined benefit scheme, but unfortunately this has been an issue where members of those schemes haven’t been vigilant individually in ensuring that they received their entitlements, so it was even a bit incomprehensible for those affected.

This has required LGS to have councils focus on the superable salary calculation for 2018 and in the last weeks has pursued those councils which have included a component for private use of the motor vehicle in the superable salary for 2018, to see if they’re done similarly in previous years, and those councils where there was a question mark about how they had done it, to review how they had done it in recent years as well.

The dispute had been listed for a report in the Commission on 14 March and will be listed again to see what has developed from those LGS approaches to councils on 30 May.

NSW election means we’ll be bashing our heads against the wall with the Coalition Government

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Published: Monday, 25 March 2019 11:46

No-one knows yet whether the Liberal/National Coalition will govern in its own right or require the cooperation of independents, but we can only hope that whatever falls into place over the next week or two provides some hope for proper engagement about protecting senior staff against unfair treatment. Certainly better than the last few years.

We need a Local Government Minister prepared to listen and do the right thing. Senior staff employed by the NSW Government have been transitioned from term appointments to continuing permanent employment over the past five years, but our pressure on the Office of Local Government hasn’t swayed the Government to do similarly. There is absolutely no doubt that senior staff in local government deal with more political sackings and political pressure than their counterparts employed by the State, and they need better protection.

We love a challenge, and we are committed to getting it moving as soon as possible. This time, there seems to be some sympathy from LGNSW to prevent the unfair treatment that we’ve seen at a number of councils, Mid-Western and Narrabri for two, where our members have been sacked unfairly.

At Narrabri it looks to us like the GM breached the provisions of the standard contract in six areas prior to terminating it. Shameful, really. He has acknowledged one breach which he will remedy but refuses to respond, “the Council makes no admission”,  on the other five clauses he has breached, refusing to talk to us and respond to our correspondence. Hardly inspirational leadership.

We still hate term contracts for senior staff

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Published: Thursday, 28 February 2019 15:03

The scales of justice symbolise the importance of a balance between opponents in courts - the process is meant to be fair and even-handed.

But the least fair and least even-handed employment arrangements in local government operate under the standard contract legislatively enforced on councils to employ their general manager and senior staff.

This isn’t just an issue affecting a GM and directors, because if there’s no fairness available in their employment relationships, what hope is there to expect they behave fairly to their own staff? While the Award has fairly strict requirements about disciplinary processes and performance management, Award employees also have the safety net of access to the Industrial Relations Commission.

There is a long and sad history of the introduction of term contracts in councils. Initially seized upon as a way of getting rid of people easily without having to be fair or reasonable, the Institute of Municipal Management (the precursor to the Local Government Managers/Local Government Professionals, or whatever they’re called these days) encouraged the rot with a discussion paper arguing it separated out executive staff from the rest. And then they developed their own model contract, a flawed and contradictory document that earned them a special award from us way, way back, in August 1995.

The 1993 Local Government Act introduced the requirement for senior staff to be employed on a fixed term. We fought vigorously at the time, we argued it constantly and in the Five Year Review of the Act, the Minister for Local Government at the time, the much-loved Ernie Page, agreed with our concerns. In a letter to those who had participated in the review dated 6 October 1998 he said this:

It was submitted as part of the review that in some cases over the past five years, councils have used the fixed-term nature of employment contracts for senior staff as a tool for terminating individual staff, rather than using a more appropriate performance management system. This gives rise to concerns about the ability of council staff to maintain their independence and give professional opinions about Council matters as the end of their fixed-term draws nearer.

It is therefore recommended that senior staff should continue to be employed on contract, but that the nature of those contracts should be open-ended rather than fixed.

Sadly that recommendation to Cabinet was defeated, senior staff remain employed on term contracts and, as vividly demonstrated last week in concluding what had been a long-running farce at Parramatta City, Kunc J in the Supreme Court emphasised:

“the Council has a right to terminate without cause by giving the written notice or by making the termination payment under subclause 11.3... In any event, clause 10.3.5 again provides a complete answer because under clause 10.3.5 the Council can terminate the Contract without cause.”

And that, is the fundamental unfairness that allows a Council to terminate the employment arrangement without cause, and in turn allows a GM to do similarly to other senior staff.

It’s not good enough. While members of the SES in the State public sector have been transitioning away from term contracts into permanent employment now for four or more years, the OLG, responsible for the management of the Local Government Act, have sat on their hands and made a few minor changes, but remain committed to the capacity to terminate the contract “without cause”. Or Local Government Ministers have made them sit on their hands (a position they must find increasingly uncomfortable) but it’s hard to know.

The OLG managed a Working Party to review the GM and Senior Officers standard contracts way back in 2012, but there are still no protections, no mandatory mediation before termination for example, and still the 38 weeks’ payment without cause continues.

There was some disagreement between LGNSW and the unions, and also with Local Government Managers (or whatever they’re called these days) about appropriate termination and penalty arrangements. There is now a brand-new board of young bloods in LGMA, I wonder what they think about complying with the standard contract and unfairly terminating it? We’ll ask them.

This will be something for us to start pursuing again if there is a change of government in NSW after 23 March. But even if there isn’t a change, something needs to be done.

It is entirely possible for a Council to breach its obligations to conduct performance reviews, provide proper performance feedback to a GM, and any number of other provisions within the standard contract and then terminate without cause and get away with it. And similarly, it’s entirely possible for a GM to do that to a member of their senior staff. It’s a shortcut for the lazy.

When the GM at Mid-Western sacked two of the directors without cause, including a member of ours, back in 2016, we took action for that member under section 106 Unfair Contracts of the Industrial Relations Act which allowed us to settle. But the capacity to sack people without good reason remains.

In 2005, Haylen J in the IRC in Paparo v Moree Plains Shire Council found that the Unfair Contracts jurisdiction was available to local government senior staff, and that included the power of the Court to vary unfair contracts to make them fairer and to provide compensation beyond that provided in the standard contract.

Now with the separation of the IRC and the removal of the more judicial roles to the Supreme Court, section 106 Unfair Contracts run in the Supreme Court, a costs jurisdiction which will make councils and GM’s work harder to avoid what Ernie Page described as looking like they’re using “a tool for terminating individual staff... giving rise to concerns about the ability of Council staff to maintain their independence and give professional opinions about Council matters”.

It’s hard not to speculate that there are some shoddy terminations going on, where there is clear evidence that a GM, for example, has been guilty of multiple breaches of the senior staff contract for someone reporting to them, creating multiple layers of unfairness and then, clearing the deck, without cause by paying 38 weeks. The only prerequisite to that being section 337 of the Local Government Act, which requires the GM to consult with the Council prior to the termination.

And it would be a foolhardy GM who didn’t do that. Wouldn’t it.

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

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Published: Thursday, 28 February 2019 15:03

When the Full Bench of the High Court smashed the NSW Government in a unanimous judgment of the seven members on 29 January, they found that the steps the government had taken to slash the amount of money third-party campaigners could spend in elections were unconstitutional. That means, it was not legally available to the Government because of provisions in the Australian Constitution.

But, that stinging rebuke, that it was fundamentally unlawful, didn’t penetrate the members of the Government, who still blissfully continue refusing to use the word “unlawful” when they described their disappointment. This is extraordinary because this is the second time this has happened to this government. Pay attention you lot, it’s unlawful and unconstitutional, and now you’ve done it twice! So much for the learning curve.

NSW Treasurer Dominic Perrottet in the Sydney Morning Herald on 30 January said the government was “disappointed” and “unions will now have the ability to exercise free rein on spending the members’ dues - without giving them a say - on wall-to wall advertising during the NSW election campaign.

The purpose of our legislation was to clean up politics. The government believes elections should be free and fair, not bought with out-of-control spending by unions and other third parties”.

Given that they can spend $11 million themselves, that really is arrant nonsense but I’m sorry Dominic, it was unlawful. You can be as disappointed as you like, but it was against the law.

Similarly, John Barilaro, leader of the National Party in an approach to members and supporters lamented “The Unions have won”.

I’ve just received word that the High Court has blocked our efforts to rein in the vast amount of money Labor’s unions and third-party campaigners like GetUp can spend on election campaigns. It’s terrible news.

I am worried we won’t be able to keep up with a negative impact of this new spending that will be coming into our election. We are mere weeks away from the State Election and unions have just scored a major victory.”

Hey John, it was unlawful. It was illegal. It was thrown out because it was unconstitutional. That’s a level of denial comparable to the Nats’ denial of the evidence of climate change.

And finally, by regulation, the Government has now re-introduced the cap that existed prior to their unlawful legislation of $1.228 million, with no restrictions on the amount of money a number of third-party campaigners can pull together to participate in the democratic process. Now that complies of the Constitution.

And, four weeks out, has anyone seen the wall-to wall union campaigning?

We file our first dispute of the year with Snowy Valleys Council

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Published: Thursday, 28 February 2019 15:03

Section 354D is a real nuisance to merged councils, isn’t it? An indefinite protection on “entitlements” of employees that existed at the time of merger that Snowy Valleys didn’t really like.

And trying to hide behind the suspicious loss of documentation from the former Tumbarumba demonstrating that this was an agreement between the GM and the employee, they heavied a member of ours to stop paying the full costs of an associate diploma. More suspicious was that even documents and emails existing at Snowy Valleys supporting this continued arrangement have gone missing as well.

It was a relatively simple matter for us to contact the former GM at Tumbarumba and provide evidence to the Council, something that SVC didn’t bother to do. That would have been a good start, before the heavying.

It doesn’t matter about the politics of merged organisations, an entitlement is an entitlement. More next month.

"Roll out those lazy, hazy, crazy days of summer; You'll wish that summer could always be here"

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Published: Monday, 21 January 2019 14:11

Kaldas review released in December

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Published: Monday, 21 January 2019 14:11

We were a bit distracted in December with our wage theft issue, amongst other things, and haven’t yet reported on the release of the Kaldas Review just prior to Xmas.

Here is a link, if you haven’t seen it.

The NSW Government announced immediately that they had adopted the 19 recommendations (on page 7 of the report) but for our purposes, the critical issues are these:

• IHAPs will be extended to “other regional centres” but this only means Central Coast and Newcastle Councils
• Encourages transparent, clear decision-making processes (!)
• Recommends that the Department of Planning “establish an Independent Ethics Unit”
• Greater transparency within IHAPS, including probity checks of members of Planning Panels
• Recommends monitoring “the development of the South Australian scheme in relation to accreditation of Planners and review in 12 months’ time the desirability of progressing a similar scheme in New South Wales”. Uh oh, looks like a study tour to me, and
• dogs it on the issue of certifiers, saying “given there has been significant recent legislative amendments and ongoing work to examine the role of certifiers, I do not propose to make a recommendation in relation to this issue.”

Opal Tower fiasco raises opportunity to review everything

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Published: Monday, 21 January 2019 14:11

There are so many things potentially wrong with this fiasco to go into here in our lazy, hazy, crazy January issue but it does remind you of how more sophisticated and classy it sounds to call it a block of apartments than what it used to be called in the past, a block of “flats”.

Better to leave it to experts and there are few more expert than these two. First, the former local government reporter of the Sydney Morning Herald Harvey Grennan, who made a welcome return to the SMH on 28 December. We loved Harvey and we are delighted he took a break from the frustration of dealing with Central Coast to provide a clear and erudite analysis headed “Sydney’s dodgy buildings due to 17 years of inaction.” We love your work, Harvey.

And second, SMH journalist and ex-Sydney City councillor Elizabeth Farrelly in the SMH 5-6 January, under the heading “Opal: a planning failure not just a transport card”. Always a highlight of the weekend, and the guarantee of learning a new word or two, a fabulous probing and critical mind and a beautiful writer. Anyone who described private certification introduced by Craig Knowles and the NSW Labor Government 20 years ago as “a small measure of stupendous idiocy” bringing  the “inherent and unavoidable conflict between public duty and private money”, sounds like one of us.

Watching all of those involved in building, construction and development running for cover as this gets investigated, and calling them out, will provide us with a very entertaining 2019.

And just for good measure, and also to do the right thing by Gordo/LGEA/APESMA for their current campaign, Elizabeth last weekend dealt beautifully with the related issue of “Welcome to the Faulty Towers state, where any mug’s an engineer”.