A new Minister for Local Government - let’s see what we can do about those unfair standard contracts

We wrote to welcome the Hon Shelley Hancock MP as the newly appointed Minister for Local Government, delighted to have a minister who has spent decades of her life devoted to local government as a councillor on Shoalhaven and understands the industry and its needs.

In her inaugural speech in the legislative assembly on 28 May 2003 (always a good way of getting to know people) she spoke fondly of her years as a teacher at Ulladulla High School. Nice to think that she had a career beginning as a teacher in state schools. Even nicer to note that in acknowledging her father’s contribution to her development, having “planted the Liberal seed“,  the Minister noted “Dad and I argued very little, except perhaps about trade unionism”. As good a confession as any that she was a member of the Teachers Federation at Ulladulla and we note her recognition of responsible unionism. She will like what we have done by cooperation between the unions and the employers in local government over the last three decades.

We met her Senior Adviser who already had a significant depth of knowledge, particularly about the things that concern us - private certification, the value of the cooperative approach in negotiating Local Government State Award for the last quarter of a century and our historic view on the blatant unfairness of term contracts for senior staff and how they facilitate unfair treatment.

We’ve already seen too many examples of councils getting rid of GM’s without explanation but also of GM’s sacking directors using the 38 weeks’ pay provision of the Standard Contract which doesn’t require explanation. What the ICAC describes as “no reason”.

We saw it in 2015 when the GM at Mid-Western sacked the Director of Planning and Environment and the Director of Corporate Services in the middle of an ICAC investigation and we saw it this year when the GM of Narrabri Council sacked the Director of Development and Economic Growth. We wrote to him and he responded “the Council makes no admission to any breaches of the employment contract” but then later in the letter remedied one of the breaches by agreeing to pay the SOORT increase but didn’t acknowledge it was a breach.  

This was a messy termination at best. It was concluded with a breach of section 337 of the Local Government Act by not consulting with all councillors before the sacking and commenced with an issue about placing the member on the standard contract for senior staff six weeks or so before the position was made senior staff!

depa has filed a section 106 Unfair Contract application in the Supreme Court.

Interestingly, the ICAC in their report at the conclusion of the Mid-Western investigation, criticises the ability to sack general managers with “no reason”. They said:

.. the “no reason” provisions in the standard contract, however, could create an uncertain employment environment for a general manager. The Commission’s concern is that such uncertainty could be used improperly to influence the actions of a general manager. Councils, Local Government NSW and, given its investigative role, the OLG, should be aware that, rather than a simple issue of employer-employee breakdown, the termination of a general manager of a council under “no reasons” provisions may indicate that councils have attempted to improperly influence a general manager.

And that applies equally to the termination of other senior staff as well.

Significantly, the senior staff provisions in the Local Government Act were modelled on employment arrangements for the Senior Executive Service in the NSW Public Sector. It flowed into local government, notwithstanding the clear differences between the two levels of government and the acknowledgement in the industry of the tendency for councillors to occasionally threaten both GM’s and directors.

Five years ago Premier Mike Baird resolved to transition the overwhelming majority of the SES employees into permanent positions but this reform hasn’t flowed into local government yet.

The ICAC’s Operation Dasha into the former Canterbury has dealt with issues about employment under the standard contract for both the GM and the Director of Planning and depa made a submission to the ICAC with recommendations on planning and employment to avoid the problem is the subject of the investigation.