2021 Golden Turd winner resigns

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Published: Wednesday, 06 April 2022 14:24

Narrabri GM Stewart Todd resigned from the Council on 22 March. In an email to all staff he noted “I walk away with my integrity intact - a number gone before me have not!”

Barbarians rise to keep unfair sackings

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Published: Tuesday, 01 March 2022 14:53

When the LGNSW Board on 15 October resolved to create an historic consensus with the unions to support removing “no reason” sackings of directors, they did so cautiously and prudently. They acted on a recommendation from their Industrial Advisory Committee, they benefited from representatives of the ICAC coming and discussing the initiative and whether it was consistent with recommendation from Operation Dasha, and conducted information sessions online with councils across the state.

But when you take steps to prevent General Managers from unfairly sacking directors who report to them, you can expect a backlash. The barbarians are well and truly trying to sack Rome and while it may seem a bit of an exaggeration to see the steps taken by the unions and LGNSW to remove the corruption risk of “no reason” sackings and to provide fair appointment practices as equivalent to the civilisation of Ancient Rome, it’s certainly a far more civilised arrangement than current practices.

It’s not an exaggeration to see frothing general managers desperate to retain the power to sack unfairly, directors probably doing what they’re told because their employment is tenuous with a “no risk” provision in their contract, and a conservative politician from a highly conservative Council, as the barbarians.

But these furtive characters don’t want to engage with the unions publicly, or even LGNSW publicly about the reasons for their objections. They are flimsy and hollow and show a remarkable ignorance about what can be done, and not done, for employees under the State Award.

No one should be surprised that Mosman Council, a council which in the 1980s got really excited about the Thatcherite economic rationalist agenda, and contracted out all their outdoor services reducing their staff by more than a half, was right there at the front of the barbarians. Clearly the fingerprints of a ghost of councils past at work here.

Removing the unfairness of the standard contract from the layer below the GM makes sense because it’s reasonable to have everyone fairly employed in a Council, with transparent and clear treatment and with access to the Industrial Relations Commission, just like the rest of the workforce, for unfair and unreasonable treatment.

GMs, as excited as they may be about losing their right to sack people unfairly, apparently can’t see the benefit in the ICAC’s recommendations that there is a corruption risk in “no reason” termination. It’s a practice we’ve seen twice with our members and which is apparently more prevalent than anyone publicly admits - councillors threatening a GM that if they don’t sack the Director of Planning, the Council will sack the GM. Too many guns to the head in that situation, all GM’s should be thanking us.

It’s a credit to LGNSW that their councillor members see the corruption and reputational problem in this unacceptable practice and are courageously, at the time under the leadership of President Linda Scott, prepared to end it.

This morning at the LGNSW Annual Conference, the conference debated a motion from Mosman that “Local Government NSW takes no further action on the proposal to remove senior staff (excluding General Managers) from the Local Government Act 1993 in order to bring senior staff (excluding General Managers) under the Local Government State Award...”

We found out by misadventure on Friday afternoon last week. Here is the agenda extract in its entirety and our email to the Mayor of Mosman, Councillor Carolyn Corrigan on Saturday asking her to rethink the initiative and discrediting the six arguments the Council had put on the agenda. It was a pleasant and charming approach with a concise focused critique of their flimsy argument, but she didn’t reply. That may well be because no one’s game to say we are opposing this because we want to sack people unfairly, or some dinosaurs made us do it, but you’d think they could come up with something a bit more substantial than these six points.

For what could have been a significant brawl, and not just between the rival political parties involved, when Councillor Corrigan rose to speak in favour of the motion, there was one speech in opposition, apparently a powerful and compelling contribution by Canterbury-Bankstown Mayor Kahl Asfour, smashing the credibility of the flimsy argument. The motion was put with no further speakers and lost.

And not lost by a small margin, lost on the voices, overwhelmingly, with no call for a division or a count.

This is perfect. The barbarians and the reactionaries have had their chance, they have blown it, and even those councils where we know there are GM’s and others unhappy with losing their power to sack unfairly, didn’t want to get into that battle.

There is a new Minister for Local Government and we can use the momentum of this morning’s resolution to encourage the Minister to deliver on what OLG have been telling us for a long, long time, “bring us a consensus, and we will deliver on it”. We know it’s an important decision for both the Minister and the Government, facing an election shortly with potentially a jampacked legislative agenda, but this initiative should proceed as soon as practical.

Our thanks go to Councillor Asfour, and for the many people involved in educating and impressing upon people the significance of this motion from the barbarians.

Wonder no longer why some people call Mosman the sunny place for shady people.

depa v Narrabri settled

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Published: Tuesday, 01 March 2022 14:53

For those of you who have been wondering what has happened to our section 106 Supreme Court action, depa v Narrabri Shire Council, it was filed on 19 June 2018, a half day argument in the Supreme Court when the Council challenged the Court’s jurisdiction on 15 November 2019, judgement confirming that the Supreme Court has jurisdiction on 19 October 2020 and depa and Narrabri Council have agreed to terminate/discontinue those proceedings. The details of this agreement are confidential. 

Enough about everyone else, what about us? We’re having an election.

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Published: Tuesday, 01 March 2022 13:00

We have elections for all members of the Committee of Management in 2022. The President, Vice President and four Members of the Committee have two year terms and the Secretary has a four-year term. Everyone is up for election this year.

As usual, the NSW Electoral Commission will be conducting the election and next week will post all financial members an Election Notice calling for nominations. If you don’t receive one, it means you aren’t financial, or you haven’t kept us up to date with your current address.

We like the idea of proportionate representation for the three professions we cover, and also our gender make up, which is getting very close to 50:50. Obviously there is a limit on our ability to do this, because it is a democratic system and anyone can nominate. We have a Committee of seven, six of whom are renominating and one member, who isn’t. Shona Porter was our delegate at the former Canterbury, then Canterbury-Bankstown, is now at Cumberland and has been a member of our Committee for the past four years. Thanks for your contribution, Shona.

In a perfect world, we would replace her with another woman planner under the age of 40!

It makes sense that the Committee is comprised of people who have been active in depa over the years as a delegate and member of the Consultative Committee, and if you are interested in standing for the Committee and would like some idea of how demanding the role is, the frequency of meetings, the complexity of agendas and business papers, we can tell you all about it.

The timetable for the election is:

7 March               NSWEC posts Election notice calling for nominations

22 March             Nominations close

If the election is uncontested, all candidates are declared elected at midday that day. It’s usually uncontested, we hope it continues to be uncontested. Apart from anything else, the costs double if there is an election.

Please email if you’d like more details.

That’s it for us

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Published: Monday, 20 December 2021 14:30

It’s been a difficult year for all of us. COVID has smashed us all, or run us ragged, and we seem to have had more individual mental health issues from members at work than usual. We all need a break.

The office will be closing at midday on Thursday 23 December, Lyn will be back on Wednesday 5 January and the rest of us, on Thursday 27 January.

On behalf of the two of us in the office, and the Committee of Management, we wish you all a well-deserved break, love and laughter with your families, some good things to eat and drink, relax, get some exercise, read a book or two, listen to some music, get some respite from this ludicrous spike in the COVID cases and Omicron, avoid crowds, and line up for your boosters.

2021 depa awards for the Worst HR in Local Government

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Published: Monday, 20 December 2021 14:30

How’s HR been this year?

Last year we said 2020 was a year to forget - bushfires, flooding climate change evidence everywhere but still deniers, and then a world pandemic. But 2021 was a serious continuation of the pandemic where it seemed out of control and everything got worse. Lockdowns, huge spikes in case numbers, deaths, and overwhelming pressure on hospitals to cope. In Sydney every day we see more than 2000 new cases, with a majority of unvaccinated idiots and a minority of vaccinated people. And Omnicon.

It may well be that HR was too preoccupied by the immediacy of the health and safety risks in the workplace from COVID to behave badly - surveys of staff universally indicating a preference for all employees to be vaccinated and gradually as we come to the end of the year, most councils moving towards mandatory vaccination with deadline dates, for those wanting to give everyone plenty of notice, into February.

All those councils surveyed staff, but one Council, Wollongong, didn’t survey staff and reckons that their workplace risk analysis showed they could manage the risk of infecting employees at work by careful placement of workers, appropriate physical distancing, keeping people working from home and without requiring mandatory vaccination. All those councils that have introduced mandatory vaccination had also done workplace risk analyses showing that they couldn’t manage the risk without ensuring that the workplace is restricted to those who are fully vaccinated.

It’s a significant risk, prosecutions for breaches of the Work Health and Safety Act 2011 can result in massive fines and changes to the Workers Compensation Act 1987 this year introduced, in section 19B, occupations “where work is presumed to be the substantial contributing factor to contracting COVID-19 unless proven otherwise”. While local government is not expressly provided, there are employees within the industry that fit within those industries and occupations that are prescribed, but the point is made. That presumption makes the employer’s position even more at risk.

Councils are now better informed about working from home with significant evidence over the year of continued productivity while not in the office. No longer will the old-fashioned managers (and not all of them old blokes) reject working from home proposals because now evidence can be provided, and their decisions examined. Even Clarence Valley has softened.

One of the significant changes in the Local Government State Award 2020 last year was the obligation on employers in clause 9(i) to “provide adequate staff and other resources to enable employees to carry out their duties and functions over the course of working hours that are not unreasonable...”. This was a change made after a formal hearing before Commissioner Murphy where LGNSW, on behalf of those councils reluctant to accept the obligation, were overwhelmed by our argument of the reasonableness of this requirement. It is, almost hilariously, a provision of the standard contract for senior staff, it’s a common law assumption, and now it’s an Award obligation. There is nowhere to hide.

Councils need to be wary of their obligations under clause 9(i).

Now, for the thirteenth year, here are our nominees.

Narrabri

Narrabri GM Stewart Todd is no stranger to depaNews. One of the general managers (and one administrator) who have appeared in depaNews, photoshopped with a butchers’ knife and covered in blood after sacking senior staff without notice. He had also acted contrary to section 337 of the Local Government Act 1993 in putting our member on the senior staff contract before the Council had resolved that the position was senior staff, and in terminating him, failing to consult with all councillors. The Office of Local Government did something about this (!) by circulating advice to all councils that all councillors needed to be consulted before an appointment and a termination or they breach the requirements of section 337.

When depa pursued the termination of our member in the Supreme Court, the GM went hard, contesting the jurisdiction of the Court to hear a section 106 Unfair Contract argument for a local government employee on the senior staff contract - a case the GM lost.

And just as well that he did lose: a successful challenge to the Court’s jurisdiction would have removed any hope for senior staff to have considered the circumstances of their termination, and whether it was fair or not. Why it seemed like a good idea to take deliberate action to challenge jurisdiction, that if successful would have prejudiced the rights of all senior staff from having access to a tribunal, beggars belief.

The circumstances themselves were salutary for the industry. It sat in the background with the ICAC’s Dasha recommendations as contributing factors encouraging LGNSW to alter their historic position defending the senior staff contract and protecting senior staff being sacked for “no reason”, to allow us to have a common view in the industry. As they acknowledge, LGNSW has been involved in unfairly sacking more senior staff than anyone else.

We are building on this common view now by pressing the OLG and the Minister for Local Government to make amendments to the Local Government Act to ensure that the only senior staff member is the GM and that all other senior employees are covered under the Award or Council Enterprise Agreement, if there is one.

Narrabri is not a happy place. Since our member was sacked 2 ½ years ago, forty other employees, predominantly indoor staff, have left the organisation. Some under duress but most unhappy about the culture. Forty employees from a salaried staff of around eighty – a staff turnover figure unrivalled in the industry, anywhere, ever.

And the allegations are that a disproportionate number of women have fled the Administrative building, claiming harassment and bullying, as well.

It’s no wonder the Council last year paid more than $1 million for their Workers Compensation premium.

Narrabri, or really GM Stewart Todd, gets a nomination.

The new Council needs to be reminded that the Council’s Charter in section 8(1), amongst other things, requires that the Council is “to be a responsible employer”.

Newcastle

The three unions negotiated a new Enterprise Agreement with Newcastle City Council in late 2018. The burning issue for everyone was the Council’s dawdling over the years with the urgent need to review the salary system. For professional employees, the system was uncompetitive and did not assist the Council to attract and retain staff.

There was a new CEO appointed in December 2017, Jeremy Bath, with a history of managerial positions outside local government. While the most senior employee representing the Council was Fiona Leatham, appointed as Director of People and Culture in June 2017, the negotiations were really conducted by Rod Harrison, the retired former Deputy President of the IRC operating from Newcastle, and highly respected by both employers and unions.

From inside HR we’d been told “the salary system is a long-running issue so it is fair that the employees are frustrated by that. The only way we can build back trust is my following through with the commitment.” This was the commitment in the EA to have a salary system review “as quickly as possible” and while the unions pressed hard for a date to be included in the three-year EA (meaning that it would come to the end of its term in December 2021) the Council refused - and sold to us by the former Deputy President on the Council’s behalf as “it is what it is”.

Equally of course, it isn’t what it isn’t, and while the unions would have liked deadlines during the three years as a target, there was always the default deadline of the end of the three-year term.

Clause 13 obliged the City to “conduct a salary system review that is Award compliant, relevant, equitable and industrially sound. The salary system review will commence 2 months from the date of approval of this Agreement by the NSW Industrial Relations Commission and proceed as quickly as possible”. What could possibly go wrong, the Council had 34 months?

depa members initially voted to reject the EA, having no confidence in management doing the review and finishing it within three years. A second meeting reluctantly accepted the offer, requiring depa to write to CEO Bath advising “there was significant concern about management’s commitment to this process and, in particular, a lack of confidence in the City’s commitment to review and develop a new salary system”, reiterating, “and in particular, concerns about the City’s commitment to carry out the salary system review without the assistance of the IRC.”

Our members were right, these are slippery bastards, arguing only in the last fortnight as we got closer to the deadline imposed by a three-year term of 31 December 2021 that there is really no deadline at all. They wouldn’t give us a date during the three years but the three-year term of the EA imposed one, whether they liked it or not.

A week before 31 December, we find ourselves in the IRC on Thursday 23 December arguing about whether there was an obligation or not.

The charming Fiona Leatham (who has had two resolutions of USU meetings calling for the CEO to sack her) in a letter to the unions on 13 December accused the unions of “false claims”, but if you run HR, you should know an EA has a three-year term.

It’s hard to understand the City’s argument. Why would they have a commitment to move “as quickly as possible”, if they never intended or felt obliged to have a system operating within the life of the EA? This can only make sense if our members were right at the first meeting and they are employed by people who are untrustworthy and were consciously misleading everyone - a giant hoax perpetrated by management on the employees.

Port Macquarie Hastings Council

In the dull old days before the 1993 Act removed restrictions on who could be the GM and do other jobs, the GM was usually a bloke, and invariably an accountant. Everything was predictable, stolid and usually unimaginative.

PMHC last year appointed a new CEO who is none of those things. Dr Claire Allen has master’s degrees in business leadership from the University of WA and “Metaphysics Sciences”, from the University of Metaphysical Sciences in the USA (where else?) which provides “distance-learning metaphysical degree programs studying “the ultimate nature of existence, reality, and experience without being bound to any one theological doctrine”, she couldn’t be more different.

Not just unbound by theological doctrines, for the past decade she has been “Full-time” Managing Director of “Dr. Clare Allen and Associates” (two full-time jobs at once would have been a challenge for the Council under section 353) where you can buy her self-help publications and her “Trigger Stones”. For only $150 you can buy a set of four river stones engraved with the letters C, S, K and P, “that will literally change the way you lead yourself and others”.

“I have created the Trigger Stones from a place of deep reflection, knowledge and practice. My mission in life is to unleash leaders to be the best they can be.” I would carry a stone in my pocket to change a behaviour that needed changing. I would give the stone an affirmation and whenever I lapsed into old habits, I would feel the stone and reset my thinking. I was a CEO well before I was 30 years old”. How could anyone not be inspired by that!

Why not offer an economy box of two stones, one with a B on one with an S?

But curiously the eleven months since her appointment hasn’t established Nirvana. It has coincided with a dramatic crash in the relationship between the Council and its employees and plummeting employee morale. Port was a Council that would have been unlucky to have a dispute a year but since the appointment, they’ve had nine. Yes, nine, and one of them was with us.

This was a dispute about a council practice for 180 or so employees providing for a partial payment of untaken sick leave on resignation or retirement. The Good Doctor and her Executive Team resolved that from 11 May, they would freeze those entitlements. None of them had wondered how those entitlements were created, whether they were a council resolution or, as it was put to us by a temp, a decision of HR, or whether they could be unilaterally changed by decision of the boss.

We tried to talk to them, it was like talking to a box of rocks. We had the twelve month temp replacing the capable and much-loved HR manager on parental leave (welcome back, Holly), and a grossly inexperienced HR person – aah, the innocence of youth and self-confidence - who when we did ask about the archives told us that the Council didn’t have any obligation to keep records of any Council body that preceded it. D’oh!

And when we said we would need to go back into the archives because it appeared the policy may have been established way back in 1980 or earlier, the temp accused us of “fishing”, deliberately provocative, it meant we filed a dispute that day.

Five compulsory conferences later, the Council understood why the history had to be researched; maybe understood the concept of contractual obligations; had agreed to do a search of the archives; and agreed to do so with union representative “scrutineers”, so that the unions could be satisfied that the search had been done properly; discovered the policy was a resolution of a Council meeting in 1980 and on that basis couldn’t be unilaterally changed and agreed to a proposal we’d originally made when we filed the dispute to look at options that might encourage employees to voluntarily cash out their existing entitlement; the CEO had attended once under direction of the Commission and in the end the Commissioner cautioned the Council that on the basis of what he’d been presented with, the unions had a 99.999% chance of winning if the Council didn’t reach agreement.

In all, we have written three reasonable and reasoned letters to the CEO and she hasn’t replied to any of them. The last, almost in desperation, was motivated by one of her books, “How to Stop People Stealing Your Joy”. Provided in an email with the subject “Stop thief”, it quoted her wisdom and in response to her words “Your dreams and your hopes are yours to keep” and depa’s role in trying to stop the theft from our members, we’d observed that “it seems incongruous that the thief is at the same time the person encouraging them to protect their dreams and hopes against thieves. How does that make any sense at all?”

 In the Commission, she had been asked why she hadn’t replied to that letter and she said she hadn’t because it was “too personal”. She hadn’t replied to the others that weren’t personal at all anyway.

Things have settled now. Cooperatively the unions and the Council have developed a couple of options for employees to consider which are still being fine-tuned. If the Council wants to reduce their continuing financial liability, because it is a contractual entitlement, they can only do it by consent of the individual employees and making an offer for them to sell their entitlement, as done for years by other councils with similar situations. We continue in a cooperative manner, with the temp having moved into another job as the HR Manager returns from parental leave and things, we hope, return to normal.

There are other things as well, they purported to make changes to car practices that are being unpicked at the moment, and have a significant issue about sick leave and workers comp in the compliance area.

It’s time to take the CEO’s advice and feel our stone. Affirm our stone. Or look for answers under a rock, or sticks and stones breaking our bones, or not casting the first stone, or dealing with a heart of stone, or a rolling stone, or a stepping stone, or even a stone’s throw away. Or sensible advice about people in glass houses, or getting blood from a stone, or being carved in stone, or hitting a stone wall, or killing two birds with one stone, or leaving no stone unturned, or a stone’s throw away, or constant dripping wearing away a stone. Or stone the bloody crows.

Or being well and truly stoned. Now that’s metaphysical.

Sutherland Shire

Sutherland won it last year for the CEO and HR’s failure to properly protect one of our members, who had been foully abused by the former Mayor Councillor Pesce - the second time this councillor had done that. He had done so to that member’s manager a couple of years earlier and all because they were doing their jobs picking up significant building and health concerns with his three cafes. And then this time the manager, in escalating the matter and protecting his employee, ends up pursued for doing the right thing, rather than Councillor Pesce for having done the wrong thing.

It can’t be a coincidence with councillors behaving like this that in the last month the Council has had both their Managers of Assessment resign to go elsewhere. There is also a cultural issue of the CEO not coming down hard enough on councillor involvement and behaviour and a degree of hypocrisy about what constitutes acceptable language and where unacceptable language is inappropriate.

Councillor Pesce has still not apologised and to protect Sutherland EHOs, the Council signed a Memorandum of Understanding with Georges River (who also have some problem conflict-of-interest councillors) which meant that the cafes were inspected by EHOs from Georges River, who were able to compile a list of breaches and shortfalls without being abused or threatened.

It can’t be a coincidence when councillors behave like this, that in the last month the Council has had both Managers of Assessment resign to go elsewhere.

This year we’ve had some glaring HR failures. One member had started work at the Council after being offered a market allowance, and then two and a half years later, when the Council tried to argue that the market allowance was in fact a car allowance (!), we were able to ensure that the member was back-paid for ten quarters of the Award car allowance of $2145 per quarter. Just as well the member emailed us and questioned it.

Then members questioned payment for acting in a higher grade because there was an inconsistency between HR’s policy about how it should apply, and the provision in the Council’s Core Enterprise Agreement. Given that the EA has the force of law, it’s either an ignorant or arrogant HR department to think otherwise.

So we’re involved again, cleaning up whatever it is HR had been doing. This time a new Director acknowledged a long history of underpayment, and guaranteed that everyone would be paid properly. As this is all manually done, they’ve started with paying those members who acted in higher grade in jobs from 2020, and now will go back, potentially for seven or eight years.

Finally, and maybe motivated by our exposure of their underpayments under the Core EA, the Council wrote to the unions proposing a review of the Agreement. Something relatively easily done, and prudent anytime for a document that is twenty something years old, but the Council intended that the negotiations be conducted by a commercial law firm with Council directors looking on. Like they’re at the tennis.

Those commercial lawyers proposed that we all sign up to “Good Faith Bargaining Principles” in which, amongst other things we would agree to “refrain from using threatening or abusive language, profanity, language or communication that is intended to be, or is perceived by others to be, demeaning, berating, rude, threatening, bullying, intimidating, hostile or offensive.” OMG, FFS etc! And yes, a standard not required by the CEO of her favourite councillors.

The CEO was accusing the unions of being unable to conduct enterprise agreement negotiations without being under some kind of good behaviour bond. The original agreement was negotiated in goodwill without such a problem and we’ve always managed to negotiate EAs across the industry between union representatives and representatives of Management, and sometimes Management might seek some advice from lawyers, but never have them negotiating.

The unions resisted, all of us offended by the assumption that we couldn’t conduct negotiations with difficult and unpleasant people as the professionals we are, and the review has not proceeded.

What a mess, someone in management/HR thought this made sense…

Sydney City

Sydney City has been nominated every year since 2014 except for last year. This year they get nominated again.

The City has refused to incorporate clause 9(i) into the City Wages and Salaried Staff Award, and in doing so their position has been recorded on the spreadsheet of the interminable negotiations and the progress or otherwise on each of the claims that “depa would like clause 9 of the LG State Award inserted into the City’s Award. The clause commits the City to providing adequate resourcing...”

The City says “the clause does not add value over management prerogative and guidelines that already exist” and their “Concern - The clause would require the City to demonstrate that resourcing was adequate if challenged”!

It says something about an employer that they would resist a provision in the State Award that obliges them to provide adequate resourcing. But it says more about the City when they say it doesn’t “add value over management prerogative and guidelines that already exist”, and then, despite requests from the unions, they haven’t provided what they say to be details of the management prerogative or any guidelines. Could be a pants- on-fire moment.

It’s the usual thing with the City, a progressive façade on climate change, lifestyle, transport and inclusion behind which sit tyrants relying on the ancient concept of managerial prerogative, guidelines they say that exist but they won’t provide, and a fear of having to demonstrate resourcing was adequate if challenged.

And the winner is

Sydney would be a worthy winner for keeping the façade going, and for consistency since 2014, Sutherland is consistent as well and always plumbing new depths, it’s prudent not to disclose much about Lake Macquarie because there is a Workers Compensation case to be resolved in February, we get our day in Court with Newcastle on Thursday, so the winner is Narrabri, and their imposing and influential GM Stewart Todd.

No other Council anywhere, ever, has had such a high level of resignations over two and a half years - not just getting rid of the Director of Environment and Planning but then having him followed by the resignation of the Manager Building and then reshuffling and making redundant the Manager Environment. Not much health, building and planning expertise there these days.

He has provided great services encouraging mobility in employment for those forty employees but at significant cost to corporate knowledge and expertise for the Council and the community. He has been an industry example how not to appoint and terminate senior staff by breaching responsibilities under section 337, and was responsible for OLG ensuring a notice to all the industry so that they didn’t make the same mistakes. He unsuccessfully ran a test case trying to prevent all senior staff across the state, potentially forever, for not having access to a tribunal to test the procedural fairness and otherwise of “no reason” terminations. Well done, Stewart.

Time is running out for dodgy developers - and dodgy builders, certifiers, and engineers too

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Published: Monday, 29 November 2021 11:00

In our April issue we complimented the Building Commissioner for the prohibition orders since December 2020 and an Enforceable Undertaking that week which prompted our article. Courageously on the Building Commissioner’s website they claim they are “Leading a once-in-a-generation reform of the design and building industry”, a bold call but the evidence of achievements so far is very impressive

And it just keeps getting better. In the next week or two the NSW Government will announce a rating system for developers. A crash hot, capable, thorough and honourable developer could get five stars, others will struggle to get one, or even a half. But it will mean for the first time that when consumers buy off the plan, or even after construction, they can make an informed judgement about the risk associated with the developer who constructed the building, based upon those stars.

A survey of more than 500 apartment buildings in NSW earlier this year found 90% of Strata managers or nominated members of Strata committees would not recommend buying a unit off the plan to a friend or family member.

We met with building Commissioner David Chandler on 23 November at a meeting organised via an introduction from LGNSW CEO Scott Phillips. Originally scheduled for half an hour, we finished just short of an hour and a half. It was a very impressive experience.

The SMH that morning had reported proceedings the day before in David Shoebridge MLC’s Upper House Committee. David Shoebridge is really the Leader of the Opposition in NSW and proceedings in the Upper House Inquiry provide Parliamentary privilege to witnesses.

Shoebridge had asked the Building Commissioner some questions and he didn’t hold back. He accused the builder of the Opal Tower of being involved in multiple projects across the city which are “embroiled” in legal action with apartment owners over alleged defects.

He had also received what he described as an “audacious” request from lawyers for the builder, Icon Co, “to relinquish his powers to refer directors of the corporate watchdog if he determines that they have not acted properly”.

The SMH quotes Mr Chandler saying, “The moment I got this I just looked at it and said, ‘you are joking’. I basically said, well good luck with that. I’ll see you in the Supreme Court ...”

It was the Opal Tower and the Mascot Tower that’s forced the NSW government to do something about the construction industry and establish a building watchdog. This is no lapdog, this is a seriously dangerous, carnivorous watchdog, pursuing those damaging the reputation of the construction industry.

He had also said, “why don’t you stop spending your money on litigation and go and fix the defects … If you simply added up all of the litigation that is surrounding these five projects it’d be a very large number”.

Given the way NSW Government has managed building and development historically, and particularly over the last three or four decades, it seems extraordinary that they would have acted to establish a watchdog with such overwhelming legal powers and capacity and they are continuing to build its resourcing. Too bold for Labor. 

In describing the proposal to rate developers and builders of residential buildings, Mr Chandler told the enquiry, “this is monumental. It will be long-lasting, and it will be game changing. This is a regulated rating system as opposed to a Trip advisor-type system”.

Notably he also told the enquiry that there was “potentially 10 developers, 10 builders, 10 certifiers and 10 engineers that probably represent 80% of the defects that I’ve seen”

Here is a link to the SMH article..

“The glorification of greed has left Sydney with a vast backlog of misery”

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Published: Monday, 29 November 2021 11:00

While Elizabeth Farrelly, the incomparable SMH columnist, author, architecture critic and essayist writes beautifully and compellingly about nearly everything, she saves her best for when she writes about developers. And she did precisely that in the SMH weekend edition on 27-28 November.

Enjoy this and the first five members to email us to say that they loved it will receive a copy of Ms Farrelly’s book Killing Sydney - The Fight For a City’s Soul.

Most Councils moving towards mandatory vaccination

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Published: Monday, 29 November 2021 11:00

depa supports it, the sooner the better, and no one should be going to a council counter or workplace who isn’t fully vaccinated. The evidence is now that it won’t be long before 95% of Sydney over the age of 12 will be fully vaccinated and before school returns in 2022, vaccinations will be recommended and available for kids over the age of 5.

LGNSW has been cautious, as have the other unions, concerned with the rights of individual members but, at the same time, the rights of the majority to demand a fully vaccinated workplace. That’s a difficult position to manage.

Councils have surveyed staff and found high levels of support for mandatory vaccination and deadlines are being set out into January, and potentially February, when non-vaccinated staff will be prohibited from returning to the workplace. They won’t be made redundant, their employment will be terminated by the employee refusing to accept a reasonable health and safety requirement of the employer.

The initial 10% of people claiming they won’t be vaccinated was analysed by advertising expert Dee Madigan in an episode of Gruen, and she believed that of that 10%, half of them could be won across to supporting vaccination, but it was a complete waste of time to talk to the other half.

An ultimatum to vaccinate or lose your job is pretty persuasive!

That seems to be true of local government and as we see from news reports on demonstrations of people calling for “freedom” and individual rights, and railing against discrimination, it’s an argument that for some people will be impossible to accept.

While it seems improbable that depaNews would have ever quoted Senator Jacqui Lambie, it’s hard to go past her refreshing assault on those opposing vaccination in the Senate on 22 November:

“Being held accountable for your own actions isn’t called discrimination, it’s called being...a goddam bloody adult... It’s putting others before yourself. And that’s what this country is supposed to be about”.

Go Jacqui! Timely advice with a fourth wave out of control in Europe, and now Omicron …

Yes, permanent employment for senior staff is great news, but when?

Details

Published: Monday, 29 November 2021 11:00

On 10 November we advised the Office of Local Government at the Employment Reference Group meeting, of the historic consensus between the unions and LGNSW to transition senior staff into continuing employment under the Local Government State Award.

There are changes that would need to be made to the Local Government Act and decisions would also need to be made about when senior staff would transition into continuing employment after the legislative changes were made. OLG has asked for a comprehensive consensus position on all of these considerations. Lots to talk about.

Realistically, if the unions and LGNSW have already agreed with the ICAC recommendations from Operation Dasha that there is a corruption risk in having directors as senior staff and capable of being terminated for no reason, then the legislative change, once it does happen, should start operating relatively quickly. If the industrial parties accept it’s a corruption risk, and have now agreed to fix it, it should be fixed.

The package of proposals is intended to be provided to the Minister for Local Government before the end of the year. We have a high expectation that the Minister is able to have the Government agree to those changes quickly. This will involve a decision of Cabinet, the drafting of amendments by what is still called the Parliamentary Draughtsman (sic) and then getting in the queue next year with all the other legislative changes.

The Minister may well want to allow a period of consultation. This will allow those general managers who should be rejoicing that they will now be protected from pressure from councillors to sack the Director of Planning, but who can’t quite get past losing their power to unfairly sack directors, to have a say. That’s all well and good, if there are GM’s opposing it, we should know who they are. It’s like the overwhelming evidence that people want to be able to identify trolls.

There are also GMs who will need to be educated about the Award so they understand that the Award provides for performance agreements and other things about which they have little knowledge or understanding.

The unions and LGNSW will meet on 30 November.