LG Professionals invite members for a little bit of consensual S&M

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Published: Wednesday, 05 October 2022 11:41

For years we used this image from the Wizard of Oz whenever Local Government Professionals (sic) dabbled in employment or Award issues. At the time they had all the characteristics of those three wonderful characters - the cowardly Lion, the heartless Tin Man, and the brainless Scarecrow.

Some of their presidents have been worse than others - most have kept out of employment related discussions because they recognised their skill gaps and that there are people who deal only with that kind of thing and they should know what they’re talking about. But there have been others, clumsily crashing into Award negotiations, calling for the ability to stand down employees during Covid, and worse. Inexperienced and unqualified and getting in the way.

Back in negotiations with the Government prior to the establishment of the 1993 Act, the predecessor of LG Professionals (sic), the Institute of Municipal Management, was part of a unanimous view in the industry opposing the introduction of term contracts based on the SES model. Those were the days.

Now though, they are more likely to support the sacking of senior staff without procedural fairness than support steps to provide that procedural fairness - even when in addition to concepts of procedural fairness, the ICAC has called out the inappropriateness of arrangements that involve “no reason” terminations. One of them, after sacking a member of ours we think unfairly, even challenged the Unfair Contracts jurisdiction in the Supreme Court, and lost.

The LGNSW Board virtually a year ago resolved to create the industry consensus on changing the Act and providing award or EA coverage for senior staff, while leaving only the position of GM in that category. In March this year their Special Conference considered a motion from Mosman Council for LGNSW to proceed no further with this policy resolution. It included six easily rebuttable, flimsy arguments that were thrown out by the Special Conference with a unanimous no vote.

It's clear from the OLG Discussion Paper that the arguments put by the supporters of the right to sack unfairly continue to be flimsy and rebuttable and show astonishing ignorance of the capacity for these employees to be treated fairly, but still performance managed and disciplined, when covered by the Award - just like everyone else in the industry. It's a cliche, but it isn't rocket science.

It’s hard to find a GM prepared to publicly reveal they want to continue to sack senior staff without procedural fairness*. But they’re out there and no-one should be too surprised that LG Professionals (sic) has convened meetings of their members to discuss the Discussion paper - Senior staff employment.

Unconvinced by an industry consensus of the employer’s organisation and the employee’s organisations, people who witnessed the misery created by unfair sackings, the wasted public monies and the capacity to do things properly and remove an employee who simply can’t do the job in the Award, neither are they convinced by the ICAC’s Dasha recommendations.

Given the notoriety of the consensus and the legislative ramifications in the industry, it beggars belief that on 26 September, the CEO of LG Professionals (sic) emailed all members and said this:

As you know this topic has been raised before, and we were under the impression the previous sector wide consultation had affirmed the consultation with our members that there was no appetite to pursue a change from Senior Staff Contracts.

No appetite, no awareness of the industry consensus and the commitment of those who are part of it to push it legislatively, what have these people been doing? Did they miss Operation Dasha?

Nevertheless, they’ve organised meetings to consult with “members who are on senior staff contracts”. It’s curious there have not convened meetings for members who may aspire for those positions and would clearly prefer to be permanently appointed than survive at the whim of a GM pressured by Council, or pressured by councillors themselves.

The LGP Board of ten has one apparently unemployed former GM as president, two other GM’s but seven employees who from the sound of their titles on their website, would be senior staff. Self-interest is a great motivator and it’s hard to imagine, given the choice, they would want to build a career into the senior positions and continue to risk unfair sacked themselves. The two current GM’s would seem to be unlikely supporters of precarious employment for those who report to them but you never know.

Obviously it’s not all about lacking courage, or a heart or a brain, but there has to be a better explanation for why one group, the GMs, want to retain the right to inflict pain on others, and the other group, senior staff who are not GM’s, might want to retain the right to have pain inflicted upon them by being unfairly sacked.

At the risk of setting readers’ imaginations running wild about concepts of S&M in LGP, surely the Marquis de Sade got it right - there are people who obtain pleasure inflicting pain on others and people who obtain pleasure by having pain inflicted upon them. Will we see a decision of that Board reflecting that sadomasochism, or will they at last, do the right thing?

*We hope to be able to bring you a list of those people supporting the retention of unfair sackings after the meetings.

Minister for LG releases the much-awaited “Discussion paper - Senior staff employment”

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Published: Wednesday, 05 October 2022 11:41

The NSW Government is a funny thing. Back in the early 90s the Government decided when the new Local Government Act was to be made in 1993, that the model which operated in the NSW Public Sector for the Senior Executive Service should be forced onto councils.

It wasn’t ever a good model, employees in the SES in the Public Sector are, apart from at the very top, remote from the ministers and would be horrified at how closely their colleagues in local government operate with elected councillors.

Flawed or otherwise, in 2013, Premier at the time Mike Baird announced the “modernising” of the Senior Executive Service by doing two important things - transitioning members of the SES from term employment to “continuing” employment (that means permanent) and, while retaining the right to sack employees with 38 weeks’ pay, introduced a requirement for any authority wanting to sack someone (who couldn’t be sacked for bad performance or behaviour with 38 weeks’ pay) that they needed to first prepare a written submission to be considered by the newly appointed Public Service Commissioner. A clear check and balance that still doesn’t exist in local government.

But for reasons never explained in the intervening nine years, they didn’t flow those changes to senior staff in local government. It’s impossible to speculate without getting paranoid about the State treating local government with contempt but why the Government/Minister for Local Government/Office of Local Government thought it reasonable to continue arrangements clearly unacceptable abandoned in the Public Sector for being unacceptable by the government remains a secret.

There were senior positions in the Office of Local Government, including the Director-General at the time Tim Hurst, who benefited with fairer employment arrangements but felt no need to do something about it in local government.

And as we’ve said many times, when this was raised, the response from the OLG CEO was to get a consensus in the industry and the Office/Minister would do it. We know that was taunting, because the historic consensus was established on 26 October when the LGNSW Board decided because of recommendations from the ICAC, that senior staff employment arrangements needed to change. Yep, a year ago.

You’d think, wouldn’t you, that if the employers’ organisation and the employee organisations all have a common view about how employment should continue for the senior executives, then that should be sufficient. Unfortunately not, the Minister for Local Government and/or OLG, instead  wanted to consult to “seek the views of the broader local government sector on the changes requested by parties to the Award”.

We should be thankful for small mercies, after the way this has been handled, but no one has explained why it has taken two months for this to happen after the LGNSW and the unions endorsed a draft of the Discussion Paper on 27 July, nor why the Discussion Paper is out there for two months. And then it will need to be analysed in Sagittarius A. The cynics speculate (and some of the realists as well) that this has been deliberately done to create an excuse for the Government that it’s too close to the end of the year, to get on the legislative timetable, and then next year, everyone will be in election mode...

Here is the discussion paper, already sent to members for their input on 20 September.

Uh oh, the Building Commissioner is concluding the investigation into certifiers at nine councils …

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Published: Monday, 29 August 2022 12:40

On 25 August the NSW Building Commissioner David Chandler OAM, and Matt Press, Executive Director, Compliance Dispute Resolution spoke at a UDIA lunch. They reported on progress to date and the way ahead. After a well-publicised resignation, the Building Commissioner has renewed his employment and commitment to the cleaning up of the building industry. That's a good thing. We like him, he's a goer.

We had an informal meeting with the Commissioner and LGNSW CEO Scott Phillips months ago when the Building Commissioner told us they were about to commence an audit of a number of councils. We discussed this, and our view that if there are problems found, they will reflect inadequate resourcing or support, rather than anything like the sort of things detected for private certifiers. We talked about clause 9(i) of the State Award and the obligation on the employer to provide adequate staff and other resources, but also the reluctance of employees in the industry to call for help when under the pump.

In the presentation to the developers’ lunch, a slide headed "Certifier Program - Private vs Council" compared 11 certifiers and 9 councils. For councils there were 21 developments, 31 CCs and 26 OCs audited (in an audit still being conducted) and they had identified "85 Non-Compliances" to date. That's a lot, and in the traffic light system that they used to identify good, bad and indifferent, 16 developments identified as RED, two were identified as AMBER and only four were identified as GREEN.

Here is a link to the presentation and the relevant page containing this information is page 5.

No one really knew the implications of accreditation by Fair Trading and the BPB before it (as opposed to the significant legal evidence and cases available to justify the Civil Liability Allowance for engineers) and we have had a succession of State Awards where we have included a reference to this in the Leave Reserved clause until such time as we had some evidence of what that additional level of accountability meant. Clause 45 (vi) provides:

Leave is reserved for the parties to apply to vary the Award consistent with the principles of the Industrial Relations Commission of New South Wales in relation to the accreditation of employees by the Building Professionals Board.

We didn't know there were nine councils, and we don't know when the report will be released, and we will chase up the Building Commission to get this information. If you work at one of the nine councils and you have been having an audit, can you please let us know?

The number of non-compliances so far in OCs and CCs does not look encouraging.

Not too late if you’ve got any good ideas about the next award

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Published: Thursday, 25 August 2022 16:30

We invited ideas from members some months ago and received a good number of suggestions, but next week we will finalise our Log of Claims to be served on the employers and the other unions and negotiations will start later in the year.

If you thought you’d missed your opportunity to put in a brilliant and revolutionary suggestion, you haven’t, you’ve got until midday on Thursday 1 September. Be quick to

depa’s appeal over OLG denying access to information heard in NCAT on 19 August

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Published: Thursday, 25 August 2022 16:30

In the context of an independent review of the current OLG’s framework of how they manage complaints against councillor behaviour, there is clearly no time like the present to highlight the unacceptable secrecy that surrounds the way the OLG does business. That must change. Not enough transparency, too much cover-up.

This is an old story, a complaint against a miscreant councillor on Wagga Wagga Council, a serial offender, was investigated by OLG. Based upon that investigation, an order was made by the former CEO Tim Hurst which included an inaccuracy at paragraph 20, when it was said that the councillor had no previous complaints, nor anything else in the pipeline.

That’s factually incorrect. We provided evidence to Mr Hurst/OLG at the time and were ignored, made application under the GIPA Act to try to understand how after the investigation, that finding could be made, but were rebuffed because the GIPA Act excludes virtually everything OLG doesn’t want to disclose about their investigations. Critical to our case was our view that we didn’t want to see the investigation details, but whatever report had been prepared for the CEO and how that allowed him to make that fundamental error. The OLG has a discretion to provide information but on this occasion chose not to do so.

We lost it in the first instance in NCAT, opposed by a barrister for OLG and a barrister for the Information and Privacy Commissioner. It must be hard representing the IPC, as their barrister likes to call it (because it must be difficult to say you represent an “information” Commissioner when you are arguing against access to information) flouting the expectation of the Premier at the time that this new piece of legislation would be “best practice” in providing access to the public to government decision-making. The IPC barrister was able to establish in both the first case and in the appeal, that there can be no government authority more appropriately described as having an Orwellian title.

The appeal was heard by a panel of three tribunal members and a decision is reserved.

Interested in the past? What were the issues depa dealt with between December 1984 and September 1997?

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Published: Thursday, 25 August 2022 16:30

Over this period, the Health Surveyors’ Association/the Health and Building Surveyors’ Association published twenty tabloid newspapers and in the last years cheekily added under the masthead “Local Government’s Most Unruly Tabloid”.

Ancient stuff: councils attacking qualification; our smoke-free environment campaign in July 1986 launched by the Minister for the Environment in the Wran Labor Government, Bob Carr, that lead to smoke-free councils; what was stressing health and building surveyors in 1986; members on strike at Sydney, Parramatta and, in November 1992, nearly everywhere; privatisation; private certification; new Local Government Act and Minister sacked; doing it for nothing (a problem then, as now); Craig Knowles’ plan to end Council building control; an offer you can't refuse; No Dodgies in NSW, and more!

Here is a link to our Tabloid Past.

Central Coast goes hard to establish best practice in health and wellbeing leave

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Published: Thursday, 25 August 2022 14:40

The ability to take two days of sick leave each year as health and wellbeing leave was introduced as one of our claims in the State Award in 2017. At the time, we hoped it would be flexible in its application but most councils, if they did it at all, couldn’t get beyond the concept of attending medical appointments, for skin checks, or things like that. Traditional cautious local government thinking, trying to avoid establishing precedents.

A couple of councils, The Hills and Liverpool were able to be less rigid-minded and found great success when it was embraced by employees. Ideally this kind of leave should be an opportunity for people to take a break from work when they need it, and do something that reduces stress and makes them feel better.

We will be reviewing this in the Award negotiations later in the year but Central Coast has gone hard on establishing a limitless approach encouraging people to do things that make them feel well.

How about this as it was communicated to staff:

In light of that discussion, we want to encourage staff to use their Wellbeing Leave for not only volunteering at local charities and services but whatever it is that makes you feel well!

• Want to volunteer at your kid's sports carnival and feel like an amazing parent?  Wellbeing leave.
• Want to spend the day hiking and exploring the hidden gems across the Central Coast? Wellbeing leave.
• Want to read a book, shut out the world and expand your mind? Wellbeing leave.
• Want to spend the day mastering a new creative task? Wellbeing leave.
• Want to give back to your community? Wellbeing leave.
• Want to attend that drumming circle you’ve been desperate to try? Wellbeing leave.
• Want to simply prioritise your rest with activities that relax you? Wellbeing leave.

At last, after years of wanting to introduce something open-ended and sympathetic to individual needs, they’ve now done it. And great to see them embracing concept of reading a book, shutting the world out. What, a great way of unwinding. (Declaration of personal interest)

Please send us any examples of other good practices to use those two days a year.

Greg wins, Lake Macquarie loses, but don’t tell Liz

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Published: Thursday, 25 August 2022 14:30

How can it be that a light-hearted observation by Chief Building Surveyor Greg Brook in a Teams team meeting on 29 July 2020 (about a continuing disagreement between the Manager and the building surveyors over cumbersome and inhospitable software) could explode so dangerously like this.

The acting manager saw a recording of the Teams meeting, believed she had been disrespected in a way that did not allow Greg to meet with her informally and apologise for what was basically an inside joke with his team and then move on, but required a formal disciplinary interview and potential disciplinary action. Like using a wheel to break a butterfly, for want of a better analogy.

At that meeting, Greg’s further apology was treated with disdain and an observation that it was a surprise he had apologised, and things just got worse. HR didn’t intervene to protect Greg, followed with some training/re-education about how things are done at Lake Macquarie, and Greg was psychologically injured. On 25 August he left the office on sick leave and never returned.

Here’s a link to earlier treatment of Greg in 2016 that earned them a nomination in our annual HR awards. A series of actions that came to a humiliating conclusion for the HR person who conducted the partial investigation when the GM intervened to remove a punitive financial penalty and agreed that if there were no issues, it would all come off his file in twelve months, which it did.

Greg filed a workers compensation claim through the union’s lawyers, the insurer secretly filmed him and the Council argued that he wasn’t sufficiently damaged if he could go and buy groceries or meet a colleague for dinner in the local pub; they provided no information to his team about what had happened to Greg; they changed the Fair Trading accreditation practices without notice to him in a way that prejudiced his continuing accreditation and when we filed a dispute, because there’d been no consultation with anyone, they defended the process but the Council still has no documented process to show people who are new employees about how to renew their accreditation. These are examples only of multiple indignities, too many to list.

Knowing that his union representative was going on leave for a fortnight, on the Friday afternoon before the leave, HR phoned to say they were going to give Greg a “show cause” letter that afternoon. Despite our agitating for this to be delayed for a fortnight for him to have proper support, including sending a letter to the CEO Morven Cameron on the Saturday urging her to intervene, she refused to do so, allowing those who had already damaged him, to continue.

It was a disgraceful performance by the Council but as the Worker’s Compensation claim proceeded through the Personal Injury Commission, things didn’t go so well for them. In the end the Council chose not to press any of their evidence; agreed to reimburse Greg for eighteen months of sick/ long service leave; withdrew their defence that his injury was “wholly or predominantly caused by reasonable action from the employer” and the Commission awarded Greg the statutory maximum in weekly compensation payments from 14 October 2020 for up to five years as long as the injury continued.

But it’s not finished here -yet to be determined is how damaged (“diminished” as the legislation describes it) Greg is. If its significant, then the costs will be enormous.

CEO Cameron should not have ignored our request to intervene and none of these horrors would have rolled out. Council has a tendency to run witless and poorly conceived defences against employees injured at work, the most extreme example involved a collapse and settlement after twelve hearing days in the Federal Court, in a case run by an employee who had had a heart attack under unrelenting pressure from management. The Council has never disclosed what this cost the ratepayers of Lake Macquarie but it would have been hundreds and hundreds of thousands.                         .

Greg remains damaged by the behaviour of the Council, there is still no remorse, nor acknowledgement that things could have been done differently.

For every winner there is a loser, and LMCC, the CEO and those involved in this process are the losers.

Speaking of corruptibility, how are OLG and the Minister moving to implement the industry's consensus on “no reason” sackings? Part 2

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Published: Thursday, 25 August 2022 14:20

There’s sloth-like progress, and then there’s OLG and/or the Minister for Local Government looking perilously like they are becalmed. It’s no use emailing or ringing our office to ask what’s going on, we don’t know and neither does anyone else outside OLG and the Minister’s Office. We know how fast the Minister can act and deliver legislative changes when the Minister wants to but it’s two months since that last article in the June issue.

In response to recommendations from the ICAC and a tawdry history of unfair sackings, LGNSW Board first resolved to get rid of “no reason” termination of senior staff other than the GM and established an historic consensus with the unions in October 2021. The CEO of OLG had taunted LGNSW and the unions for years that if we could deliver a consensus, the OLG and the Minister would do something about it. Here it is, established almost a year ago, but it hasn’t happened.

Tyrants opposed it, but in March this year the LGNSW Board’s decision was reinforced by a special conference of councils which allowed tyrants to challenge it but the consensus was overwhelmingly endorsed with unanimous vote. No dissent.

The OLG Employment Reference Group, comprised of representatives of the three unions and LGNSW with OLG officers, on 27 July unanimously endorsed a draft Discussion Paper that had been prepared by OLG officers and amendments proposed by LGNSW had been readily accepted. The draft document was headed “August”, when we would have liked “July”, but now, on 25 August, there is not a peep from OLG, nor in particular, the Minister’s office.

By coincidence there has been an Upper House Committee investigating the appointment of former National Party leader Jon Barilaro to a cushy trade job, he had created as Minister, in New York. In a double page spread in the SMH on 12 August, the paper dealt with the potential conflict that arises with public servants, even those in very highly paid senior positions, when at risk of having their employment terminated at the whim of the Minister. The dreaded “no reason” clause that local government as an industry has now decided must go.

“Over six weeks of evidence, the enquiry has prised open the internal machinations of the public service to lay bare the muddied line separating the state’s most highly paid public servants and the government ministers who can hire or fire them on a whim.

Witnesses in their evidence have proclaimed the lofty ideals of the government sector that operates without fear or favour. But lines of questioning have more often revealed political pressure and nervous bureaucrats. ’The relationship between politicians and the public service is a perennial challenge,’ says Andrew Podger, a former senior bureaucrat and Public Service Commissioner.

‘Problems of excessive political pressure are occurring across jurisdictions and are not confined to one side of politics or the other... Clearly the head of Investment NSW felt constrained in exercising her authority, and pressure was known also to the head of the NSW Premier’s Department.

No public sector of employment, whether it be Federal State or local government, can operate without fear or favour in providing advice or making decisions while ever those responsible for the recommendations and decisions can be hired or fired “on a whim”. No reason, no recourse, no fairness, no justice, nothing.

Neither the employers’ organisation nor the unions understand why something aimed at satisfying recommendations of the ICAC, and removing capricious and unfair sacking of good employees is being treated with so little respect. The Discussion Paper, endorsed by the industrial parties, can still be distributed this month ...

What a refreshing change. A crook confesses at ICAC

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Published: Wednesday, 22 June 2022 12:47

It was a long time coming and hugely anticipated from the merger of Hurstville and Kogarah in 2016 to create Georges River, with the high profile major players, one Liberal and one Labor, happy to help developers by overriding planning proposals from Council staff. In doing so, they created an environment hostile to staff, particularly senior staff, that explains why Georges River spent over $200,000 in 2019/20 on code of conduct complaints, more than $2.5 million to date on legal costs associated with the current three year ICAC investigation, Operation Galley, and another $1.2 million in the draft budget for 2022/2023 to cover the continuing costs of the investigation.

The ICAC is currently investigating two current councillors, Labor’s Vince Badalati and the Liberals’ Con Hindi (yes Con, maybe better to revert to Constantine now) and one former councillor, independent Phillip Sansom.

These three are being pursued to determine whether they “sought and/or accepted benefits as an inducement or reward for partially and dishonestly exercising their official functions to favour the interests“  of two big developers. The Corruption Commission is also investigating whether between 2014 and 2021 the three councillors “deliberately failed to declare or properly manage any conflict-of-interest arising from their relationships with” the two developers.

But wait there’s more, they are also investigating whether the two developers “provided benefits, including overseas flights and accommodation to Councillors Hindi, Badalati and Sansom, as a reward or inducement to favour their interests in relation to Council decisions regarding planning matters” affecting what have been described as the Treacy Street and Landmark Square developments.

ICAC investigations can be slow and grinding affairs, witnesses hedging, dodging and weaving, but 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. Uh oh, and that he was with Councillor Hindi at the time and he received the same payments

Councillor Hindi has not yet given evidence but there have only been two days of hearings, opening submissions and while Badalati has confessed, Hindi and Sansom are yet to give evidence.

It’s astonishing how much time and effort can be spent on one councillor - in the last 12 months reporting period, Georges River forwarded 28 Code of Conduct complaints to the Office of Local Government, 22 of which related to Hindi. What an astonishing waste of ratepayer funds that could have filled staff positions and provided services.

This is a story that will continue. It comes as an enormous relief to Council staff whose recommendations have been overridden and whose focus on proper, orderly and lawful planning, has been treated with contempt. It’s been a hostile, aggressive and bullying environment for staff and while it’s clear that ICAC will get scalps, it’s more important to normalise relationships between councillors and Council staff, and to have those surviving councillors develop a proper respect for each other’s role. And stop the harassment.