This has to be the final nail in the coffin for the standard contract
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- Published: Wednesday, 18 May 2022 12:55
The historic consensus between the unions and LGNSW to get rid of the standard contract for senior staff (other than the GM) had momentum from the moment the agreement was reached. For five years or more, the OLG CEO at the time Tim Hurst, had repeatedly told us all we needed to do was present a consensus position, and OLG would act on it.
Maybe he was taunting us, expecting that would never happen, but it has happened. On 15 October 2021 the LGNSW Board, after taking advice from their Industrial Advisory Committee and officers of the ICAC, resolved to support removing the second layer of councils from senior staff and the historic consensus was established. Pow, off it went!
And the momentum increased when LGNSW’s Special Conference on 1 March considered a rescission motion by reactionaries and barbarians at Mosman Council, and overwhelmingly reaffirmed their commitment. At last, the risk identified by the ICAC in reports on Mid-Western and the former Canterbury could be properly managed.
Things move slowly with OLG at the best of times and since October last year the issue gets regularly pressed for a bit more action at the six-weekly meetings of the OLG’s Employment Reference Group with the unions and the LGNSW.
But now, LGNSW has raised problems with the standard contract that are now more evident with the eighteen or so GM’s who have been terminated or left with a negotiated settlement after the last local government elections. Those problems are so significant that they must be the final nail in the coffin.
When a GM is sacked, or moves on, the Council appoints one of the directors, invariably on a senior staff contract to the job temporarily while they appoint a replacement. This is the first problem. The minimum period in the Local Government Act for an appointment to a senior staff position is twelve months but councils have been ignoring this requirement, thinking they had an option under the Local Government Act to do this, when they don’t. Some councils have attempted to avoid the problem by trying to make it a temporary appointment under the Award, but that doesn’t really work either.
And the second problem is that because the standard contract of the Director appointed temporarily (leaving aside that this is not legally available under the Act) provides that there are only two ways that the employee can receive a pay increase - either the annual SOORT increase in common with senior executives in the New South Wales public service, or the annual review. There is no capacity to pay anyone on the senior staff contract to act up in the higher position but every Council who has done this, since the senior staff contract was created, has done it outside the provisions of the contract. Uh oh …
So, you can’t temporarily appoint someone, and if you do so anyway, you can’t pay them unless you can find a way around it. How has this flaw continued for so long?
A mischievous lawyer might tell you that if it is not allowable under the employment contract, but the Council resolves to pay money anyway, then it is unlawful and could trigger action under the dreaded and threatening Division 2-Surcharging where the OLG has the capacity under section 435 to disallow the expenditure and surcharge the councillors or the staff for the amount disallowed.
The contract is now indefensible and OLG and the Minister need to ensure that the legislative changes necessary to leave only the GM as senior staff on the standard contract happen this calendar year.