Councillor Misconduct Review released

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Published: Tuesday, 20 December 2022 11:19

The good news is that the Councillor Misconduct Review has now been released. Dated October 2022, it was released on 13 December with a Media Release from the Minister, Wendy Tuckerman.

The Report “proposes the biggest changes to local government integrity measures in more than 30 years” and includes “49 recommendations aimed at improving the integrity, transparency and accountability of the state’s more than 1,200 councillors”.

The Minister notes “it’s clear from recent ICAC public enquiries and the number of Council interventions that changes are needed to build community trust in local government.

The recommendations include harsher penalties for councillor misconduct and ensures the framework for dealing with misconduct is more independent, effective and efficient.”

The media release contains links to the report and a Consultation Guide inviting feedback up until 3 February.

We’ve already had our say, depa was the only union that made a submission, reflecting the reality our members are those most vulnerable to councillor antagonism and hostility and we are one of the fourteen organisations or people who were interviewed.

We will be making a submission next year.

That’s it for us

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Published: Tuesday, 20 December 2022 11:19

We’ve all had enough, hanging out for a break to come back fresh, strong and revitalised for 2023.

Our Office Manager has resigned, and luckily for us, Margaret Bayliss, who retired two years ago after working for us for seven years and for the Institute of Building Surveyors for 15 years, is back on a very part-time basis to cover the end of this year and the beginning of 2023 while we recruit a new Office Manager. Thank you, Margaret.

The office will be closing at midday on Thursday 22 December, Margaret will be here for a day or two a week and I’ll be back on Tuesday 24 January.

From the Office and the Committee of Management, we wish you all a well-deserved break, full of love and laughter with your families, good things to eat and drink, lots of relaxation, some exercise, a book or two or more if you can, listen to some music, and get ready for 2023.

‘Tis but a scratch - mixed fortunes at the High Court, and later …

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Published: Monday, 05 December 2022 14:41

Unions NSW and Others v State of New South Wales was heard by the Full Court of the High Court on 16 and 17 November. As briefly advised in the last issue of depaNews, the primary argument concerned “acting in concert” provisions in the Electoral Funding Act 2018. The issue of the cap for by-elections was a secondary matter.

The Act regulates the expenditure and lobbying processes in elections but for our purposes it put a limit on third-party campaigners (unions, environmental organisations, carbon polluters like the coal lobby, religious organisations - anyone other than political parties) of $500,000 for state elections and $20,000 for by-elections. The problem was that the $500,000 figure was also a maximum if unions banded together, or acted in concert, and campaigned - like the Nurses, the Teachers, the public transport unions and the Public Service Association, on the public sector wage cap, or staffing, for example.

UnionsNSW had been to the High Court twice before, winning both cases. This was third case to deal with the limit on acting in concert and whether this was a valid law under the Constitution because it denied the implied freedom to fairly participate in the argument of ideas. Successful lobbying resulted in the Upper House rescinding the provisions capping acting in concert. This was then supported by the Lower House, with the Government angrily caving in because they couldn’t stop it - “under protest”, describing it as “shameful” and having “destroyed the validity of the legislation”.

Unions NSW, conscious of the State election scheduled for March next year, pursued the Government for seven months, asking for their undertaking that they would not reintroduce the arrangement as a regulation - something this Government has done in other areas - and they sounded angry and desperate enough to do so here.

But the Government refused (no wonder the rail dispute took so long to resolve) requiring a third case, about a piece of legislation rescinded but capable of resurrection. The High Court is historically reluctant to hear hypothetical arguments despite the attraction of resolving this issue once and for all and, as Justin Gleeson SC on behalf of UnionsNSW put it, also doing it in the interest of “judicial economy” - both a fabulous expression and compelling argument. This was turgidly opposed by the Government.

The Court adjourned at the lunch break for the seven Judges to determine whether the argument would proceed in the afternoon. When we resumed, the Chief Justice announced that “a majority” was opposed to continuing. Reasons for this will be published.

On the second argument, candidates in a by-election can spend $250,000 each but third-party campaigners are capped at $20,000 and that amount also applies if acting in concert. The unions argued this was unconstitutional because it inhibits debate about political ideas. The most recent by-election was Upper Hunter, there were seventeen candidates who collectively could spend $4.25 million and twelve third-party campaigners capped at $20,000 - both each and collectively. There is no possibility of running a successful campaign on that kind of money. The Court adjourned to provide a judgement later.  

To complicate matters further, there had been a Parliamentary Joint Standing Committee on Electoral Matters considering the issue of caps on third-party campaigners in by-elections with a report expected in May this year, but not yet delivered.

The week after the High Court action, the report was released: finding that the current cap was “too low for TPCs to run effective campaigns and properly participate in the electoral process during by-elections”, that was “causing TPCs to choose not to participate in elections” and it “supports increasing the cap to $198,750 which would allow TPCs adequate resourcing to run campaigns in by-elections, while preserving the voices of candidates”.

That’s a tenfold increase in the current cap and led to a frenzy of communication between our lawyers and theirs, the Government agreed to jointly approach the Court to provide the Report, conceded the argument, and agreed to pay the unions’ costs.

It’s been quite a year: UnionsNSW and others successfully lobbying the Upper House to have the legislation rescinded; the Government doing so reluctantly and angrily; then refusing to cooperate by providing an undertaking they wouldn’t reintroduce the rescinded legislation by regulation; forcing an application to the High Court; a grossly overdue Report from the Joint Parliamentary Committee, and whammo, we win.

The cost of the case has been pro rata between the unions on the number of members, so our contribution has been almost infinitesimal compared to the bigger unions, but we all contributed equally per head.

Just how much of the costs will be met remains to be seen, but this is not a bad way to end the year.

What’s happening?

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Published: Monday, 05 December 2022 13:56

There are two big deal issues for us being considered and managed by the Office of Local Government - and/or the Minister.

First, what’s happening about the senior staff initiatives? We are almost three weeks after the deadline for submissions on the senior staff initiatives, something that has been a critical Issue for us for decades. We received a summary at the last meeting of the Employment Reference Group (convened by OLG with LGNSW and the unions) on 9 November which was not publishable, but we should be able to see a summary of the final submissions, to get a feel for the level of opposition in the industry from the broader consultation and be updated about what follows next and a timeframe for that to happen.

It’s clear that this issue will not be resolved this year, but some commitment to pursuing it would be welcomed by the unions and the employers’ organisation.

And second, what’s happening about how OLG deals with complaints against councillor behaviour?  

Minister Hancock announced it towards the end of 2021 and on 26 November 2021 Gary Kellar PSM wrote that the Minister had initiated an “independent review of the framework for dealing with councillor misconduct” and he had been appointed to carry out the review. He said this was all about how “complaints about Councillor misconduct are managed with the aim of identifying possible areas for improvement,”  inviting submissions “identifying areas for improvement, together with suggestions for the practical application of those improvements”. A coincidence for us, we were at the time in NCAT about precisely that issue, with OLG refusing us access to documents on an investigation into complaints made against a councillor at Wagga Wagga

A Consultation Paper was issued in November 2021, four months to provide submissions, we made ours on 28 March and covered it in depaNews,  and nothing has been heard since. We understood it had started and there were high expectations. We know it has concluded but we’ve not heard anything at all about the report that would have been issued to the Minister (and ordinarily would be distributed within the industry), what recommendations may have been made, what was going to happen to provide all those improvements the Minister at the time anticipated.

Last week we asked, and were told updates would be provided on both these burning issues to the Employment Reference Group, when we next meet on 13 December. This is a confidential forum but we hope to be able to distribute the information.

How has HR been this year?

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Published: Monday, 05 December 2022 13:41

Our final issue for the year will be our special Worst HR in Local Government issue, or the Golden Turd, as it is more commonly known. It’s eagerly awaited by councils wanting to see how bad others are, so they know where they should go to poach mistreated staff, and by the guilty councils hoping they’ve escaped nomination.

But if we have fewer nominations this year, we have one in particular that has set a new low standard - ignorant of process, impatient to reduce progression in the salary system, bulldozing, intolerant of dissent, unable to reach agreement, and when they do, reneging on it with no understanding or respect that agreements are the cornerstone of well-managed industrial relations. And there’s more.

The HR awards will be published in the week beginning Monday 19 December. Nominations remain open.

Randwick GM’s bold move to protect senior staff

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Published: Tuesday, 08 November 2022 09:45

It’s now more than twelve months since the LGNSW Board resolved to create consensus with the unions about protecting senior staff and bringing them under the Award. It took a long time for the Office of Local Government to move, to develop a Discussion Paper, to put it out for consultation in the industry for “broader” consultation - people who may well want to continue the ability to sack senior staff without reason. We are all being very, very patient in a process that may not end in time to allow legislative change before the Government gets itself into election mode next year.

But Randwick Council’s GM, Therese Manns, thought it unnecessary to wait, and acted both immediately and decisively to support her senior staff. In an unprecedented move during this consultation period, she put two recommendations to the Council: that it prepare a submission supporting the historic consensus on providing fair employment for those currently called senior staff, and at the same time “convert Director level positions at Randwick City Council from senior staff contract to Local Government (State) Award”.

The Local Government Act 1993 requires councils to determine senior staff positions. The only position that must be senior staff and capable of being sacked without reason is the GM, and it is open to councils to not impose this unfair employment arrangement on anyone else. Smaller councils have been doing this for decades (although mostly because the second level doesn't meet the minimum remuneration levels required), Penrith Council has done this fairly recently but at last, to emphasise the importance of this historic consensus, the Randwick GM has fixed it locally. Inspirational.

Here is an extract from the minutes of the 18 October 2022 Council meeting:

If we had another seventy or eighty general managers prepared to do this, it wouldn’t matter how long it took Sagittarius A to deal with it. We urge all those other GMs to do it as well. Now that the ICAC has acknowledged the corruption risk with this form of employment, what’s holding them back?

With the consultation period ending on 15 November the optimists are hoping the OLG and the Government do the right thing on this and deliver the legislative changes this year. 

NSW unions challenge NSW Government in the High Court – again

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Published: Tuesday, 08 November 2022 09:45

In 2018 depa joined in an action which the High Court describes as Unions NSW 2 v NSW Government. It was a challenge to the legality of restrictions imposed in New South Wales legislation putting a cap on campaigning expenditure by third parties and, in particular, imposing that same cap when a number of third parties get together - or as the legislation describes it, “act in concert”. It was also the second case Unions NSW had conducted on electoral funding, the first was successful, and the second was an absolute triumph, humiliating the NSW Government with all seven judges agreeing it was unlawful.

You can check our coverage in three different issues of depaNews here:

NSW unions challenge NSW Government in the High Court

High Court to hear union challenge to electoral funding laws next week

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

Section 35 of the Electoral Funding Act 2018 is the problem but successful lobbying of the NSW Upper House saw the opposition and crossbench unite to rescind that section to ensure that the acting in concert offence was repealed. The Government agreed to the Bill, and that should have been the end of it, but the Government refused requests from Unions NSW to give an undertaking that they would not reimpose that provision in a way that would prevent joint campaigns in the future.

So, notwithstanding all that, the case has been set down for hearing in the High Court on Wednesday 16 and Thursday 17 November. The High Court must be wondering how many times they have to reject the approach of the Government before they accept there is an implied freedom in the Constitution for third parties to participate in the electoral process.

We file a dispute with Waverley for failing to have a Consultative Committee operating for 30 months

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Published: Tuesday, 08 November 2022 09:45

When the Local Government State Award was made to operate from 1992, one of the significant achievements was the requirement that all councils have a Consultative Committee that would, for the first time, acknowledge the importance of employees having a say in things that affect their lives at work. There was some antagonism to this but it was a Federal Government initiative at a time the government thought cooperation in the workplace was essential. It was a big step, challenging the historic view of managerial prerogative trumping everything, it prescribed how a Committee should operate, who should sit on it, what it should do.

Now local government accepts it is an integral part of a modern workplace.

But while Waverley Council thought Council meetings could be held remotely during the pandemic, for reasons not properly explained, they thought that the Consultative Committee couldn’t. So they didn’t, unchallenged for 30 months. The last meeting was on 12 February 2020.

The unions, first separately, and then together, started raising it with People and Culture, the people who would normally be responsible for the management of the Consultative Committee. Those approaches were ignored by P&C, trying to fob us off with talk of the need to review the Constitution, it wasn’t their responsibility, the dog had eaten their homework, and even if it wasn’t their responsibility, they were very happy to stonewall.

Thirty months is a long time to not have a Consultative Committee meeting when the rest of the industry quite happily moved to remote meetings. They’ve still not explained how the Council could operate this way, but not the Consultative Committee, so we filed a dispute.

As a result of proceedings in the IRC on 27 September, the Council accepted they would start having the meetings, consistent with the requirement in the Constitution to meet on a certain day every month and the first meeting was held on 12 October. The first opportunity to meet consistent with the Constitution.

It was a dispute over something that no other Council had ever done, without anyone ever properly explaining how it happened, or whose decision it was. No one has put their hand up to own it.

The dispute also demonstrated the truism that there is a high correlation between councils caught doing the wrong thing and complaining about unions being intimidatory. Thirty months breaching the Award, they should have extracted as many fingers as they needed to respond to the unions requests immediately. Sprung. No wonder they felt intimidated, poor little loves.

It was refreshing to have the relatively new GM apologise to members of the Consultative Committee at the first meeting, but no one has put their hand up and said it was me, and it was a mistake. That fell to the GM, taking one for the team. Both kind and courageous of her.

The unions had identified eleven policies and protocols that had been varied, amended or changed in some way, including proposed changes in the job evaluation system, that should have ordinarily been through the Consultative Committee. A sad development for a Council that regards itself as progressive and consultative.

The NSW Building Commissioner is interested in the big picture with local government certifiers

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Published: Wednesday, 05 October 2022 11:41

We met with the NSW Building Commissioner David Chandler on 9 September, concerned about slide 5 in a presentation he had made to a Developers’ Lunch on 25 August. We think he’s done a great job generally, unbelievable productivity, the statistics on the number of apartments inspected and the benefits that provides to consumers are astonishing and we love the idea that when he’s finished in his current role, he takes over the Office of Local Government for a while. He would only need six months.

Slide 5 showed a comparison of “Non-compliances” of eleven private Certifiers with certification done at nine councils from an audit of 21 Developments, 31CCs and 26 OCs and showing “85 Non Compliances”.

The Building Commissioner is interested in the quality of the certifying rather than the quality of the certifiers, he understands issues of under-resourcing and those problems confronted every day by the industry. For that reason, he didn’t want to identify the nine councils but we can rest assured that it’s the process targeted here, rather than an individual certifier or certifiers. Fair enough, we look forward to the recommendations from the Report, yet to be published.

2023 Award discussions have begun

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Published: Wednesday, 05 October 2022 11:41

The unions and LGNSW, the parties to the State Award, met on 13 September. We had the normal ceremonial arguments and sabre rattling but with a focus about cost of living increases, the urgency of pay increases, the need for them to be decent and reflective of the cost of living, and something well beyond what we’ve been used to in recent years. And the industry’s capacity or incapacity to pay.

Critically, the State Award was made by consent of the parties back in October 1991 and has been varied by consent of the parties ever since. Sure, there have been occasions when members of the Commission have assisted conciliating questions that were proving difficult to resolve (and may in this Award as well) but historically it has been an unprecedented history of cooperation.

And just like a human pyramid, everyone needs to be working hard cooperatively to make the thing work.

We went through the log of claims by LGNSW and set a timetable to file a dispute for those occasions when we may need the Commission to assist by settling some issues that can’t be agreed, a timetable of dates, through to making the 2023 Award to operate from the first pay period after 1 July.

Here is our Log of Claims and here is the Logs of Claims by LGNSW, the USU and LGEA.