Ex-Mayor of Hurstville exits with his tail between his legs

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Published: Wednesday, 29 March 2017 15:22

The former Hurstville Council had a very chequered history in its final years.  Riddled with allegations about inappropriate behaviour by councillors, Pizza Man GM Victor Lampe suspended until OLG intervened to secure his return to work (where he very quickly pulled the pin), and a flurry of allegations against the conduct of Mayor Con Hindi about his behaviour, personal developments and potential conflicts of interest.

The usual standard stuff really, and not really a surprise to those of us who have low expectations about the standard of people elected into local government office, but the significant concern in the list of unacceptable behaviour by ex-Councillor Hindi was launching defamation action against the Director of Planning and Development at the Council Michael Watt, over the content of a report dealing with unauthorised work at Hindi’s property.

This was unprecedented.  A report prepared by professionals, submitted by the Director of Planning and Development, a well-respected and highly-regarded planner, factually reporting on things that had been done on the property and making recommendations about remedy.  Despite the hundreds of crazy people, glory-seekers, rent-seekers, self-seekers, one-issue-zealots and general boofheads who have been elected to local councils over the decades trying any number of things to encourage, cajole or intimidate staff, this was quite a novelty.

And a novelty intended to prejudice the reporting by professionals about compliance with planning instruments and legislative controls.  It was an attempt at bullying of the very worst kind.

But, while being a blowhard might do it in the cut and thrust of boofhead councillors fighting with each other, when it comes down to pursuing vexatious defamation action that was unsustainable, Hindi came a cropper - to the extent that Hindi agreed to discontinue the claim, agreed not to commence any action arising out of the publication at all, provided a letter to Mr Watt confirming the withdrawal of all the allegations made against him and, tail firmly between his legs, concluded the letter with “I unreservedly withdraw any allegation that by publishing the report you defamed me or otherwise damaged my reputation.”

And, Hindi paid the costs. “HA HA!”.

Thanks Michael, a victory for all professional staff getting about their work.

OLG forced to state the bleeding obvious on employment protection

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Published: Wednesday, 29 March 2017 15:22

Every employee in a merged Council should print out and stick up on the wall subsection 354D and 354F of the Local Government Act.  These are the primary employment protection sections - 354D protecting conditions of employment and entitlements and 354F protecting employees against forced redundancy for three years.

Section 354D provides that an employee at the date of the proclamation “continues on the same terms and conditions that applied to the staff member immediately before the transfer day”.  There is no reference to a time limit.  LGNSW sought general advice on the practical application of these subsections from Anthony Britt, a prominent Senior Counsel, who famously made the observation in an opinion that “unlike some of the other “protections” in Chapter 11 Part 6 of the Act, it is not time-limited and, subject to the exceptions in s 354D (2), freezes terms and conditions that applied to the staff member immediately before the transfer date forever”.  Forever, nothing confusing about that. 

But, for the same reasons we could think it’s important to put procedural fairness in disciplinary procedures because some people just don’t get it, plenty of mischief-makers at the merged councils (a much more polite expression than my preference for “ignorant, bloody-minded, unnecessarily combative or nasty bastards” because I do respect wise counsel) and apparently some of their mischief-maker solicitors, allegedly a barrister but which the Council won’t name, some HR flunkies or, in particular, a Chief Operating Officer, thought they could advance an argument that the three years’ protection in 354F also applied 354D.  Wrong, wrong, wrong.

The only way an employee can forfeit or lose their protections under 354D is if they agree to take a lesser position at a lower rate of pay or if they are made redundant under subsection 354F in May 2019.  No contest, no issue, no argument.  At least, except for those who do want to argue it.

The dreaded three-year limit on 354D protection got a run at a number of councils - Central Coast, Georges River, Inner West and Northern Beaches to name four who should know better.  Both Central Coast and Georges River found themselves in industrial disputes with the local government unions and, like the cavalry to the rescue, the Office of Local Government had to state the bleeding obvious.  

On 20 March they sent advice to all IGMs and Administrators to express the self-evident and make it clear that “employees “must continue to be employed under the same terms and conditions unless they voluntarily consent to the alteration of their terms and conditions (this is not time-limited)”.  Their emphasis on not, was included in the letter.

It was timely because it could be handed up that day in proceedings with Central Coast (the Council which claimed it had a barrister supporting them but they won’t name) and may need to be handed up the current dispute with Georges River.

While Central Coast has now appropriately changed their documentation and approach to acknowledge the “forever” nature of the protection, you have to hand it to Georges River and whomever writes their scrappy, inaccurate and confusing documents, to clarify it in the most brutal and belligerent manner possible.  Georges River made it clear that the employee can continue those conditions “noting that Council intends to terminate their employment on the grounds of redundancy after 12 May 2019”. 

This, of course, is a very bold call, seeing no-one really knows what’s happening in two years’ time, there will be an elected Council in office, there will probably be a new general manager and other staff as well.  Still, when you’re proven to be wrong, no-one much does begrudging as well as Georges River.

LGNSW backflips on decades of cooperation

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Published: Wednesday, 29 March 2017 15:21

It was a triumph for cooperation, shared values and the desire to build an effective and efficient local government when the Local Government State Award was made by agreement between LGNSW and the three unions in 1991.  The new Award was preceded by a skills audit of the industry, funded by the NSW Government and cooperatively managed between the employers and employee organisations, 400 classifications disappeared from five Awards and 11 levels and pay rates were introduced, based on gender-neutral skills descriptors.  Lovely, a great achievement.

In the intervening quarter of a century (yes, it has been a quarter of a century) the parties to the Award have regarded it as a dynamic document which can be adjusted to accommodate the needs of the industry.  When it’s up for renegotiation it gets the repairs and any fine tuning it needs.  Cooperatively, issues that are identified in industrial disputes during the year, imprecision or confusion about interpretation or whatever, all these things get fixed.

Sure, there are some things that require the Commission to bang heads together and get an agreement but by and large the document was made based on goodwill, shared values and cooperation and has been varied by agreement continuing those values, ever since.

But not this time.

We started negotiating the 2017 State Award when we exchanged logs of claims back in September.  Again, the unions made claims based on problems that had existed in the industry over the term of the 2014 Award and off we went in negotiations with the assumption that the quarter of a century of goodwill, co-operation and shared values would continue. But it hasn’t.

As an example, let’s take our claim for twelve fundamental principles of procedural fairness to be incorporated into the disciplinary procedures.  Here is a link to our log of claims if you need to refresh your memory on these principles but the twelve principles were all drawn from case law, decisions taken in industrial tribunals establishing fundamental considerations that should underpin  procedural fairness. With some minor rewording they now constitute a joint–unions claim.

Procedural fairness is the weak underbelly for employers in disciplining and sacking employees.  That’s where the knife invariably goes in during an unfair dismissal and the first and fundamental consideration in any employment tribunal is whether the process was fair.  It’s where employers get it wrong and where many an employee gets away with something that, had it been procedurally fair, they wouldn’t be returned to work. 

But LGNSW takes the view that councils don’t need to provide procedural fairness in an investigation, that amongst other things, councils shouldn’t be troubled by simple rules, well-established as procedural fairness principles - like providing all of the evidence to an employee to allow them to respond properly, allowing an employee to nominate witnesses or others who should be interviewed to support the employee’s position etc.

How can an organisation have two different approaches to procedural fairness?  They support procedural fairness when it comes to looking after councils and councillors but they don’t support procedural fairness when it comes to looking after employees.  Hypocrites of course, but being labelled hypocrites should be the least of their worries as they confront this dichotomy because there are two other serious considerations here for them.

The first is that local government had no guidelines in any Award about disciplinary procedures, rights and obligations on the employer, or rights for an employee.  The first Disciplinary Procedures clause went into the 1995 Award as a result of a claim put up by depa.  At that time the industry had been the subject of a series of unfair dismissal cases where, given the lack of procedural fairness, employees were reinstated so fast that heads were spinning back at the councils.  Something had to be done.  

The agreement at the time was that councils must “properly conduct and speedily conclude” any investigation process.  This should be enough really but councils revealed a range of bizarre interpretations about what constituted proper conduct and what constituted speedy conclusion.   We had a dispute with Campbelltown more than a decade ago about an interminable process that was vigourously defended by the Council as being both competent and timely when it was neither.

As we negotiate the Award the unions are surrounded by multiple examples of councils which simply get it wrong, which deny procedural fairness in an investigation, who withhold evidence, who choose not to speak to witnesses etc. Why wouldn’t it make abundant sense to write the rules down in a legally enforceable way so that a Council knows how to do it and an employee knows what to expect?

The second is LGNSW argues that if the employee being investigated is unhappy about the unfairness of the investigation, then they should file a grievance, or have their union file a dispute for them, but they can only do this by ignoring the welfare of the employee being investigated.  An investigation can be the first time an employee finds themselves in that position in a long career.  Employees are naturally both anxious and fearful of the process and how they will be treated.  Many are afraid of upsetting the Council and it takes a courageous employee already being investigated to compound the awkwardness of the relationship with the Council by filing a grievance or having their union drag the Council into the Commission.  At the very least it compounds the employee’s anxiety and concern.

Employees being investigated want the investigation conducted quickly and fairly.  They don’t want any trouble and they certainly don’t want to be seen to be sticking it up the Council because they want to be cleared to continue working there.

The LGNSW on this is not just unrealistic and hostile to employee welfare, it is perilously close to setting up councils to breach their obligations under the Work Health and Safety Act 2011.

How can an employer, unfairly conducting an investigation that impacts on the health and well-being of the employee because of its unfairness, not be in breach of its obligations to “secure the health and safety of workers and workplaces”?  The legislation is there to protect employees’ health, safety and welfare “through the elimination or minimisation of risks arising from work”, to provide for “fair and effective workplace cooperation in relation to work health and safety”, to “provide a framework for continuous improvement and progressively higher standards of work health and safety”, and all these things under the principle that workers should be given the “highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work”.

Being hypocritical is one thing, setting up circumstances that compromise health and safety for employees in an investigation is another. 

Let’s just write the rules down in the Award.  It would mean that councils won’t find themselves in the Commission for breaching procedural fairness and employees will get fair processes and an acknowledged regard for their well-being.

Conciliation on the outstanding issues continues...

It’s hard not to feel sorry for Gladys

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Published: Wednesday, 29 March 2017 15:21

Walking into the job of Premier after Mike Baird chose his time to smirk his way out of it was, for Gladys, just like walking into an empty lift after someone had farted in it as they got out.  Two months later and the fart still hasn’t cleared.

Mike Baird left her quite a legacy: WestConnex and its destruction of heritage houses and lifestyle as it cuts a swathe through the inner west, and its underlying 20th century approach to ignoring public transport and focusing on the private car; the belligerent focus on removing restrictions on planning to focus on development; fantasising at privatising nearly everything; the government’s own developer body ignoring environmental and heritage considerations and the legacy of an ordinary process used to justify amalgamations.

But it’s the issue of amalgamations that makes us feel the most sorry.  It never made any sense to treat a report by KPMG on the claimed financial advantages of rationalising Council boundaries as some kind of secret document.  We know that it has flaws in its analysis - for example, when it calculates the cost of job losses over time it does so based on redundancy benefits under the Federal Award which provides lesser entitlements than the more generous payments under the State Award – but who knows what else it provides and how it would survive a close-up test, or even the pub test.

And considering that the Government loses cases on amalgamations brought by unhappy merger targets solely because of the absence of procedural fairness, it would have made sense to get the process right from the start.

LGNSW seized upon this week’s Court of Appeal victory for Ku-ring-gai with observations reinforcing the importance of procedural fairness and the folly of making decisions without access to all of the facts.  Everyone wanted the release of the KPMG report since it was first announced.   “This is what we’ve been saying all along”, said the president of Local Government NSW, Keith Rhoades.  “They still have not released that report”, said Councillor Rhoades.  “And I don’t think they will - I don’t think it will stack up the way they want it to”.

We couldn’t agree with Keith Rhoades more.  It never, ever makes sense for decisions to be made that will have an adverse impact on others without the process being rigidly procedurally fair - to the extent that often it’s important to have those rules written down.  If they’re not written down, they can be implied and the Court of Appeal relied upon the implied concepts of procedural fairness to hand the win to Ku-ring-gai. 

What a pity that the President of LGNSW is not quite so strident about the importance of procedural fairness when it comes to how his organisation negotiates the State Award...

What would Mike Baird have done?

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Published: Wednesday, 15 February 2017 14:48

Well, it’s unlikely he would have done that.  It was a Baird-investment banker policy all along with bigger councils providing easier access for developers and, while Premier Gladys reinforced the importance of mergers in the Sydney metropolitan area for fewer barriers for developers and more affordable housing (oh no, not again), we can’t help but think the ex-Premier will be disappointed.  

We didn’t really get a chance to farewell him although we have remarked in a number of issues about his hostility to century-old institutions like the Industrial Relations Commission, the Anzac Fig trees at Randwick and Federation housing wherever it might get in the way of WestConnex, but again we really couldn’t say it any better than the incomparable Elizabeth Farrelly in the Sydney Morning Herald on 27 January:

"Baird’s administration was like the worst kind of husband: controlling, humourless and puritanical, ultra-straight, ultra-dull, ultra-male.  Chainsaw Mike.  Bulldozer Mike.  Motorway Mike.  The Baird years were all boofheads and bulldozers, pinstripes and steel caps. Demolish, concrete, consult, in that order.”  Full article here.

The incoming Premier should take that as a warning shot across her bows.

Uh oh ...

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Published: Wednesday, 15 February 2017 14:48

NSW Deputy Premier and Premier yesterday

NSW Premier Gladys Berejiklian yesterday announced that the proposed local government mergers would only proceed in those areas she could comfortably drive to and get a decent coffee.  Reprising the Eva Gabor role from the 60s television series Green Acres (and making the role her own) the Premier announced that those amalgamations proposed outside the metropolitan area would now not proceed.  

While it’s easy to observe that the Premier should get out more  (because you’ve been able to get a decent coffee the other side of the Great Dividing Range for over a decade and places like Orange, have a thriving wine industry and great restaurants and cafes to boot - there is no Sydney-centricity in the depa office), the quarantining of regional areas and the bush generally sets up a very hypocritical approach to what should be an issue of public policy and the efficient delivery of local government services.  The Government will struggle to get over this.  

Clearly what’s good for the goose, is not necessarily good for the gander, in a Berejiklian/Barilaro New South Wales.

Smiling even more than the Premier was Deputy Premier John Barilaro.  Not only triumphantly delivering on a National Party policy of no forced mergers in the bush (but conveniently leaving alone the forced merger of his hometown Queanbeyan with Palerang) he was able to cleverly disguise his hammer lock on the Premier at the media conference in Parliament House yesterday.

If the bookies are right, the High Court will reject Woollahra’s application for leave to appeal later this month and Woollahra will have to merge with Randwick and Waverley, Hunter’s Hill will merge with Lane Cove and Ryde, Mosman with North Sydney and Willoughby and Hornsby and Ku-ring-gai.

You can see yesterday’s Media Release here and an up-to-date summary of those new councils that started in May 2016, the proposed Sydney mergers subject of the decision of the courts and those that won’t proceed from the NSW Government’s www.strongercouncils.nsw.gov.au

Next month ...

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Published: Wednesday, 15 February 2017 14:48

And more.

The sharks are circling

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Published: Monday, 23 January 2017 13:28

It’s hard to get motivated in January, isn’t it.  Hot, sunny, lazy days stretching out, holidays and no work, the beach, sultry nights, who doesn’t like summer?

But each year the media feels obliged to remind us that every time we go to the beach, there are sharks out there, hungry, circling and thinking how delicious we look.  But notwithstanding a bit of a surge in shark attacks locally in recent years, there is a better chance of being killed or injured driving to the beach, particularly if you’re driving on holidays.

There is also a better chance of being killed by coconuts falling on you, bee stings, pushbikes, your pet or someone else’s, cows, mosquitoes, champagne corks, or your wife or husband.  And whatever you do, keep away from hospitals – they are really dangerous places. Even DIY at home will get you before a shark will. 

They reckon the chance of being attacked by a shark across the globe is a one in 3,748,067 chance.  There is a much, much higher risk of some stupid daggy politician trying to kiss your baby.  So if you restrict your concept of shark to being the famous sea-bound predator, the chances of a shark ruining your life is pretty low.

But let’s talk about real sharks - rapacious, life-threatening, environment-ruining, craven, hungry, gluttonous, voracious but insatiable and threatening your quality of life, then summer not only brings with it shark stories, but the usual government commitment to fix planning.  Oh no, not again?  Because it’s in planning and development that the real sharks circle.

The announcement by Planning Minister Rob Stokes a couple of weeks ago to make amendments to the EP&A Act tried the three card trick - making housing easier to build, so there’s more of it and it’s more affordable.  Haven’t we seen that before?

But when it’s accompanied by rabid support from the white shoe brigade in the Property Council, the Urban Task Force and the UDIA, then we’d better look out.  They are three organisations never happy to accept the idea that planning instruments are primarily there to ensure that communities are protected and the public interest preserved when developers see a vacant site and get all hot and excited about building something monstrous on it to make themselves a motza, but always under the guise of doing everyone a favour.

We can’t do any better than providing links to two great articles that say it all so much better than we could.

First, the brilliant and incomparable Elizabeth Farrelly in the Sydney Morning Herald on 14 January under the heading “Call me a cynic, Sydney’s planning changes just won’t deliver” - not only a beautifully written opinion piece but a constructive and thorough defence of the primacy of the public interest.  If only all opinion pieces and commentary was as good as this.

Second, and on a smaller and more accessible scale, is an article also from the Herald on 18 January by Jacob Saulwick - addressing the inconsistency of the Government’s commitment to better design while at the same time proposing two-storey terrace housing to be included in complying development - without any consideration to the other aspects of Victorian development that make terrace housing compatible and socially welcoming like lane ways and parkland and in a way that would remove any consideration from the community of design.

In January we’re allowed to draw upon the incomparable and compelling contributions of others and contract out our arguments. 

Who has the worst HR in local government in 2016?

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Published: Tuesday, 20 December 2016 09:09

Can it be true, that 2016 saw an outbreak of relatively good HR? In 2015 we had 10 councils nominated and the winner was Shoalhaven, and for the second time.  Looking back, it also included councils that still lumber on with continuing problems - Byron with their attitude to downgrading senior positions and finding they can’t attract staff (who’d have thought!), Cessnock with their sleight of hand on the development of an EA where this year they paid the penalty for the third year in the row for not having a salary system in operation and having made some very bad decisions about selecting a job evaluation system. Mercer!

Anyone who chooses Mercer as a job evaluation system in 2017 will get an automatic nomination.  Insidiously, it’s creeping across the local government landscape with a job evaluation system they steadfastly claim properly evaluates jobs but admit that when the skill descriptors went in the State Award in 1992 their system remained unchanged. And when the employers and the unions got together to develop the Local Government Job Evaluation System, which included agreed factors and weightings, Mercer’s system remained unchanged.

Cessnock has been lumbering on trying to introduce Mercer and hammer it down onto the local government landscape.  Chaos reigns.

We started awarding the infamous Golden Turd in 2010.  We did it because we’d seen some very ordinary HR and needed some mechanism to name and shame those who simply don’t get it, don’t try or don’t care.

We claim credit for moving on some HR managers, for getting the recalcitrant to focus on proper process, policy and protocols and changing attitudes of the reluctant to provide more focus on respecting employees and their needs in the workforce. There is also a certain degree of infamy too, because councils just don’t like having the worst HR in local government and they do usually try to do something about it. We’re helping lift the bar. No nominations for Shoalhaven this year.

2016 was different.  A reduction in the number of women meeting resistance on their return to work after babies and, let’s acknowledge some good work from Parramatta City HR which dragged a Neanderthal into the 21st century  and made him agree to suitable arrangements that should never have been rejected in the capricious and contemptuous way he had. Maybe there was some relief too from those councils not facing mergers and for those merged councils, dealing with much, much bigger issues, maybe the mergers had produced better behaviour – but sadly an improvement not provided as a reporting requirement in the DPC performance criteria.

This year we have four nominations, and the nominees are:

Campbelltown City Council

Despite Campbelltown’s core values of Respect, Integrity, Optimism, Trust and Team Work there has been little respect and trust shown to staff but significant optimism shown by staff who continue to hope for the best.  It’s one thing to acknowledge “trust, it takes years to build...  and seconds to lose” but there’s not much trust building going on there at the moment and we’ve had a couple of experiences late this year where the idea that they do anything to honour the behaviour of “Respect, you don’t get respect because you want it, you get respect because you earn it” seems only like gross hypocrisy.  More honoured in the breach than the observance, really.

Campbelltown is a growing area with historically benign leadership from general managers but some predictable gaps in processes and procedures.  In 2006 we filed a dispute with Campbelltown over a dawdling, indolent, unfocused and sub-professional investigation conducted by two of the directors at the time.  As part of the dispute the Council undertook to the IRC they would develop a policy but indolence and lack of focus meant that we needed to file a dispute again in 2014 (yes, eight years after they had undertaken to do it) to finally have the IRC assist us develop a policy on investigations which we thought at the time was probably the best in the industry.  One of the unfocused directors left for greener pastures but the other, Director of Community Services Lindy Dietz, is still there …

And just for fun, (because while this is a serious issue aimed at improving behaviour and standards in the industry, it is also meant to be fun) here is our letter to GM Paul Tosi in October 2006 telling him, quite clearly that we give up and will leave it to them.  But we left it to them to do what they do best, absolutely nothing, by making it clear that if any of our members were to be investigated in the absence of a decent policy, we would file a dispute and have the IRC manage it.

In 2014 we’d had enough, we filed a dispute and we fixed it.  

A succession of consultants’ reports into the planning and environment division showed that they were chronically understaffed.  Five planners down a consultant said five years ago, and given that both the work and the revenue has increased by 25% or so,  the recommended five additional planners would more likely to be seven planners needed now.  But the lack of leadership in that division and the incapacity of a succession of directors to be accessible and supportive of staff, and to do things to assist them, meant that those recommendations weren’t adopted, the positions weren’t advertised, the positions weren’t filled.  

The under-resourcing is reflected in comparison to similar councils in OLG Group 7, and next door at Camden, assessment planners have about half the allocation of DAs as their colleagues at Campbelltown. And it’s no better for the accredited certifiers.  

This is compounded by the Council’s notoriety for taking two years or more to fill vacancies.  Our more co-dependent members think it’s good that at least they are filling them eventually … it’s better than nothing. After all, they don’t get beaten up every day. Stockholm Syndrome, clearly.

The lack of respect for proper resourcing runs everyone ragged.  Overworked, ignored, disrespected.  A significant workplace safety issue ticking quietly away.

Hilariously, this year a member whose PD identified that he was responsible for the management of fire safety, but the Council refused to appoint people to do the work, proposed that if they weren’t going to resource their significant and high-risk liability, then they should remove that from his PD.  And they did!  An astonishing approach to risk management which says something really, really significant about the Division and its leadership.

Proper staffing will be a big issue for us in 2017.  You watch.

The longest-running restructure in the history of the world meant that we had a member acting in a managerial position as a temporary appointment for double the 12 months provided as an absolute limit in the Local Government Act and, when it came to filling the newly created manager positions when the finger was finally extracted under the new GM Lindy Dietz, any policies or protocols they had on recruitment processes, treatment of candidates and internal appeal mechanisms were studiously ignored.

How else do you explain applicants for positions being invited to interviews without notice of which positions they are being interviewed for, and then finding that the interview was for two positions?  A bit hard to prepare when you get an invitation without specifics.  Pretty disrespectful, really.  Then, interviews curtailed or expedited because a member of the panel couldn’t find the room and then had a more important meeting to attend and the time for the interview couldn’t be extended.  Then, having an employee act for two temporary appointment periods in 2009 and 2014, both of two years and on both occasions taking the view that while they were absolutely perfect while they acted in the job, they wouldn’t be appointed - all with no consciousness of how humiliating and logically inconsistent that decision was.  Then, how an employee appealing the fairness of a process of not being offered a position of manager gets an Outlook invitation to a meeting with the subject simply “Interview” and which turned out not to be an interview but an appeal on the fairness of the process under their protocol. No information at all provided – like it was an appeal, that a Director had been delegated the role by the GM, that the employee could bring a support person etc.  

All this and more establishes a general lack of respect for employees without rival in the industry.

And a lack of respect which has seen the Council lose two long-serving, loyal and well-regarded employees who had simply had enough.  And one of whom, leaving the organisation with a VR having refrained from accepting a grossly understaffed and under resourced managerial position as a poisoned chalice, but being moved out by the GM two months short of his 30 years of service.  Hard to top that, isn’t it.

So Campbelltown gets nominated and notice that they are in our sights for inadequate resourcing and disrespect of staff in 2017.

Lake Macquarie City Council

Laura Kendall and Steve Brown going to a lynchin’

LMCC is a Council which flies largely under the radar, notwithstanding some pretty unusual appointments in their HR area over the years.  It’s in its HR decision-making that it sometimes shows some lapses of judgement. Notwithstanding the wisdom and benign leadership of GM Brian Bell, they did find themselves in the Federal Court in a bullying and harassment case that ran for weeks and cost the Council an absolute bleeding fortune.

So in a way it wasn’t a surprise this year to find a member of ours involved in an investigation by Organisational Performance Manager (!)  Laura Kendall and the Manager Development Assessment and Compliance Steve Brown where both of them, right from the start, were absolutely convinced that he was guilty as charged.  A couple of people more likely to get excited about a lynchin’, would be hard to find.  

Ms Kendall, acknowledged in the Minister for Local Government’s Women in Local Government awards last year, pursued the investigation with the sole purpose of nailing someone - compromising procedural fairness by failing to do a number of things that would have allowed the employee to establish their innocence.  What the heck, the noose is ready to be thrown over the hangin’ tree and all they need to do is beat out a confession and find the innocent employee guilty.

Just about everything was a problem.  There was a flavour of intimidation right from the start - called to a meeting with Ms Kendall and Mr Brown at 2:30 in the afternoon on the Friday before the Anzac long weekend our bloke was told they were undertaking an investigation but details, although in the Council’s possession, were withheld.  At the next meeting, on his return to work after the long weekend on 27 April, four allegations were made.  The Council had documents relevant to three of them but refused to provide them.  

Notwithstanding their refusal to provide these documents, Ms Kendall pressed the employee to make confessions. When Mr Brown asked whether he could be shown the evidence, her response was “not yet”.  Not yet, why provide the evidence if you can squeeze out a confession? 

Ms Kendall put to the member that “in my experience, people were more likely to be accurate in their immediate response than any considered response”.  This was unacceptable pressure to make a confession where he had no information or awareness of what was being alleged.  The implication was that employees would be more likely to tell the truth of they didn’t go away to think about it or to check the evidence.

Again referring to her “experience” she observed that “there are two types of employees, those who accept their punishment and move on to end up with fulfilling jobs, and those who make trouble”. Leaving aside the employee is entitled to see and challenge any evidence, this is not procedurally fair, pressures an employee to cop it, fair or unfair, right or wrong.

Ms Kendall’s LinkedIn profile shows that her first HR job was Lake Macquarie in 2014 (and then that time included a “less than a year” secondment as AGM at Broken Hill), so had been in the HR job for less than a year before conducting the investigation. Still, she has an impressive asset management and engineering background.

When pressed by depa to check our member’s story with a witness who would be happy to be interviewed, they refused to do so. We said we would unless they objected (and they didn’t) and when we contacted the witness and asked for a statement about the circumstances, Ms Kendall then responded that our “contact … causes a significant concern and leads us to the view that we cannot be satisfied Mr X’s (witness name withheld) responses were made on the basis of his own knowledge and recollection of the relevant events alone”.  That is, the member being investigated lied, so did the witness, and so did I.

Remember, depa only contacted the witness because they refused to do so and they similarly refused to contact another witness we urged them to contact on one of the other allegations that was subsequently withdrawn.  They don’t want witnesses to get in the way of a good lynchin’.

Failing to provide evidence to a person under investigation is a chronic and substantial failure of procedural fairness.  In the end, a significant and punitive punishment was imposed but an appeal to GM Brian Bell resulted in his intervention and overriding most of Ms Kendall’s decisions and penalties in a way that properly recognised the failure to provide procedural fairness, the employee’s service and valuable contribution to the organisation and, in an embarrassing turnaround, also recognised the lack of training and skill of those who conducted the investigation.  More training needed please.

Well done Brian, you pulled this one out of the fire.

But, if it’s true that for every action there is an equal and opposite reaction, Ms Kendall and Mr Brown and their clumsy, sub- professional, venal and partial investigation may well do everyone a favour.

Ms Kendall to a greater extent than Mr Brown, can claim responsibility for our claim in our log of claims for the 2017 Award to fill out some detail in clause 39 Disciplinary Procedures where a Council is obliged to “properly conduct and speedily conclude an investigation”.  Ms Kendall showed that the Award needs to be more detailed, more explicit and more helpful to those who don’t understand that underlying every investigation is a presumption of innocence.  That’s why in claim number 16 you will find the 12 minimum requirements for procedural fairness we are pursuing to go into the 2017 Award.

Interestingly, the Director of Corporate Services has been conducting a review of the policy on investigation and disciplinary processes in parallel with this fiasco, we have spoken and provided a list of our 12 requirements of procedural fairness.  That was three months ago and we haven’t heard a peep since, despite chasing up before going to press with this issue.

So Lake Macquarie gets a nomination.

Mid-Western Regional Council

GM Brad Cam’s sacking of two directors at Mid-Western in 2015 has become notorious and, as often is the case in circumstances about which people will say “and the world changed forever”, people did start looking anew at the undesirability of a political decision to sack senior staff under those provisions which allow it in the OLG Senior Staff Standard Contract.

But Mid-Western gets another nomination this year not only because the settlement of our action on behalf of one of the directors happened in this calendar year, but because the Council compounded the problem and the questions about the appropriateness of sacking two directors during the currency of an ICAC investigation. The Council decided, when the ICAC report was provided to them confidentially but allowing the Council to determine whether it be dealt with in public or confidentially, they chose to keep it all quiet by dealing with it in a confidential session.  After which, the only official news was that the report and its recommendations were noted.

Brad Cam reminded us that it is not good public policy to have employment arrangements that allow the sacking of good people who are doing a good job - particularly in the sort of politicised employment environment that can often exist in local government with elected representatives wanting to call the shots, ride roughshod over planning instruments and proper compliance, and punish those trying to do the right thing.  

And, when the State Government has removed term contracts from their SES positions, then the question can reasonably be asked when that will also happen in local government?

So Mid-Western gets a nomination.

City of Sydney

The City of Sydney has been a nominee in 2014 and 2015.  Usually because their communication is confusing, there are glaciers that move faster than they do in the way they respond to issues and they constantly need to be pulled into line. This year, their tardiness and lack of concern for the health and well-being of their staff was evident in how they responded to an asbestos contamination accident in Town Hall House in October.

On 7 October, two very junior locksmith subcontractors, working for the contractor responsible for the maintenance of Town Hall House, drilled 14 fire doors containing asbestos without anyone knowing that they were doing it and without noticing that the door jams contained a warning that the doors contained asbestos fibre.

The City was told of the contamination at 11:40am on 7 October when someone from the contractor realised that this was happening.  The City was advised that doors had been drilled and that the doors contained asbestos but for reasons not yet properly explained (even though a dispute about this issue has been in the Commission already three times) no one at the City thought there was any need to send the employee’s home.

This meant that 900 or so employees remained on site with asbestos fibres contaminating 14 different areas in the building.  And they remained on-site for the remainder of the day, and as the contaminated sites were in the foyers and passageways to the toilets, anyone in the building on the relevant floors would have walked past the contaminated sites across carpet that has subsequently been replaced because of that contamination.

But the City has been very, very reluctant to disclose a whole range of things about the contamination.  While there is an external report with recommendations to be implemented pointed substantially to failures by the contractor, the unions simply didn’t understand how no-one at the City knew that the contractor intended to do this work.  How can that be?  While the work is contracted out, the City’s obligations to provide a safe and hazard free workplace remain the City’s.  

So we’ve been dealing with the City both in and out of the Commission, trying to understand why they regarded this as a low priority issue and how this kind of high risk contamination is really the contractor’s fault.  After half an hour of frustration, while the City’s property experts told us it was all about the contractors’ protocols needing to change but steadfastly ignoring any role for the City, we asked why they couldn’t simply email the contractor immediately after our meeting and tell them that they are not to set foot on the premises to do any work that may involve asbestos without prior knowledge.  And, who would have thought, in all of the covering of bums, they had already done that but hadn’t bothered to tell anyone. Why is it always that the first response is to protect the City and look like they are covering-up?  

Worse for us, was that we had been told by CEO Monica Barone that we would be given the report being done on what went wrong as soon as it was “completed and available” and then discovered that the report was received by unidentified people at the City at 7pm but it hadn’t been provided to the unions until more than 24 hours later.  Where had it been and what had the City been doing with it seeing it was clearly “completed and available”?  

The City’s original response was intentionally imprecise but on the second occasion before Commissioner Murphy, the IRC recommended that they reconsider that advice to provide more specific detail - particularly responding to our concern that it looked like no one cared what had happened to the report, or if they did, the CEO didn’t have a copy at 1:48pm the following day when she reassured us that we would get it when it was “completed and available”.

That information was provided in the Commission late on December 8 and the City has now confessed that after it had arrived at 7pm it was distributed to the executive including the CEO almost immediately and that when Ms Barone was emailing depa as the notifier of the dispute that we would receive it when it was “completed and available” she was sitting at her computer with the report in her inbox, where it had been since around 7pm the night before.  The City’s response was that she had a “very busy day” and while she had time to send me two emails reassuring us about getting the report, it was sitting right in front of her.

This is a disgrace.  It was bad enough when it looked like the report hadn’t found its way to the decision-makers but it’s even worse to know that the CEO, members of the executive and others had the report and the CEO had responded to us with what looks remarkably like a porky.  The report was completed and available when she told us that we would get it when it was completed and available.

This dispute will continue to unfold in 2017 as we insist upon proper recognition from the City about the risks of asbestos contamination at work and to make sure this sort of calamitous workplace health fiasco never, ever happens again.  Just how we continue to deal with the City, with what looks remarkably like the CEO's pants on fire, means that the City of Sydney gets a nomination as well.

And the winner is …

Four very different but very worthy nominations all of which are demonstrating, in one way or another, fundamental problems with the human resources management and the classic ingredients that makes a good nomination for the Worse HR in Local Government 2016.  Plus some duplicity, some incompetence, some demonstrable needs for significant and urgent training all made it very difficult to decide.

But the winner has to be Campbelltown.

We have history with the new GM Ms Deitz from the 2006 clumsy and sub-professional investigation we observed that made us file a dispute. At the time we told members that every time we said anything in our argument with the investigators about their process that Ms Dietz spent so much time rolling her eyes we wondered whether she had Tourette’s.  We knew she didn’t, (it was a joke), we just thought the eye rolling was a bit excessive and, here’s that word again, disrespectful.  

One would have hoped however that a woman GM, from a “caring” profession, would have been able in her close to two years acting and then appointed as GM, to make some improvements that live up to Campbelltown City’s boast of “Respect” as a significant corporate value.

As the first woman in the job of GM at Campbelltown, it’s one thing to be “humbled and excited” but it’s another thing to accept that when you’ve got the top job, you are the one responsible for ensuring respect and proper treatment of employees and, so far, in the processes that we’ve seen, the slipshod, ramshackle procedures of appointing, or being unable to appoint in the restructure, the total lack of proper information, the tendency to justify the unjustifiable, something better should be happening.

Campbelltown is the winner.  And we are committed to ensuring that, whether they like it or not, inadequate resourcing has to be dealt with and the GM and the Council generally need to treat their staff like they care and like they matter. 

And that’s pretty much the end of the year for us...

Details

Published: Tuesday, 20 December 2016 09:08

We are closing the office at midday on Friday 23 December, Margaret will be back on Wednesday 4 January and I’ll be back on Monday 9 January, as we always say, in a January-kind-of-way. 

All of our staff, members of the Committee of Management and President Andrew Spooner, now happily at Georges River, wish you a fun, love and family-filled Xmas and New Year and some even better HR in 2017 as we wonder what lies ahead.

Finally in news just arrived in my inbox (clearly a quicker response than Monica Barone can manage) Unions NSW has just emailed affiliates that “the Industrial Relations Commission of NSW will remain in the Chief Secretary’s Building, 47 Bridge Street, Sydney New South Wales 2000 until further notice as the accommodation at 66 Goulburn Street was deemed inadequate.” 

Well, whoever was responsible for the decision to move the Commission to the “inadequate” accommodation back in June must feel like a Right Dick.