Slowly getting somewhere on “superable salary” dispute

 

depa’s dispute with LGNSW on behalf of New South Wales councils about whether or not councils have been including a value for private use of a car in the Superable salary of those in the two closed defined benefit schemes within LGS rolls on but, getting closer to a solution.

This has been a massive research exercise preceded by significant information and assistance to councils earlier this year to ensure that councils did include a figure for private use of a Council car in superannuation calculations. Now that everyone was focused on the question, it was important to get 2018 right.

The dispute will resume in the IRC before Chief Commissioner Kite on 5 November where we will be able to advise the Commission of progress, in particular, with those 153 members of ours who provided an authority for depa to pursue the matter for them and have access to what might be regarded by either LGS or councils as private information.

It’s true to say that LGS, after changes to the Trust Deed in 2003, didn’t pursue councils to ensure that they were calculating a proper value to be included in the salary of employees in these two closed defined benefit schemes. We all make our best decisions with hindsight, and it would have helped for LGS to have been more vigilant to ensure councils were complying with obligations under the Trust Deed, LGNSW should have pursued it to ensure councils were doing the right thing, so should the unions and importantly, members of the defined benefit schemes have learned an important lesson about individual responsibilities.

Everyone else was assuming that it would all be done properly but it would have been a good idea for members of those schemes to pay attention to what was written into their annual superannuation statement and to check for themselves.

What we now know is that a minority of our 153 members (and therefore other relevant employees at those councils) received a positive value in their superable salary calculations for 2018. Ranging from an improbable low of $41 up to a luxurious figure beyond $14,000. We don’t yet know whether those councils did similarly in preceding years, and this is still being pursued.

But because all a council needs to do is to put a figure on the value, most councils which have considered the position have concluded that the value is net zero dollars, the private value to the employee of the car being equivalent to pre-tax leaseback payments made for the use of the car.

We have emailed all our 153 members in this group so they all know where they fit in the three options: namely, a positive dollar value to increase the superable salary, a “net zero dollar” value based upon calculations cancelling out the leaseback fee and sadly, a do-nothing group of councils which didn’t bother to do anything. And because it’s a discretion for the employer to put in a figure, putting in zero counts.

And there’s really no point running a dispute to move members from the category where councils ignored it entirely and concluded it was zero dollars into the category of “net zero dollars”.

The dispute continues, LGS is continuing to pursue whether those councils that did include a positive net value in 2018 have also done it in the past and are moving onto reviewing those who may have left the fund to see if there are implications for them.

(Please note this dispute applies only to members of the defined benefit schemes that have been closed for close to two decades.)

NSW unions challenge NSW Government in the High Court

Unions are collectivist organisations which recognise the value and strength that flows from membership and action. Similarly, unions affiliate to peak bodies like the ACTU federally or, like us, Unions NSW, primarily focused on NSW unions and branches. Some NSW unions, like us, don’t make political donations but many, almost, do.

Everyone will have seen campaigns run by the NSW Nurses, or the Teachers Federation or the PSA about privatisation, staff numbers, beds, class sizes or whatever. All usually damaging television and media campaigns against whichever government may be in charge.

The Electoral Funding Act 2018 was introduced by the NSW Government to restrain unions and other third-party campaigners from participating in election campaigns. Previously, third-party campaigners could spend up to $1 million but the 2018 legislation reduces that limit by half, to $500,000. It also changes arrangements so that if a number of unions combined together, the $500,000 limit still applies. Clearly this is censorship, a political attack against unions participating in an election process and, based upon legal advice, probably unconstitutional and illegal. So it’s off to the High Court.

In 2013 Unions NSW ran a similar case in the High Court securing a declaration that the O’Farrell Liberal Government’s restrictions on political donations by individuals were unconstitutional. Unions NSW has resolved to launch a similar challenge to the 2018 legislation because it squarely targets unions and union members, to gag them and make them less effective in protecting the interests of their members.

The depa Committee of Management resolved unanimously to participate in the funding of the challenge. $5000, to be precise, estimated as our share of the cost of a successful challenge. Or $10,000 if it’s lost. The other local government unions are also supporting the case.

Unions NSW arranged a demonstration of affiliates gagged outside the court when it first came on for directions before the High Court in Sydney on 26 September. The case resumed on 23 October, with the High Court confirming that it will refer the Unions NSW challenge to a full hearing in December, with South Australia the first of several states expected to intervene. Unions NSW has sought an expedited hearing to have the matter resolved before next year’s State election.

You may have already seen media about this important challenge but now you know you have skin in the game.

Oh no, now the NSW Government has asked whether we think "there is a greater risk for conflicts of interest to arise in private certification work and result in poor certification …"

It’s always nice to have a wide vocabulary, having just the right word, or words, ready to be plucked out for every circumstance. Serious, business-like, charming, funny, kind, amusing, technical, professional, assertive, aggressive, robust, respectful, disrespectful and colourful words from which to choose the right one. It’s all about appropriateness and place, so you need a good range for all the different places and circumstances you find in life.

In the depa office, we love the concept of evidence-based research, so we also loved Emma Byrne’s book, “Swearing is Good for You: The Amazing Science of Bad Language”, which scientifically and thoroughly demonstrates that bad words, obscene or profane, or generally unacceptable language has many positive virtues - a wide range of benefits from promoting trust and teamwork in the office to increasing our tolerance to pain. Even some great research on not holding back during childbirth. You have to listen to the scientists, don’t you.

So, after vigorously opposing the introduction of private certification from as early as the 1980s and without ever compromising, constantly and consistently for almost three decades, when the NSW Government’s Improving Certifier Independence - Options Paper arrived in our office, we were not lost for words.

Seriously, don’t these people ever look back at history? How could anyone think that an organisation like ours, which has steadfastly criticised private certification for three decades because of the unavoidable underlying conflict of interest of a developer paying their own certifier, think it made sense to ask us?

With proper reverence to Monty Python, our office was the right room for an argument:

Policy Kiddie:  Is this the right room for an argument?

depa:               I told you once.

Policy Kiddie:  No you haven’t!

depa:               Yes I have.

Policy Kiddie:  When?

depa:               Just now.

Policy Kiddie:  No you didn’t!

depa:               Yes I did ...

in the 1990s, among other things, including being briefed by the Commissioner of the Victorian Building Control Commission who said “this sort of half-baked system will involve massive headaches”,

and with an unprecedented group of local government, union and community and environmental activists,

in publishing posters like this as part of our campaigning,

in the 2000s in a succession of enquiries, investigations, the setting up of the Building Professionals Board, the establishment of a process fruitlessly attempting to create independence of private certifiers who could never be independent,

inevitable fine-tuning of that, FOI applications against the Minister for Planning because he was telling us porkies, and the information we received in response proved that Cabinet had adopted lots of things before it went out for consultation but no-one told those involved in consultation that the decision was already made and we made them fess up,

in arguing against the accreditation of council staff from the mid-2000s and continuing, how the BPB wanted to accredit them and, in the famous Neil Cocks white board story, the BPB relishing the prospect of an income stream from 800 more accredited certifiers,

the 2015 Independent Review of the Building Professionals Act 2005,

and this year arguing about the proposed Building and Development Certifiers Bill 2018 …

Policy Kiddie:  Um, I’m not feeling safe ...

It’s an interesting Options Paper. In its early pages it contains concessions like:

“there are community concerns about certifiers, particularly private certifiers, being unduly influenced by the builders and developers they work for, given the certifier as being paid by the same party that they are supposed to be independently overseeing”, and

“the certifier has the potential to be affected by the inherent conflict that exists between maintaining a private certifier’s regulatory responsibilities and fulfilling their own commercial interests”, and

“certifiers can become reliant on the same entities for work, and these financial relationships may, over time, impact on the ability for the certifier to make impartial decisions” and

“this is particularly the case where the decision of the certifier may result in a substantial negative impact on one of the parties involved”, and on and on it goes.

Seriously, FFS. We don’t blame new generations of policy people having a bit of a go at things the previous generations have had a bit of a go at, but one of the costs of downsizing the public sector in the last couple of decades has been that there is no-one left to remember, to know where the files are, to know who was involved in consultation and policy-making in the past, how extensive or superficial considerations may have been, or even to know whether records are kept.

It’s all now in the hands of kiddies in policy without access to the past, compromised further by 30 second news cycles and bloody focus groups driving political decision-making. It’s not their fault, they just assume they are doing it for the first time and don’t give sufficient regard to Mr Garrison’s maxim “there are no stupid questions, just stupid people”.

(If you are interested in this phenomenon and the degradation of the public sector, check out Laura Tingle’s Quarterly Essay issue 60 in 2015 “Political Amnesia: How we Forgot How to Govern” for a superb analysis of the betrayal of the capacity of the public sector to develop policy by a succession of governments.)

In the 1990s an unprecedented group of organisations came together to oppose the NSW Labor Government’s plans, chiefly through Planning Minister Craig Knowles, to introduce the option of a private certifier instead of a proper regulator employed without a financial interest. We were part of that - together with the Australian Consumers Association (publishers of Choice), the Australian Conservation Foundation, the Total Environment Centre, the Nature Conservation Council, the other local government unions, LGNSW, Unions NSW and even the predecessor of the Local Government Managers. It was local government united, without dissent, unprecedented and never has such a broad coalition been assembled since. But it lost.

But the Labor government pushed through, it was waived past by the Coalition Opposition with a few observations expressed about community concern, “flaws but the government has failed to address them in spite of the fact that there’d been many months of consultation” and “the Opposition shares local government and community concerns that private certifiers employed directly by developers could have their capacity for independent decisions compromised.”

The ICAC submitted “private sector consultants to act as inspectors on behalf of local councils could raise new opportunities for corrupt conduct to occur. The ICAC believes these issues need to be addressed in the proposed legislation”. They weren’t, of course.

To summarise a long history, the Director-General of the Department of Local Government at the time famously said that the system would collapse within five years. He was wrong, it was collapsing after three and agitated members of the Legislative Council were moving to set up their own investigation where the government wouldn’t have the numbers. This forced the government to pre-empt and control the emerging calamity by setting up the Campbell Enquiry into the Quality of Buildings.

And relentlessly, consistently on message, strident when we needed to be, we hated a system that, regardless of what steps could be taken to manage risks, propriety and independence, the developer still paid the certifier. And nothing has changed.

We’ll lodge a brief submission in response to the Options Paper but really who cares whether it’s Option 1, the wheel of fortune rotation scheme, or Option 2 the cab rank scheme, surely to be joined later by the Uber scheme, or Option 3 the time limit scheme? Why not all of them?

In the end, the fundamental and compromising conflict of interest - the developer paying/paying off their own certifier continues. It was the fundamental problem identified 30 years ago and it continues. It always will.

Put in a submission if you like, there are 27 questions to answer!

Submissions close at 5pm on 30 October to This email address is being protected from spambots. You need JavaScript enabled to view it.

But what do the regulators do?

 

The Australian Prudential Regulation Authority is charged with the responsibility of regulating superannuation funds and ensuring their compliance with the Superannuation Industry Supervision Act 1993.

As I’ve spent 16 years as a director on the LGS Board from its inception in 1997 to 2013, I’ve enjoyed a good relationship with APRA and what can be their personal views pushed as government policy, or the “house view” of the regulator.  To an extent, that relationship continues.  depa is one of the shareholders of LGS Proprietary Limited.

In recent years APRA has published their own assumptions about the benefits which flow to industry superannuation funds by including purportedly “independent” directors on the board to complement the normal “equal representational model” of equal numbers of employers and employees.  They regard it as best practice even though there is no evidence yet published to support that view.

It’s hard to talk about the regulator when every meeting or discussion begins with their disclaimer. Not a financial disclaimer about all the risks you take in dealing with them, but a reminder that so much of what they do, and so often spoken of only in a general and non-specific sense because that’s how you get the best responses, is subject to section 56 of the Australian Prudential Regulation Authority Act 1998 “Secrecy-general obligations”.

This section provides a series of offences which involve criminal penalties including imprisonment for up to two years. Not for me the risks of the showers, thanks!

And it is a strange irony that the SIS Act requires “a general flavour of disclosure” by superannuation funds supervised by it.  When a fund’s commitment to disclose clashes with a regulator’s potential restrictions on confidentiality, and is fraught with risk of imprisonment, it’s hard to disclose and be transparent on things members have a right to know about.  Or to know what can be said and can’t be said, and the reason why.

So, say no more, as they say, maybe next issue...

Don’t think banks should be involved in Super?

 

Given the Royal Commission, who would? But sometimes, while it’s been hinted Government needs to do something about separating off financial planning and superannuation from banks, these things do need a bit more encouragement to give them momentum.

The ACTU, now rebranded as Australian Unions, has a petition calling for precisely that.

If you’d like to sign the petition, use this link.

No wonder this lot didn’t want a Banking Royal Commission

 

Pressure for a Royal Commission into banks had been building up since 2014 when a Senate report called for one and the big banks started apologising for giving poor financial planning advice. Former PM Malcolm Turnbull had rejected the idea repeatedly, the banks themselves were horrified at concepts of transparency and disclosure and the politicians of the Coalition were doing all they could to kill off the idea.

But a threat by a number of Coalition members to move a private members bill to bring it on forced the Government’s hand. Supported by the ALP, the Greens and other independents, the Government would have lost the vote.

Queensland Senator George Christensen talked about the Government “having to be dragged” into a Royal Commission and if there is a senator capable of dragging people anywhere, it would have to be Christensen.

All the usual suspects defended their institutions. The Coalition had for decades opposed compulsory superannuation and industry superannuation funds because, in their view of the world, only bankers, people just like them and traditionally aligned to their side of politics, should have a monopoly on managing that kind of money.  Their hostility to industry super, the not-for-profit model and equal representational boards representing employers and employees in the industry, was venal and borderline psychopathological.

Former Financial Services Minister Kelly O’Dwyer, pictured above, had opposed it and called the faintest suggestion “reckless and ill-conceived” in 2016, opposing it all the way until it was inevitable and then, even after it was announced, unlike many others from her side, not accepting it had been a mistake to delay it so long.

Former PM Turnbull, himself a banker in a former life, after accepting the political reality acknowledged it had been a “political mistake” and it would have been good to start investigating the banks’ wrongdoing much sooner.  One of the great understatements of the last 10 years.

And Former Treasurer (and still PM this week) Scott Morrison refused to support it. In 2016 be dismissed calls to have an inquiry a “populist whinge”, and later described those wanting his apology for opposing and delaying it as “political point-scoring”.  Not a bad point though eh, Scott.

Former PM John Howard, a vociferous supporter of the banks and opponent of industry super called the idea of a Royal Commission “rank socialism” in encouraging his side to oppose it. 

Former Immigration Minister at the time Peter Dutton responded to the announcement of the Royal Commission that it was a chance to scrutinise industry super. He told Ray Hadley (a Sydney radio blowhard) hours after the announcement that the Royal Commission was “regrettable” but it would be a chance to investigate industry super funds “which have union members and whatnot on the board.”

Dutton said “I think people lose a lot of their super through fees and through donations and all sorts of support for unions. So I think it’s a good opportunity in that sense to have a look at the detail and people can put all of that information forward and we can see the recommendations from the commission.”

We all knew prior to the Commission that superannuation funds owned by the banks on average underperform industry super funds by 2% per year over the last 15 or 20 years. Well, all of us but Peter Dutton, but as things were revealed in Canberra last week, he does struggle to get the numbers right.

The Australian Bankers Association said the Royal Commission was “unwarranted” but the popular support for an inquiry created an “unacceptable risk” to the reputation of banks and the financial system.  Famously, the ABA said “our banks do not fear scrutiny or accountability”.  We don’t believe them.  Those who opposed the Royal Commission would have been well aware there was much to hide, but the revelations were astonishing.

We’ve all watched the Royal Commission play out. No bank has survived this unscathed.  Multiple witnesses from the big banks and insurance companies confessing to wrongdoing; fees for no services; financial planning fees for people known to be dead; NAB and CBA now at risk of criminal charges over breaches in their superannuation arms; chronic failures to reduce fees with deadlines on the introduction of My Super; conflicts of interest; a failure to have superannuation Trustees independent of the bank that owned them; misleading the regulator, tampering with financial reports and claiming they were independent; a CBA executive agreed CBA would win a “gold medal” for charging customers for financial advice services they didn’t receive, and refunding $118.5 million to customers for this conduct; “hopeless” systems so they  couldn’t identify occasions where customers were charged inappropriately for advice; CBA fined $700 million for breaching money-laundering and terrorism laws 53,506 times providing millions of dollars to drug importers; fraudulently setting up thousands of children’s bank accounts to earn bonuses and meet aggressive performance targets, with the CEO trying to trivialise the scandal by saying that the money taken from the kids “was small or loose change”; by ANZ’s figures the bank’s bad financial planning advice had increased by a multiple of 40 from 2008 to 2016 from 60 to 2499 cases; financial planning without consideration of the primary interest of the client; ANZ knew from 2013 to 2015 11% of their Millennium3 advisors and 6% of their financial planning advisors were rated at “high risk” of not providing appropriate advice; and on and on; NAB impersonated customers, forged their signatures as it drew customers’ money without their permission... Bloody hell, it never ends.

But as Adele Ferguson, writing in the Sydney Morning Herald on August 25-26 said, all “while there were few adverse findings made against the industry funds examined during the hearings earlier this month.”

It does beggar belief that anyone would voluntarily choose to pay superannuation into an account managed by the banks. Many employees have no choice in their employment but just for fun, try to Google who the trustees are in the superannuation offerings of the four big banks.  You won’t find them.

But trustees and industry funds are publicly identifiable and examinable. Not only that, their returns are so much better. All this evidence compromises the integrity of the historic antagonism of the Coalition to industry funds and their slavish defence of the banks.  This must change.

Councillors on interview panels

One of the people of interest being investigated is the former Director of Planning Spiros Stavis. Two days of evidence last week and listed for a further five days of evidence this week, Stavis is under intense scrutiny.  It was revealed that he was in serious financial trouble when he applied for the job of Director of Planning at the former Canterbury. 

As part of that process, he exchanged text messages and met with the former GM Jim Montague and the two councillors Michael Hawatt and Pierre Azzi, was provided with “sample questions” prior to the interview and was interviewed by a panel that included those two notorious fitness fanatics.

The 1993 Local Government Act dramatically drew a line between the role of councillors and Council and the role of the general manager. No longer was the old town or shire clerk the chief “administrative officer” pushed around by councillors, the general manager was the chief executive officer.

Councillors were restricted to the establishment of policy and the day-to-day operation of the Council was legislated as a clear and unequivocal responsibility for the GM.

The Council has a responsibility under section 8A(1)(i) to be “responsible employers and provide a consultative and supportive working environment for staff”.  That’s a pretty recent amendment, so if it’s not clear your Council is doing that, maybe they haven’t caught up yet? 

Other than that broad responsibility as part of the exercising of general functions, the Council is required at 332 to determine the structure but only in so far as the senior staff positions and the roles and reporting lines of senior staff. That means, the Council determines the number of directorates, or Deputy GMs or whatever.  And that’s it.  The rest of it is the GM’s call.

(As an aside, we know there are examples where councillors, particularly the Mayor, do have a role in the structures and the appointments below the senior staff level. That’s a clear breach of 332(1A) but a story for another day.)

Section 332 provides their final responsibility - to be consulted by the GM on the appointment and dismissal of senior staff by requiring that the general manager “may appoint or dismiss senior staff only after consultation with the Council.”  That didn’t happen at the former Canterbury - the two infamous councillors making contact with a candidate, meeting with him, exchanging text messages, apparently favouring their own candidate by ensuring that the GM provided questions prior to the interview and ensuring their bloke got the job by sitting on the interview panel.  Not a good look.

Councillors sometimes sit on interview panels across the industry but it should never happen again.

When we made our submission to the ICAC on 23 May offering solutions to the problems being identified in Operation Dasha, we stressed that we may have other suggestions after we see what was revealed in that investigation.  Clearly keeping councillors off interview panels and away from candidates needs to be part of our second submission as the grubby evidence continues.

“I need to see you at the gym”

 

Jimmy Maroun doesn’t look like a bloke who spends a lot of time looking after his body in his home gym, or anywhere else. Described in the SMH on 21 July as having “a smoker’s cough, a gambling habit, and a fondness for parties”, he is the subject of interrogation at the ICAC for his propensity to arrange workouts in his home gym with his friends, former Liberal councillor at Canterbury Michael Hawatt and former Labor Councillor Pierre Azzi , who are being investigated by the ICAC.

We all know the disappointments of your body not quite responding as fast as you’d like to an exercise or fitness program, so we can sympathise with Mr Maroun, and we know people have invested heavily in home gyms only to find they haven’t had the results they were looking for and then wanted their money back, because they still look heavy-gutted and unhealthy.

But, as revealed at the ICAC, bank records show that anytime Mr Maroun texted the two former councillors “I need to see you at the gym”, his bank statements showed that he had withdrawn thousands of dollars of cash in the days prior to meeting his friends for a work out. And where the gym junkies’ bank records showed similar amounts of cash, in similar denominations, would be deposited into their bank accounts, days after the workouts.  Presumption of innocence and all that, of course, but uh oh …

The inquiry into the former Canterbury is a slowly unfolding multiple car crash from which it’s hard to avert your eyes. As a surprise bonus it’s already caught and brought down the member for Wagga Wagga, and who knows where else it could lead. After all, developers like Mr Maroun do work in other local government areas as well...

As further amusement, Mr Maroun was being interrogated by the ICAC counsel assisting and this transaction occurred:

Counsel:              I want to suggest to you that you’re trying to make out a state of ignorance which is very, very, very unlikely in your case...

Maroun:               a state of?

Counsel:              ignorance.

Maroun:               what do you mean by that?

Well, say no more...

Nick Kaldas to audit corruption risks in New South Wales planning

 

On 28 July Jacob Saulwick in the Sydney Morning Herald announced “the former deputy commissioner of the NSW Police, Nick Kaldas, will conduct an audit into corruption risks in the State’s planning system, following a string of high-profile scandals.

“Planning Minister Anthony Roberts has handed Mr Kaldas a broad brief to scrutinise risks in the system and ‘make recommendations in relation to the decision-making governance of state and local agencies’.

“The appointment of Mr Kaldas, who is to report at the end of November, comes on the back of the Independent Commission Against Corruption’s enquiry into the conduct of councillors and senior staff at the former Canterbury Council.

“This is about building a planning system that people can have faith and confidence in,” Mr Roberts said.

“We want to be held up around the world, that if you want a robust, strong and transparent planning system, have a look at NSW,” he said.”

Wow, the only people held up on planning issues in NSW are the hapless citizens of New South Wales - held up, hands in the air, metaphorically speaking, while their amenity, quality of life and relaxed neighbourhoods are ransacked, high-rised and looted by rapacious developers. And not helped by councils over-riding the recommendations of planning professionals because the government has not yet committed to introducing Local Planning Panels outside the Sydney Metropolitan and Wollongong area.

We all deserve so much better yet, but whether it be Auburn, or Canterbury, it just seems to get unspeakably worse.

The Herald article refers to terms of reference for the audit but these are not yet publicly available. We have already approached the Minister for Planning for the terms of reference and the opportunity to make a submission.  We also provided the Minister’s Office with our submission to the ICAC and our suggestions to reduce corruption in New South Wales planning.  It’s about time the Minister got his finger out as well.

We are delighted to see Nick Kaldas given the job. The bloke who should be the Police Commissioner always looked like he could sniff out a crook at a hundred paces, or places where crooks could do business.  And is there anywhere more lucrative than the planning system?  Go, Nick. 

And while we’re looking at what’s happening in Operation Dasha, here are three things that beggar belief:

The BPB is not just using “intelligence”, it has “intelligence cells”

 

There are spies and informants everywhere. In the May issue of depaNews we reported on the BPB’s acknowledgement that they can use multiple informants and intelligence in a way that challenged the original expectation of local government and the BPB about how complaints would be investigated.

It was always understood, because the BPB told us this is how it would work, that someone would make a complaint to a Council about a Council accredited employee and if the complaint was also made at the same time or subsequently to the BPB, then the BPB would acknowledge the investigation conducted initially by the Council and provide significant weight to the Council’s consideration in any action from it.

So, when we found ourselves with a member where an investigation had been triggered without any complaint and where the BPB was resistant to disclosing how the work of the Council certifier came to be the subject of an investigation, we had to find out what was going on.

We met with the Director of the Building Professionals Board Lynelle Collins and the Manager Investigations Sean Fagan. At least Sean has a history in local government (Parramatta and Blacktown to name two) and while he has been out of the industry for some time, he does know what certifiers go through on-site.  Ms Collins, initially reluctant to disclose anything was not quite so forthcoming.

To say that the reception Vice President Jamie Loader and I received was cool and unwelcoming makes it sound a much more warm and welcoming meeting than it really was. Talk about trying to get blood from a stone.  Gone are the days of the warm embrace of former CEO Neil Cocks and Chair Sue Holliday.

No concessions were made about why the investigation happened although we think our guess was right - that the Department of Fair Trading was already on site with a contractual argument between the owner and the builder, and why not look at other parts of the job while they were there.

Ms Collins said that there were many “intelligence cells” now that the BPB was part of the Department of Fair Trading. Pressed on exactly how many intelligence cells there were she said she was unable to answer that because the Department has multiple roles and in any event, there are plenty of other agencies involved on a site who may initiate investigations, such as the Police, the Fire Brigade or whatever.

In a way, while we joke about spies and spying, the reality is that the Department of Fair Trading (shortly to be part of Services NSW) presents the opportunity for a building site to be the subject of consideration in a way it never was when the BPB was a stand-alone board. While Ms Collins found it “alarming” that we wanted some specified number, we found it equally alarming that she couldn’t, or wouldn’t, provide one.  She said if we wanted to know we should have a look on their website.  You should have a look on their website too.

The upshot of it all is that we are spoiled for imagery now, because the BPB/Department of Fair Trading/ServicesNSW is now more like this:

The upshot of the investigation of the particular Council was that there were no findings made against the employee, so we can remain confident that accredited certifiers employed by councils are doing the job properly and, people who do the job properly have nothing to fear from regulators, many-headed or otherwise.

We think that Ms Collins must have received some unfortunate intelligence about us and our history on the issue of accreditation because while we were nothing but charming, that wasn’t quite how we were received. Maybe things will be better next time.

Next time you have a disagreement about professional opinion …

Hands up those amongst you who have not, at some stage, had a disagreement with a supervisor, or manager, or director or even GM, about your professional opinion. You know, where your professional opinion as an EHO, or building certifier or planner is rejected by the person you report to who presses you to recommend the opposite.

Too many examples come to mind in our office, including even a GM trying to direct a BPB accredited employee on the content of their decisions!

Section 352 (1) of the Local Government Act 1993 provides “a member of staff of the Council is not subject to direction by the Council as to the content of any advice or recommendation made by the member”.  A Council can direct a member of staff to provide advice or a recommendation but they are prohibited from directing its content.  That’s in 352(2).

This is an issue that comes up in a Council far too often. It’s awkward for an employee to deal with it, we recommend at the very least they keep proper records so that the paper trail shows that they did certain things but ideally, if the boss doesn’t like your professional advice, then the boss should take over providing the advice on the recommendation and sign it off themselves.

But wouldn’t it be nice if section 352 acknowledged that “the Council” also included those acting on behalf of the Council who regularly think it appropriate to direct an employee below them on the content of their advice or recommendation. We’ve been trying to talk the Office of Local Government into this. We have a long corporate memory and know that the Local Government Exposure Draft Bill did include that protection generally but it didn’t make it into the 1993 Act.

The Office of Local Government has agreed with our practical view and we now have their advice:

OLG would agree that where there is a difference of opinion between a professional planner and their manager on the content of a report or recommendation, the appropriate way to resolve this in practice would be for the manager to sign off on the report.

This is a real get out of jail free card for planners who can regularly be stood over to approve something that should be rejected, or reject something that should be approved and can apply equally to differences of professional opinion in public or environmental health or building control.

Don’t underestimate the value of this letter. Print it out and put it on your wall right in front of you and never forget that the OLG agrees that if the boss wants you to do something other than what you think is the right thing, the boss can make that recommendation themselves and sign it off.

This is not just a benefit of depa membership, it’s a protection for all professionals. Those who are not members can consider it a gift.

Farewell Ernie, thanks for everything

Ernie Page 18 February 1935 - 20 May 2018

Ernie Page was a comrade to me and depa and a friend of local government.  He was a community activist before the expression was invented, a councillor on Waverley Council for 15 years from 1962 to 1987 and Mayor for nine of those years, a member of the New South Wales Parliament representing the seat of Waverley from 1981 until 1991 when it was abolished, and then three more terms as member for Coogee.

Ernie was a lifelong member of the ALP, was active in his union the USU and was awarded life membership in recognition, was the Shadow Minister for Local Government for what seemed like forever and the Minister for Local Government from 1995 to 1999.  It was during this time he entrenched his position as a friend of depa, organised drinks in Parliament House for a freshly elected Committee of Management, regularly attended depa events, was always available for advice, assistance and to be lobbied, and was responsible as Minister for Local Government for establishing a consultative mechanism between Government and the local government unions and in the Five Year Review of the Local Government Act in 1998 recommended the removal of term contracts for senior staff - sadly, like some of Ernie’s best ideas, killed off by the conservatives in the Parliamentary Party and the Cabinet Office.

Ernie believed in and loved local government.  He knew how it worked, where it was deficient, where it should improve and what should be done to improve it.  And while appointed by Bob Carr as Minister in 1995, he was also removed by Carr in 1999 in one of his worst decisions. Ernie was furious and disappointed, privileging me to a call containing more C words than I thought humanly possible, and unchallenged by anything I’ve seen or heard before or after.
 
Thanks, Ernie.  At a time when we have little respect for our politicians, either State or in local government, that we don’t have more people devoting their working lives as assiduously, selflessly and honourably, as you did.

You’ve moved house or Council? Don’t let it be a secret

It is our business because when the State Electoral Commission posted notices for our 2018 election to financial members, we were surprised how many of you hadn’t kept us up to date with your residential address.  It’s clearly never front of mind when you move (because moving is one of the great stressors in life) and as time goes on, we get fewer and fewer letters, but sometimes we do need to write to you, or the SEC does, and if we don’t have your address, you miss out.

Here is a link to how you can update your information on our website.  Go on, it’s so easy - as a surprisingly high number of members who actually stood for election, but hadn’t told us of changes to their addresses, have now discovered...

Every now and again we remind members about letting us know when you’ve moved from one Council to another and we also remind our delegates to help us out here as well.  It does make life easier for us if we know who our members are at each Council and this month we received email advice from a member who moved from The Hills to Liverpool, followed up by that advice from the delegate as well!  This was almost unprecedented.  Thanks Juliana and Daniel.

Come on, it’s not that hard.

We make a submission to ICAC Operation Dasha

For decades depa has seen the flaws created when senior staff are appointed on term contracts.  There was always going to be a risk to senior staff giving advice without fear or favour if they are being heavied by councillors or a GM who wants them to do something else when their contract was up for renewal.

There is no protection at all and that’s the whole point of there being term contracts required by section 338 of the Local Government Act being accompanied by section 340 prohibiting any access to entitlements under any industrial instrument, or more importantly, any protection available from the Industrial Relations Commission on dismissal.

It may not have been the plan, but it has delivered up vulnerable senior employees and potentially compromised their advice.
 
38 weeks’ pay and no obligation to provide a reason for the termination has been embraced by many councils - very happy to get rid of good people and do this apparently unconcerned that it costs their ratepayers and the community 38 weeks’ pay, and often a pretty good rate of pay as well, to sack people who don’t deserve to be sacked.  And GM’s do it too, equally as unrestrained by the unnecessary cost.

We’ve seen the misuse of term contracts since their introduction.  We have always tried to do something about it and Operation Dasha, with allegations by the GM of the former Canterbury that councillors were bullying, or blackmailing him, as he put it, to make a particular appointment to job of Director of Planning, is an opportunity too good to miss.  Maybe the ICAC will see the wisdom of removing the fixed terms and recognising these positions as both requiring and deserving permanent employment.  They must otherwise be struggling to understand how this can all happen.

The Office of Local Government has their own barrister, harrying the current GM of Canterbury-Bankstown about the value of the “termination without reasons clause ... in the event that there was a breakdown in the relationship between the councillors and the general manager”.  Full credit to Matthew Stewart for not succumbing to the pressure and we all know that “breakdown in the relationship” means only that the Council doesn’t like the GM, because the GM, for good reasons, won’t do what they want.

It’s also odd that while the State public sector has transitioned almost all of their Senior Executive Service employees to ongoing employment, including those SES employees working at OLG (OMG!) that the OLG continues to defend this anachronistic and dangerous employment arrangement.  There will never be confidence in local government, if employees can be directed on the content of their advice and are afraid to provide advice without fear or favour.

So this is the first problem and the second problem is the overwhelming evidence over the past decade or so in particular, that it was never a good idea for the elected councillors to have anything at all to do with the assessment of a DA – a view now recently shared by the NSW Government, which required Sydney Metropolitan councils to do what Wollongong has been doing, of having DAs dealt with by a Local Planning Panel.  We called for the removal of councillors from DAs in depaNews in July 2017 and the Government responded almost immediately and did so.  It must be the power of the pen.

What we know already about the way business was done at the former Canterbury brings together these two areas of government policy as if they were to storm cells we have been watching on a weather map, gradually getting closer and closer together, then joining with catastrophic results.

The ICAC’s consideration allows us the opportunity to respond to both these areas and we have done so, lodging a submission with the ICAC on 23 May and making some sensible and easily implementable recommendations on both employment protection and planning.  Check it out.

Public hearings for Operation Dasha resume on 13 June.  Let’s see what happens.

Look out the BPB is coming after you

And this time they’re using “intelligence”.  Is there any word more likely to strike fear into your heart?  Is it the Russians? The Chinese, or just a euphemism for gossip?

The BPB must have run out of complaints about private certifiers and discovered that there was little to investigate in local government, so has decided to take a broader approach to the investigation of Council employees who are accredited certifiers.

When the Government decided it made sense to accredit local government employees, the industry (and not just us) was concerned about how the BPB would handle the accreditation of Council employees and, in particular, how they would manage the dual accountability of an accredited certifier to their employer with a parallel line of accountability to the Board.
 
Would this set up the possibility of parallel, or sequential investigations, if a complaint is made simultaneously to the Council and the BPB, or to the Council first and then to the BPB, or whatever.  And what about penalties?  What if the Council deals with that first in a way that the BPB thinks is insufficient, or the Council nails the employee but the BPB doesn’t think it’s such a big deal?
 
We were assured at the time by BPB President Sue Holliday and the Board that the BPB would rely upon any investigation conducted by the Council.  They would review the adequacy of the investigation, its thoroughness, any penalty that might have been imposed, and then make their own judgement about whether anything else needed to be done.  It was an acknowledgement of the primacy of the employment relationship.

But leaving Griffith aside, complaints against accredited certifiers and councils have been few and far between.

(Griffith was a fiasco, a Council with a very long history of understaffing and under resourcing, failures to provide market rates to attract staff and even now, after their humiliation at the hands of the BPB (depaNews October 2017) the Council has now appointed a Director Sustainable Development who is neither a planner, nor a health and building surveyor.  He is a Certified Practicing Accountant who was previously the Council's Manager Economic Development and Tourism. What could possibly go wrong?)

But now we discover that the BPB in February commenced an investigation into a council employee who is accredited with the Board.  There had been no complaint to the Council, the findings themselves focus on minor administrative matters (as if something needed to be found) but more worrying was how the BPB came to be investigating in the first place.

When our member received a letter from the BPB early this month advising that findings had been made and that he, and the Council, had an opportunity to respond, it was signed off by the Manager Complaints Investigation - a job title with no uncertainty, it’s complaints investigation and that’s it.

The accredited certifier and the Council had no idea how this unexceptional domestic construction site had come to the Board’s attention.  There had been no complaint made to the Council and while lots of advice flowed back from the BPB about those sections of the Act that allow them to conduct investigations, there was no answer to the question.  What was there to hide?

And similarly for us, when we started to chase the BPB, understanding that if this can happen to one of our members, it could happen to all of them, they tried to fob us off as well.

When we claimed it was logical that if the Manager Complaints Investigation was managing the investigation then there had to be have been a complaint, we then received a response from the same person but miraculously, they were signed off as Manager Investigations.  Hard not to smell a rat.

But worse was to come, with email advice from the Manager Investigations to the accredited certifier that the Board was relying upon “intelligence or concerns that had come to the Board’s attention.”  That’s a real WTF moment if ever there was one. Not I.N.T.E.L.L.I.G.E.N.C.E, mind you, because who doesn’t love a supercomputer invented by Matt and Trey, but because that word could mean anything.  “Intelligence” from someone who sits next to you at work but doesn’t like you, a grumpy neighbour who thinks you play music too loud, or resents your success in the local garden competition, a councillor who thinks you’re too vigilant, an ex in a messy relationship separation, who knows?
 
But we’re going to find out.  If the BPB was going to do this they should have individually advised every accredited certifier in local government and the organisations that represent them.  That’s probably only depa at this stage (although we assume AAC and AIBS are scratching their heads) but no-one received any advice or tipoff that it didn’t just require a complaint, that the Council didn’t need to be involved, but the BPB, however they got their information, can decide to investigate you. That’s disappointing.

Here is a link to our letter of 23 May to the Director of the BPB complaining about the circumstances and attaching a couple of email trail is where we have protected the identity of the accredited certifier.  We will be meeting with the Director and the Manager Complaints investigation/Investigations on 13 June, and we’ll let you know how random and dangerous this process can be after that.

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