Here comes the knockout punch

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Published: Friday, 18 December 2015 10:23

Today Premier Mike Baird will bring out the knockout punch. Revealed exclusively in this morning’s Sydney Morning Herald, the government will proceed to amalgamate the 43 metropolitan Sydney councils to 25 - consistent with the recommendations of the Independent Review Panel and IPART.

At this stage it is less clear what is proposed for regional New South Wales. It was always expected that the Premier would go hard on the metropolitan area because it had always been a smart option back to the days of the Sproat’s Report in 2002 - even though a succession of Labor governments lacked the resolve to do anything useful about it.

But the coalition government is conflicted in the bush because councils are significant local employers. It will be hard for Mike Baird and his Liberal/National government to bag Bob Carr and his successors for lacking the bollocks to do something about rationalising the broke councils if they can’t find their own pair to modernise local government in the bush.

According to the Herald, the announcement will target 150,000 as a suitable size for a metropolitan local government. Essentially that means:

• Hornsby merges with Ku-ring-gai
• Pittwater takes the northern part of Warringah while Manly takes the rest and some of Mosman
• North Sydney gets the rest of Mosman
• Ryde, Lane Cove and Hunters Hill will be combined
• Waverley and Randwick have agreed to merge
• Botany Bay will merge with Rockdale
• Marrickville, Leichardt and Ashfield have agreed to merge
• So have Burwood, Auburn and Canada Bay
• Strathfield will have to choose and will choose Burwood and Canada Bay because their genteel ratepayers would prefer to keep away from the Kardashians and the conflicted councillors/developers on Auburn but you can’t always get what you want
• Parramatta will expand and that will be the end of Holroyd (and the Hills might get a bit too) and
• Bankstown and Canterbury will be forced to merge

This morning the Minister for Local Government Paul Toole will conduct a teleconference with mayors and later in the day maps will be published for certainty about proposed boundaries. We can send you a link to the information next week.

All of these boundary changes will be introduced under the provisions of the current Local Government Act. The Boundaries Commission will be revived to conduct public hearings before any amalgamations proceed. This will roll out through most of 2016.

As will the development of a new Local Government Act and the Government has announced that it may need to delay the September elections while that happens. For those of us hoping to see some sacked councillors (especially at North Sydney and mid-Western, just to name two) we will have to wait and continue to deal with what we’ve got.

The Government will also announce more money as financial incentives for those which amalgamate-increasing from $550 million to $700 million.

And all of this will be underpinned by the government’s continuing commitment that employees will remain under the Local Government State Award or any existing enterprise agreement and the protections available against compulsory redundancy for three years in the Act.

At this stage, it appears that the announcement will not trigger a “proposal period”, so members should pressure their councils to sign up to the commitment to provide five years protection with the individual letter to employees using the template in our November issue. Individual letters is the preferred option of the three local government unions.

HR awards issue out on Tuesday

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Published: Thursday, 17 December 2015 11:28

More nominations than we could cope with. More than ever, in fact.

The winners of the worst HR in Local Government Award will be announced in the special issue on Tuesday afternoon.

IRC survives to be dismantled another day

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Published: Thursday, 17 December 2015 11:26

We fearlessly predicted in the October issue of depaNews that the IRC would be dismantled before the end of the year and in the November issue that it was likely to be announced on 1 December. That was the date of the swearing out of DP Rod Harrison in Newcastle and the Treasurer and Minister for Industrial Relations Gladys Berejiklian, unusually, was going. This was a rumour with sufficient momentum, and provided from three different reliable sources, that it had to be true.

But The Hon Gladys didn’t make it to Newcastle for the swearing out of DP Harrison on 1 December and there was no announcement made.

The rumour is strong and continues. We suspect an announcement is delayed only because it’s caught up in issues about exit strategies. Or strategy. It will happen and may still happen this year. It will certainly happen next year unless something dramatically changes.

It would help if the Minister for Industrial Relations came out and denied it. A nice clear and unequivocal statement would do it. That and a reassurance that the IRC and its good work will be properly resourced and continue untouched forever.

But some good news too - use this template if your Council wants to give you five years protection against forced redundancy

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Published: Wednesday, 25 November 2015 15:52

There has been a developing level of support in the industry for providing more than the three years protection against forced redundancy provided in section 354F of the Local Government Act in the case of amalgamation, boundary change, transfer to another local government area etc.

While some councils have signed Memoranda of Understanding with the unions there are questions of enforcing rights under such an arrangement. While it provides a clear indication of what the understanding was at a particular moment in time, it’s hard to find a tribunal to enforce it.

Enterprise Agreements can run only for three years, so that’s not a useful avenue but there is a better way.

It is possible for councils to agree to change your conditions of employment and provide five years of protection. They do this by offering you this as a change your employment contract/conditions of employment with individual letters to each employee. You agree to the change and the deal is done. You know how contracts work - offer, acceptance, contract made.

So, our barrister prepared a suitable template which is being used at a number of councils at the moment and has even been promoted subsequently by the USU - albeit with a minor change. The three unions are now suggesting that this is the preferred approach to provide improved protection because it is capable of being taken to a tribunal and enforced.

Here is a link to the document and you can start hassling your Council now.

Good luck to you all in December.

Time is ticking away

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Published: Tuesday, 24 November 2015 12:45

Tick, tick, tick. Time is running out for three significant announcements that can have an overwhelming effect on local government, conditions of employment in the industry and careers. We dealt with two of them in the October issue of depaNews.

1. Fit for the Future

Develop some criteria that you say covers all considerations, drop a few of them off, let IPART change them - including making up a test of “global city” for Sydney, so you can nail Clover - and set a tight deadline for responses to the IPART recommendations of 18 November.

Expectations are that the Premier will do something dramatic on 1 December - or some time very soon after that.

If you would like to read an insightful and incisive review of where we are on this now - without any vested interest and with total impartiality - here is the Editorial from yesterday's Sydney Morning Herald. Recommended reading.

2. Industrial Relations Commission - to be or not to be

Sometimes you have to publish a rumour if it comes from a variety of reliable sources and where all you really want is the Government to deny it. Last month we published our expectation that the NSW Government would shortly announce that the judicial functions of the Industrial Relations Commission would be transferred to the Supreme Court and the dispute resolution and related functions would be slid into NCAT.

We made it clear that wasn’t what we wanted, we wanted the august and venerable century old institution to live forever, the Government to deny the allegation and commit to properly resourcing it.

Workforce NSW led with the story in its 6 November issue and said, amongst other things, that the Hon Gladys “has repeatedly failed to put the issue to bed”. And quoted her responses when they had asked like “the Government is committed to a strong IR system in the State and has a proud record in this area” and “NSW is enjoying historically low levels of days lost to strike action”. Opaque, moi?

In December, popular and respected Deputy President of the IRC Rod Harrison retires and on 1 December will be “sworn out” in Newcastle and, somewhat to everyone’s surprise, the Treasurer/IR Minister will be attending. Notwithstanding the fact that DP Harrison, for his contribution to good industrial relations in Newcastle over the decades really deserves the entire Cabinet chairing him around Newcastle while the Premier and Deputy Premier frolic alongside throwing petals in his path, the attendance of the Treasurer/IR Minister is unusual.

Expectations are high that the evasion will end and an announcement about the Commission’s future will be made.

We hope we are proved wrong.

3. 2015 Worst HR Awards to be announced in December

Yes, the Golden Turd can make or break HR professionals (sic) and even Directors of Corporate Services and GMs, too.

How has the industry gone with restructuring, job evaluation, treating its “human capital” fairly for better productivity, looking after work: life balance with flexible working arrangements, or living up to its own boasting about cutting edge employment practices and being an “employer of choice”.

Or even the things that shouldn’t be difficult, like complying with their Award obligations to provide part-time work for parents returning to work?

And what about last year’s nominees, have they learned anything?

Tick, tick, tick, those who have done the wrong thing, or don’t understand what it is to do it, are getting nervous.

Any sweaty palms in HR at your Council?

We file section 106 for the unfair sacking at Mid-Western

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Published: Wednesday, 28 October 2015 10:03

Sacked without good reason, sacked without any reason, sacked without the opportunity to put up a defence and sacked during an ICAC investigation where the majority group of councillors wanted the director of planning’s head on a plate. Dutifully that head, and the head of another director, were delivered by the GM in the first sackings without explanation in the second level of management in local government’s history.

An inglorious historical first for GM Brad Cam. Something that won’t appear on his CV, you can be sure.

As foreshadowed in the last issue, depa believes that the standard contract is unfair to senior staff employees. And the circumstances at Mid-Western leave much to be desired in terms of fair treatment.

The section 106 application came on before the Industrial Registrar this morning.

The employers had filed a notice to strike out the application for want of jurisdiction and other issues, and this will be referred to the President to be allocated for determination next month.

NSW Government to shut down Industrial Relations Commission

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Published: Wednesday, 28 October 2015 10:00

Two years ago the O’Farrell Government reviewed and consolidated a number of tribunals into an expanded NSW Civil and Administrative Tribunal. At the time they contemplated the possibility of also folding in the Industrial Relations Commission but, in the face of united opposition by both employer organisations and unions, decided not to do so.

The IRC is currently a shadow of its former self. Understaffed, most awards now operating in the Fair Work Commission, Crown employees restricted by the 2.5% public sector pay policy, the unnecessary loss of good talent and a reduced and ageing workforce, the Commission has shrunk and the Government has been reluctant to make permanent appointments to replace them. Bit of a shame they got rid of that talent, looking back.

The Court of Arbitration was established in New South Wales by the Industrial Relations Act 1901, the Industrial Court was established by the Industrial Disputes Act of 1908 and the Court of Industrial Arbitration was established by the Industrial Arbitration Act 1912. These were the antecedents of our current Industrial Relations Commission and it has performed these roles continuously ever since.

Section 19 of the Industrial Relations Act requires the Commission to review all of its Awards to ensure that they are current and not old-fashioned or obsolete. On 14 October, 60 or so State Awards were listed for consideration to ensure that they were up-to-date. The Local Government State Award and the Sydney City Council Award, both made by the current President of the IRC Justice Walton last year, were also reviewed. So we were there, defending our turf.

It was standing room only in the Commission for the captive remnants of what had been the pre-eminent industrial tribunal nationally. But, with virtually all but Crown employees and local government now wrapped up in the Fair Work Commission, many of those present were conscious of the rumour, from multiple and varied sources, that the Government had already decided that the historic and esteemed Commission would be split in two - with its judicial role going off to the Supreme Court and the non-judicial functions being blended into NCAT.

And, conscious of the rumour, it was observed that this was a great housekeeping opportunity for the Commission to clean up before the move, to ensure before handing over that everything was up-to-date and modern and, similarly, it would be a good opportunity for the Government to announce that the move was going to happen, because all of the organisations involved in the NSW jurisdiction were present, in one form or another, in the proceedings and would be slow to march on Parliament house to complain.

But the Government sat quietly and it’s hard to know whether the handful of remaining members of the Commission (and in a month there will be only one judicial member left and that is the President) were even aware of the rumour themselves. After all, who would be game to ask them?

But a rumour from so many disparate sources, and reading between the lines, we’re pretty damn sure that later in the year this will be announced and the glorious venerable days of the NSW Commission will sadly be over.

The Supreme Court doesn’t handle industrial matters although there are couple of judges in New South Wales with industrial relations experience who could do so. But, if the Government goes ahead and does this, we're in trouble in local government - the awards and enterprise agreements of the industry have always been awards and agreements of the NSW IRC. The IRC has been (usually) the most user-friendly of the industrial tribunals and one not afraid to make precedents that have, in turn, flowed into the Federal system.

This will be a terrible day. And unless we are very much mistaken, that day will come by the end of the year.

Anyone there?

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Published: Wednesday, 28 October 2015 09:58

The publication of the September issue of depaNews was followed some hours later by the resignation of the CEO of the Office of Local Government, Marcia Doheny, less than six months into the job. Coincidence only, we are sure.

We have been very critical of OLG and the Minister for their lack of action. OLG has been nothing more than an organisation that keeps notes of bad behaviour by councillors and apparently keeps them somewhere, and the Minister, having issued, for example, a Performance Improvement Order at North Sydney which failed, really had no backup plan.

Now OLG has an acting CEO from outside the industry, has lost key staff to Premier and Cabinet where the real action is coordinated with the reform agenda and has advertised an office full of vacancies in the last few weeks.

All that means that if it were ever going to do something, to remedy its dysfunctionality and incapacity to use its resources for constructive purposes, it won’t be doing it this year.

Mixed reception to IPART Report

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Published: Wednesday, 28 October 2015 09:50

When the Premier announced the release of the IPART report on Fit for the Future on 20 October, councils were given a deadline of 18 November to respond. Our email to members the following day urged you all to relax but noted that there were plenty of opportunities for panic here.

Hysteria, the desperate and the dateless, musical chairs, nothing to worry about and waiting for a miracle pretty much summarises the range of the industry’s response.

Like a call for “last drinks” at a drunken event for desperate singles, those who didn’t have their arm around someone already, or an eye on a potential partner, started to look around at what was left. Gee, if you amalgamate with Auburn does the Deputy Mayor come too? If you amalgamate with North Sydney can you do it and remove the capacity of the electorate to make a practical joke of it when they vote for the mayor? If you amalgamate with Mid-Western can you wait until ICAC has woken up and nailed some "persons of interest"?

There is no doubt that the Government is committed to the largest and most dramatic shakeup of local government in its history. Sick of decades of encouragement and hoping for the best, the Government has a firm commitment to a process that had an independent Review with its own recommendations, then developed its own essential criteria to determine pass or fail, then forwarded those criteria and council responses to IPART, that is the Independent Prices and Regulatory Authority, for IPART to analyse councils’ responses to both the independent review panel’s recommendations and the fitness criteria. And now IPART has done precisely what the Government has asked it to.

Time is running out. The Government won’t now backtrack and start again or retrace its steps. They’ve put themselves in a position where they really can’t. Their approach has been logical, consultative, broadcast with sufficient warning for their intention to be clear and the game is now on.

And it’s about time. As our focus is primarily about protecting and improving working conditions in local government, anything that removes poverty-struck councils which can’t afford to pay market rates to replace staff, or to have sufficient staff to properly cover leave and accommodate part-time returns for parents or to send people to training and all that, has to be a good thing.

The Premier’s bold boast at the LGNSW Annual Conference that many of the councillors wouldn’t be there next year may have got up their noses, but realistically, how many councillors do you know that you would actually employ yourself? Bugger all, or none?

We’ve all seen more than enough bad behaviour by councillors. Both generally and in the current extraordinary circumstances of unprecedented bullying and harassing general managers, senior staff and others doing no more than trying to get the job done, to think that a good dramatic culling of the talent is grossly overdue.

And Governments understand that with hindsight, they are more likely to regret not going hard enough than having gone too hard.

How will employees fare as the dross is culled?

Every employee in the industry should have a look at the employment protections provided in Part 6 of the Local Government Act. Here is a link, just to make it easier.

The heading of Part 6, “Arrangements for Council staff affected by the constitution, amalgamation or alteration of council areas”, should be enough. It’s clear that the protections are there for every non-senior staff employee, regardless of whether a Council is joined together with another Council, pieces of one Council are hived off to another, or where an entirely new council is constructed from parts of others or whatever.

The eight sections of Part 6 set out these arrangements.

For the time-poor, sections 354C and 354F are the critical ones that provide the protections against redundancy. Here they are:

354C No forced redundancy of affected staff members during proposal period

The employment of a member of staff of a council that is affected by a proposal (other than of a senior staff member) must not be terminated, without the staff member’s agreement, during the proposal period on the ground of redundancy.

354F No forced redundancy of non-senior staff members for 3 years after transfer

If a staff transfer occurs, the employment of:

(a) a transferred staff member, and

(b) in the case of a boundary alteration:

(i) a remaining staff member of the transferor council, and

(ii) an existing staff member of the transferee council, other than a senior staff member, must not be terminated, without the staff member’s agreement, within 3 years after the transfer day on the ground of redundancy arising from the staff transfer.

Once you’ve read those critical sections, you can choose one of the illustrations at the beginning of this article. Hint, choose Alfred E Neuman.

Unless you are a senior staff member, or a GM, and then you have a choice of five. (But we are doing something about ensuring that senior staff members effectively made redundant in any amalgamation process will have that 38 week payment taxed as a redundancy.)

Better than Nostradamus

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Published: Wednesday, 30 September 2015 13:14

We got it right last month when we picked that the Minister for Local government was playing local government reform a number of moves ahead, like a good chess player, so that communities would welcome the sacking of councils with badly behaving councillors. We concluded that issue of depaNews by predicting the following for “Next month”:

Probably more councillors behaving badly, maybe some ICAC action at last on the appalling things happening at Mid-Western, probably more inaction from people we rely upon to properly regulate the industry and maybe one or two good news stories as well - certainly, one absolute ripper...

Well, how did we go?

More Councillors behaving badly

Tick. It’s hard to know where to start and where to finish. North Sydney Mayor Jilly Gibson launched herself into local rag the Mosman Daily misrepresenting herself and her partner as victims of a council resolution and a solicitor’s letter to the partner requiring that he improve his behaviour at council meetings.

Notorious for shouting interjections and the Mayor equally notorious for not dealing with this unruly behaviour because he is her cheer squad, his behaviour includes personal and misogynous observations to woman councillors. And, of course, the standard allegations and attacks on the GM for things that are not the GM’s responsibility. Why spoil a good story (as far as the Mosman Daily goes) with the truth.

Clearly it suits the Minister to have these blowflies spoiling the picnic and laying eggs in everyone else’s food.

Rather than just list a series of councils it’s enough to note that Local Government NSW has taken the unprecedented step in their Weekly Circular of 11 September to remind their members that they have obligations to staff under the Work Health and Safety Act.

The LGNSW advice coincides with unprecedented harassment and bullying by councillors of general managers and other senior staff. That LGNSW needs to remind councillors that, just as the law applies to company directors, councillors have obligations and can be brought to account as well. How could it be any other way and what does it say about some of those boofhead councillors out there that LGNSW needs to get advice from a Senior Counsel and put it in their General Circular?

All councillors, and even their cheer squads, goons and minders need to be a bit more careful.

LGNSW might have recognised and responded to this unprecedented level of bullying and bad behaviour but even they could not have anticipated what happened this month at Mid-Western.