Mid Coast salary system dispute arbitrated

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Published: Thursday, 16 November 2023 13:32

This is the dispute that earned MidCoast our prestigious Worst HR in Local Government Award in 2022, it continued in attempts at conciliation and a six-month trial and went into formal arbitration in the Industrial Relations Commission in Newcastle on 7 and 8 November.

The dispute, to which the three local government unions and the ETU have all been made parties, is over the imposition of a new salary system with different progression arrangements that disadvantage existing staff – moving the goalposts during the game.

This is accompanied by a legal argument to unpick the protections available in clause 8(xii) of the Award that allow employees to remain on their existing salary system if a new salary system disadvantages them.

The Council’s original argument picked up on the use of the word “structure” in clause 8(xii) and argued if they didn’t change the structure, no one could be disadvantaged. In response, because we have a shared interest in protecting the integrity of salary systems and how they can be changed only by avoiding disadvantage, LGNSW and the unions in the 2023 Award negotiations agreed to remove the word “structure” to remove that argument. They then found another argument, unpicking the wording out of the context of its intention, again.

Both sides have swapped settlement offers and the dispute resumes in the IRC in Parramatta on 13 December. At the conclusion of proceedings in Newcastle Commissioner Webster recommended that the parties try to reach agreement in the meantime.

OLG continues the paragraph 20 cover-up

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Published: Thursday, 16 November 2023 13:32

We all make mistakes, we teach our kids that it’s better to own up, apologise and fix the problem than to deny it. We try to live that ourselves but we’ve been banging our heads against the wall with the Office of Local Government since 5 February 2021 when their former CEO Tim Hurst got this paragraph wrong in findings against a former councillor on Wagga Wagga Council:

Hurst was wrong, and we’ve been pursuing that mistake ever since. We’ve identified misconduct from March 2013 that OLG ignored, they refused access to documents, and we’ve run two unsuccessful cases in NCAT looking for a remedy. But as a karmic reward (or extraordinary coincidence) when OLG prosecuted the former councillor in NCAT this year they included two examples of misconduct from 14 and 18 September 2020 and were able to have the miscreant banned from public office for five years.

Those two examples of misconduct predated Hurst’s paragraph 20.

We wondered whether OLG was throwing us a lifeline, or scoring an own goal, or it was a karmic reward but their own prosecution demonstrated Hurst got it wrong. It could also have been a mistake, but vigorously defended anyway.

We wrote to the current Executive Director, Local Government, DPIE Brett Whitworth on 19 June and here is our latest follow-up sent on 10 October 2023. No more follow-ups, we’re not even asking for the sacking of those who were complicit in the “mistake”, covering it up at the time, nor those who were complicit subsequently.

The Supreme Court beckons.

LGNSW stand-off with the Unions on senior staff transitional arrangements

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Published: Thursday, 16 November 2023 13:32

As a quick reminder, In October 2021 LGNSW resolved to no longer support “no reason” terminations and contracts and form a consensus with the three unions to press the Government to move the second layer of management back under the Award and provide access to unfair dismissals. The worst of the reactionaries rose up like barbarians at the gate but at a Special Conference of LGNSW on March 2022, their entreaties were rejected and the position reaffirmed.

Then, dawdle, dawdle, dawdle, as the Office of Local Government and/or a Minister or two treated this as a lower priority than we would have liked, there was a change of government this year and it’s now accepted that the legislative changes necessary to end the concept of “senior staff” for everyone but the GM, will happen early next year.

Section 340 of the Local Government Act 1993 needs to be deleted and this was the only recommendation specific to local government in the recent Boland/Booth Review of the Industrial Relations Act and the IRC. It will be accompanied by an amendment to the IR Act to lift the maximum remuneration level preventing access to the unfair dismissals jurisdiction. That’s all agreed between us.

The only remaining issue outstanding is the transitional arrangements for senior staff once the Act is changed.

Two ICAC Investigations, Mid-Western and then the former Canterbury noted it was unacceptable to continue “no reason” termination contracts because they were a corruption risk with councillors threatening GM’s (more often than you might think) that they needed to sack the Director of Planning (in particular) or the Council would sack them. And made recommendations to that effect.

We know the contracts are fundamentally unfair anyway, because there is no recourse for good and capable employees who are sacked for “no reason”. This regularly happens after local government elections when the politics of a Council can change, and good GM’s and people get sacked.

We met last with LGNSW on 26 September and were unable to bridge the gap between their position on the legality of the contracts, and the unions’ position that the contracts are shown to be unfair and a corruption risk, and the sooner we get rid of them the better. At the moment, having the ethical and moral higher ground isn’t sufficiently persuasive.

Given our historic capacity to reach agreement with the employers over the decades on many, many other difficult issues this shouldn’t be impossible, but an argument based solely on the law, ignores the herd of elephants in the room.

They say that the contracts were voluntarily and lawfully entered into (it’s a standard contract, there is no option) and should continue in operation until their termination. We think that argument is legally flawed anyway because if you wanted the job, the standard contract was the gun at your head, hardly freely entered into.

In an industry where the historic consensus needs to be consistent, it’s impossible to argue that contracts we have all agreed are unacceptable should continue any longer than is necessary.

How can the contracts be unacceptable, so we are removing them, but simultaneously acceptable enough legally that we continue the current ones?

We’ll meet again, we have time on our side with the legislative changes looking like early next year, but the LGNSW view is like Bunnings continuing to sell Round up, when everyone knows it’s a killer. The argument that it is lawful - like slavery once was - doesn’t cut it.

ICAC Operation Galley nails three notorious crooks

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Published: Friday, 01 September 2023 14:58

The ICAC on 30 August delivered the heads of three notorious councillors on a silver plate, with findings of “serious corrupt conduct,” and recommendations to the Director of Public Prosecutions to consider criminal charges that could see the miscreants jailed.

There could be no greater relief nor celebration for a succession of previous Directors of Planning at Georges River and the former Hurstville, current senior staff and former general managers and any unfortunate planner who found themselves on the wrong side of these deeply self-interested, dishonest and corrupt boofheads. This notorious threesome had poisoned confidence in development, and had been on the ICAC’s radar for more than a decade.

Chinese developers (one also a real estate agent) made payments to cover the councillors’ travel expenses, airfares, meals and luxury transfers on trips to China, some of which were known as “boys’ weekends,” where their hosts provided sex workers as well. The Commission has recommended that the DPP also consider charges against those developers.

ICAC found the three former councillors had engaged in serious corrupt conduct when they accepted trips to China, and tens of thousands of dollars, in return for supporting two large apartment developments in Hurstville. They were former Hurstville and Georges River councillors Vince Badalati (an ALP councillor), Con Hindi (a Liberal councillor, short for Constantine, and not Con Man, or Convict - yet) and a former Hurstville councillor Philip Ransom. The ICAC also found Hindi’s wife Mireille, gave false and misleading evidence.

The investigation found Badalati and Ransom were frequent visitors to China and Hong Kong between 2007 and 2018, a history so blatant that it’s hard to understand how it continued so long.

Hindi is no stranger to depaNews. As a councillor on the former Hurstville Council he had bullied and harassed planning staff and a succession of Directors of Planning, and on one occasion, when he objected to a report from the Director of Planning at the time to the Council recommending against what were claimed to be additions to a property owned by Hindi, but were essentially a demolition and rebuild, took defamation action against the Director.

It rolled on for some time, it was intended to intimidate and bully and but the vexatious defamation action was unsustainable. Hindi agreed to discontinue the claim, agreed not to commence any action arising out of the publication and provided a letter to the Director confirming with 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.

Operation Galley found Hindi liked to keep it in the family. Amongst a variety of failures to disclose pecuniary interests, Hindi had failed to disclose his pecuniary interest in one of the sites through his wife’s interest in the development. Mireille Hindi, another real estate agent, was up for $500,000 commission from the sale of the $35 million site. The ICAC found that she had also given misleading evidence - not just implausible but “not capable of belief”- and had attempted to hide her involvement and her and her husband’s conflicts of interest by identifying her son on the Buyers Agency Agreement. She said it was a mistake, the ICAC disagreed and said her response was “fanciful”.

The ICAC found neither were credible witnesses, lied on several occasions, Hindi was “argumentative and rude”, much of his evidence was “not merely improbable but plainly nonsense”, and he “frequently made speeches that had little to do with the questions asked”.

He must have thought he was still standing on the floor of the Council trying to browbeat planners, he’d been doing that for years.

In June 2022 we published “What a refreshing change. A crook confesses at ICAC” after Badalati had given evidence to the Commission. Hurstville and Kogarah councils had merged to create Georges River in May 2016. They brought two high profile major players together - one Liberal, Hindi, and one ALP, Badalati - happy to help developers by overriding planning proposals from Council staff, and in doing so, they created an environment hostile to staff, particularly senior staff.

This explains why Georges River spent over $200,000 in 2019/20 on code of conduct complaints, more than $2.5 million to the date of that issue (22 June 2022) on legal costs with Operation Galley then into its third year of investigation, and another one $1.2 million budgeted 2022/2023 in anticipation of continuing costs.

ICAC investigations take far too long and need better resourcing. They can be slow and grinding affairs, but as the first witness, former Mayor Badalati confessed that on two occasions a developer had provided him with a bag of cash, once containing $70,000 and on the second occasion, $100,000. And, just to disprove the old maxim that there’s honour among thieves, he confessed that Hindi was there at the time and he received the same payments!

Badalati had taken defamation action against the Herald in 2019 when they published that he had accepted flights and accommodation from Chinese developers, and claimed he had paid for those himself. It was settled when the Herald paid him $100,000 in damages and legal costs, and published an apology. But while he was clearing his conscience and trying to balance the interests of his family watching this all rollout, he confessed that the trips had been paid for by the same developer who had given him $170,000. He agreed this was fraud.

Hindi also had taken defamation action against the Herald and received $65,000 in damages and his costs. More fraud.

The developer referred to them both as “Fat” and “Middle East”, accurate nicknames for Badalati and Hindi respectively from a developer who obviously thought “Dumb and Dumber” was already taken.

The photoshopped image we used at the start of this article was also used in the June 2022 issue, and while we love having fun with photoshopping, we’d clearly underestimated with those piles of $100 notes just how much cash this corrupt threesome was sharing.

But the ICAC found images on the phone of a developer that provide a proper perspective. We will spare you the images of the sex workers and the two daggy old white men, on a “boys’ weekend”, but how about this new take on money-laundering:

There are 11 recommendations to try to better manage corruption risks in the relationship between councillors and staff but none better than keeping councillors right out of any operational issues, planning or otherwise. And ensuring that a councillor’s role is limited to the development of planning instruments, by professional staff, who are not being bullied and harassed by them.

The report also notes on p159 that “The Keller Reviewer review on councillor conduct accountability in NSW recommended mandatory training for Councillors. The Commission supports education that will improve Council governance and support ethical decision-making.”

The Keller Review made more than 40 recommendations that were embraced by a previous Minister for Local Government - all but the recommendation for the establishment of a specific tribunal. It’s important now for the current Minister, the Hon Ron Hoenig, to continue that commitment and move on it as a matter of priority.

There are two other things for the new Minister to move on as a matter of priority.

The first is the undeniable need for significant improvements in the funding of the Office of Local Government to speed up investigations and conduct them properly (although it is unlikely even OLG at their worst wouldn’t have found here “the absence of any prior offending... and the lack of previous incidents of misconduct”), to be available and able to intervene in councils and straighten out behavioural issues before they get out of control and become a reliable and authoritative regulator.

The Minister was less than enthusiastic about supporting the additional funding being sought to do those things in the recent meeting of the Parliamentary Accounts Committee, but the OLG will continue to be an ineffective shell in the absence of funding to allow a flush of new people to replace those on the way out.

And second, the industry consensus on managing corruption risk by returning managerial positions which are now “senior staff” to be covered by the award and relevant Enterprise Agreements, and access to unfair dismissal in the Industrial Relations Commission.  “No reason” termination has been specifically identified as unacceptable in two previous investigations (into Mid-Western and the former Canterbury Council) and making these employment changes will reduce the practice of councillors trying to intimidate GM’s to sack the Director of Planning, or the Council will sack them - something that occurs far too frequently.

What’s the fuss? It’s only a bloody consultative committee

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Published: Tuesday, 01 August 2023 11:49

No one should be surprised that an organisation like depa, focused on fairness and justice, has embraced the Yes vote for the impending referendum.

In 1991, as part of a national agenda on award restructuring, we were obliged to set up consultative committees at each Council when we made the Local Government State Award. lt seemed a bold step, particularly for an industry which at that time wasn’t very consultative, nor respectful of the contribution that its employees could make to how things could work better.

Some of the old Town and Shire Clerks (as they were called prior to the 1993 Act), attacked it as inappropriate, the death of their managerial prerogative, an unwanted obligation to communicate with their workforce when they believed they had nothing to offer.

But it wasn’t to be a decision-making body. It could only make recommendations. These people were uninformed and easily spooked. Now, a bit over 30 years later, it still operates that way.

How did we ever do without it? How could opening communication and the sharing of opinions and ideas with workers historically denied access to management for so long, not be a logical step.

Challenging for some it may have been, but it was a great achievement. We still believe it critical to be represented on that committee in each Council.

The uninformed got it wrong in 1991, they can’t get this wrong as well.

The question itself is innocuous:

“A Proposed Law: to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Do you approve this proposed alteration?”

The Voice will make recommendations to Government, it has no other power. It’s only advisory, the Government still makes the decisions. The depa Committee of Management voted unanimously for us to support the Yes campaign - one member observed they were “proud to be part of an organisation that has the courage to do what is obviously the right thing”.

How could we do anything else?

And we have First Nations members who deserve our support. Let’s not disappoint them.

NCAT disqualifies former Wagga Wagga councillor from holding civic office

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Published: Monday, 26 June 2023 12:29

There’s a lot of history in this for us, both in relation to the former councillor, and the Office of Local Government.

On 19 June, NCAT decided to disqualify former Councillor Funnell from holding civic office for two years. OLG made the application, we had attempted to intervene in support of the OLG action, which they opposed - something they seem duty-bound to do any time we raise anything.

It’s good to see a serial pest finally disqualified but it is reasonable to wonder why the prosecution was limited to two instances of misconduct when OLG would have had at least 20 to choose from, and why they would propose only a two year penalty, meaning he couldn’t stand for election in the next local government elections, when the multitude and frequency of complaints would warrant longer. And he had indicated he wasn’t interested in standing at the next election anyway, and didn’t contest the penalty...

But, there is more to this. The two examples of misconduct were in 2020, and where Tim Hurst, former director of OLG had famously said in an order about the same person that there had not been “any prior offending or post event conduct in the past two years and the lack of previous incidents of misconduct”.  Really?

Here is a letter we sent to the current Executive Director, Local Government, DPIE, Brett Whitworth, on 19 June, with some important questions.

We will publish a full report in our July issue.

Department of Planning creates its own Sagittarius A

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Published: Monday, 26 June 2023 12:29

Planning Ministers and the Department of Planning (or whatever name it’s known as over the years) has always had a role in making life difficult in Local Government. The introduction of private certification, accreditation of council employees, creating parallel accountabilities,the fantasy about standard model codes is and templates hammered over local government areas, and planning and environmental obligations without consideration of whether one size really does fit all, but the Planning Portal? Really?

Whose ludicrous idea was it to set up an arrangement that is currently, from reports from frustrated members across the state, meaning things that could have been done previously in 15 or 20 minutes can now take three hours?

Churning work, creating backlogs, irritating applicants, frustrating Council staff who want local planning instruments taking into consideration local conditions and practices, not standard conditions that frustrate everyone, sucking the joy out of planning and the hopes and dreams of Council planners, disappearing into the black hole.

And the State gets the fees! And the control.

How is your experience of the Portal?

If you’re wondering what portal, it’s the ****ing Portal, just to be clear. That’s how any member who rings us describes it.

Please let us know, don’t write the great Australian novel, just some summaries and hard-hitting points, so we have some broad information with which to pursue Government.

Quo Vadis OLG?

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Published: Monday, 26 June 2023 12:29

What, with the Award and all, and a new Government more accessible and more philosophically aligned to unions, the Office of Local Government’s Employment Reference Group has not met for months. That doesn’t mean that the things that are important to the local government unions and the employers are not being dealt with, just that they’re not being dealt with in the frustrating, obtuse, sloth-like, dawdling manner they have been over the last almost 2 years since the industry consensus on getting rid of senior staff below the level of GM was established.

This has been an issue we’ve argued about for at least seven years when OLG told us that if we can get a consensus with the employers about what to do, then they will present it to Government. It wasn’t an encouragement, it was a cruel hoax, put to us by someone who didn’t believe a consensus was possible. So then, when we did, they dawdled.

We are not the only ones to be disappointed with the OLG and its indifference, bordering on hostility, to the historic consensus to provide fair employment for local government senior staff by putting them all back on the Award, nor their embarrassing statistics about the how long it takes conducting investigations, particularly those against councillor’s behaving badly, nor the secrecy of their processes and their refusal to be transparent, nor their preference to cover up rather than admit error, and fix it.

The NSW Audit Office on 25 May released a report on the effectiveness of OLG, finding OLG:

• does not conduct effective, proactive monitoring to enable timely risk-based responses to council performance and compliance issues,
• has not clearly defined and communicated its regulatory role to ensure that its priorities are well understood,
• does not routinely review the results of its regulatory activities to improve its approaches, and
• lacks an adequate framework to define, measure and report on the OLG’s performance, limiting transparency and its accountability.

Wow, tell us what you really think!

If you’re interested, here is the report: https://www.audit.nsw.gov.au/our-work/reports/regulation-and-monitoring-of-local-government-0

A new NSW Government, and some new Ministers to make our lives and work better - yes, hope does spring eternal

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Published: Monday, 26 June 2023 12:29

The election of a Labor government, not quite a majority but with a working majority with assistance from Independents and the Greens, means we can reasonably expect a Minister for Local Government with more of an interest in fair employment practices in the industry, and an Industrial Relations Minister prepared to review the Industrial Relations Act, and the NSW Industrial Relations Commission to make it more balanced, objective, and effective.

UnionsNSW has been critical of appointments made to the IRC by the former Coalition Government and on the day after the election result described the NSW Commission as “hamstrung and biased”. Clearly there will be pressure to make some changes and the Government has committed to do so.

(Historic note, industrial tribunals work better if there is a balance between members from the employers’ side and members from the unions’ side. Some of the best members of the Commission over the decades have been employer representatives who have risen to the challenge of dealing with equity and fairness. It goes without saying that representatives from the union side understand that already. The current Commission has one Chief Commissioner and five Commissioners, only one of whom could broadly be described as having had experience with the union side. Time for a change.)

The new Industrial Relations and Work Health and Safety Minister is the Hon Sophie Cotsis, member for Canterbury. The Minister was formerly an official of UnionsNSW, a union official for the Liquor, Hospitality and Miscellaneous Workers Union, a political advisor to former Treasurer Michael Costa, and then a two-year stint in a private sector infrastructure company before starting her parliamentary career in 2010. A BA from Macquarie and a Master of Legal Studies from UTS. We like Sophie, (if we may be so bold) she has already established a process to review the NSW Industrial Relations Act, we’ve submitted some proposed legislative changes, and we expect to be meeting in the next couple of months.

The new Local Government Minister is the Hon Ron Hoenig. A hugely experienced councillor, Mayor of Botany for 31 years while practising as a barrister and working for the Public Defender. He became the member for Heffron in 2012. A committed local government true believer, better company than most when we had a short stint together on an advisory committee established by a former local government Minister Ernie Page, and we look forward to the new Minister putting a rocket up the Office of Local Government and flushing out the blockages that have delayed introduction of fair employment arrangements for senior staff.

Do you have to be a union member to get the increases and benefits?

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Published: Monday, 26 June 2023 12:29

The Little Red Hen was a story written in the late 19^th century in an anthropomorphic farmyard where the Little Red Hen asks her friends to help plant the wheat, help cut the wheat, help thresh the wheat, help take the wheat to the mill and help make the flour into bread. They all refuse, the Duck, the Cat, and the Dog all say, “not I”, and the Little Red Hen says, “then I will”.

She then made and baked the bread and said, “who will eat this bread” and her lazy freeloading friends all said, “I will”. And the Little Red Hen said “no, no! I will do that”. And she did.

It’s a morality tale but it wouldn’t be in depaNews if we didn’t see the moral of all you good union members paying fees to fund the negotiation of a new award, and your workplace “friends” who don’t do so, still expecting to share the benefits.

When the Award is negotiated every three years, the unions always argue that it should be union members only. The unions negotiate it, growing the wheat, threshing it, making the bread etc, and those who aren’t union members should pay something to share in the improvements negotiated effectively on their behalf. A fee equivalent to the membership fee to the unions who have negotiated this, for example.

It’s always a joyful argument, particularly when LGNSW makes a point of not providing any services at all to councils that aren’t a member of that organisation. We think that’s the right approach, and the principal that underpins it should be reflected in the Award. Clearly what is good for the goose isn’t accepted to be good for the gander.

Given the significant improvements in this Award, now is a good time to remind your freeloading colleagues that this isn’t a present.It’s not a gift from the Councils, nor the unions with their best wishes, but something that was negotiated by unions which are resourced only by fees paid by members.

Try making a claim at BUPA for medical costs if you ‘re not a member, and see how that goes!