Dispute Resolution: Learning From The Experience of Disputes at Shell Harbour City Council

DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p.
1 LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL
LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL

Dianne Allen, 1996
Contents
LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL ........................................................................................................................... 1 ABSTRACT .................................................................................................................................... 3 1. INTRODUCTORY REMARKS ................................................................................................. 3 1.1 GENERAL CONTEXT OF LOCAL GOVERNMENT ................................................ 3 1.2 THE SITUATION AT SHELLHARBOUR COUNCIL ................................................ 5 1.3 CURRENT THEMES FOR ENHANCING ORGANISATIONAL LEARNING ......... 6 1.4 APPLICATION OF THESE THEMES IN THE LOCAL GOVERNMENT CONTEXT .............................................................................................................. 7 1.5 THE CURRENT CONTEXT FOR ORGANISATIONAL LEARNING AT SHELLHARBOUR COUNCIL ............................................................................... 7 2. SPECIFIC CONTEXT FOR SHELLHARBOUR COUNCIL ..................................................... 8 2.1 THE LOCAL GOVERNMENT AREA - HISTORIC OVERVIEW ............................. 8 2.2 NATURE OF DISPUTES EXPERIENCED BY SHELLHARBOUR COUNCIL........ 9 2.3 DISPUTE RESOLUTION OPTIONS EXERCISED BY SHELLHARBOUR COUNCIL................................................................................................................ 9 2.3.1 DIRECT NEGOTIATION.............................................................................. 9 2.3.2 INDIRECT NEGOTIATION/ FACILITATED NEGOTIATION ................ 10 2.3.3 MEDIATION................................................................................................ 10 2.3.4 EXPERT APPRAISAL................................................................................. 11 2.3.5 CONCILIATION .......................................................................................... 11 2.3.6 EXPERT DETERMINATION ..................................................................... 11 2.3.7 ARBITRATION ........................................................................................... 11 2.3.8 LITIGATION ................................................................................................ 12 2.3.9 PARTNERSHIP ........................................................................................... 12 3. LEARNING FROM THE EXPERIENCE OF DISPUTES ....................................................... 12 3.1 GENERAL REMARKS: ............................................................................................. 12 3.2 EXPERIENCE OF DISPUTE IN THE RANKS OF ELECTED REPRESENTATIVES ............................................................................................................................... 14 LESSONS/ ILLUSTRATIONS ............................................................................. 16 3.3 AN EXAMPLE OF AN INDUSTRIAL DISPUTE: .................................................... 17 LESSONS/ ILLUSTRATIONS ............................................................................. 18 3.4 THE SHELLCOVE PROJECT ................................................................................... 18 LESSONS/ ILLUSTRATIONS ............................................................................. 20 3.5 PROSECUTING BREACHES OF REGULATIONS AND THE DELEGATION TO INSTITUTE LEGAL PROCEEDINGS ................................................................. 20 LESSONS/ ILLUSTRATIONS ............................................................................. 22 3.6 SECTION 94 CONTRIBUTIONS AND CHALLENGES TO COUNCIL POLICY .. 22 LESSONS/ ILLUSTRATIONS ............................................................................. 25
DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p. 2 LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL
3.7 PUBLIC PARTICIPATION AND PREPARATIONS FOR WIDER PUBLIC CONSULTATIONS .............................................................................................. 26 LESSONS/ ILLUSTRATIONS ............................................................................. 31 BIBLIOGRAPHY.......................................................................................................................... 32 Section 1........................................................................................................................................ 32 Section 1.1 ......................................................................................................................... 32 Section 1.3 ......................................................................................................................... 32 Section 1.4 ......................................................................................................................... 32 Section 1.5 ......................................................................................................................... 33 Section 2 ............................................................................................................................ 33 Section 2.1 ......................................................................................................................... 33 Section 3 ............................................................................................................................ 34 Section 3.1 ......................................................................................................................... 34 Section 3.6 ......................................................................................................................... 34 ATTACHMENTS ......................................................................................................................... 36 ATTACHMENT 1: INTRODUCTORY REMARKS: ...................................................... 36 EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENTABSTRACT .......................................................................................... 36 ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING ABSTRACT ...................................................................................................................... 36 FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP DECISION-MAKING ABSTRACT ........... 37 ATTACHMENT 2 EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Section 1 .................................... 39 ATTACHMENT 3: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT Section 2 ................................... 45 ATTACHMENT 4: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Section 6 .................................... 49 ATTACHMENT 5: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Section 7 .................................... 54 ATTACHMENT 6: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Recommendations for Shellharbour Council............................................................................................. 61 ATTACHMENT 7: EXTRACT FROM "ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING" ............................................ 62 ATTACHMENT 8: EXTRACT FROM "FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP DECISION-MAKING".......................................................................................... 64 ATTACHMENT 9 :TABLES TO INDICATE THE LEVEL OF DISPUTATION REACHING COUNCIL REPORT LEVEL........................................................... 67 PRESENTATION OVERHEADS: ............................................................................................... 72
ABSTRACT
This paper looks at a number of experiences that Shellharbour Council has had with disputes over the period 1974-1996. These experiences are generally illustrative of the context of disputes in local government. From a review of this experience it is apparent that Shellharbour Council, since 1974/5, is an organisation which has generally been open to different ways of dealing with disputes. The organisational learning process, derived from these experiences, over this period, has tended to set a relatively progressive culture for handling disputes. Nevertheless, given the context of change in local government, and continued growth and complexity of issues that Shellharbour Council can anticipate facing in the future, there is room for a more strategic effort to improve its present performance. The "case studies"/ experience then form a resource from which the organisation can continue to learn for such improved performance.
1. INTRODUCTORY REMARKS
1.1 GENERAL CONTEXT OF LOCAL GOVERNMENT
A more comprehensive analysis of the general context of Local Government has been provided in a previous assignment.
SEE ATTACHMENT 2
Suffice it to say, at this point, that in the context of local government, there is the "opportunity" to experience almost the whole gamut of difference/ dispute, and a necessity to be able to handle any/ all of it, as well as possible. For a local community, local government can be a focus /a microcosm of the nature and form of disputes experienced in the wider Australian context. Where the particular council is part of the identity of a local community, it will, of necessity, give the model to its community, on how to behave in such disputes. And that model will be for better or worse.
There are a variety of sources of pressure/ expectation on local government to perform. These can be summarised as: 1. Federal Government
2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.
State Government Ordinary people, residents - ratepayer - value for money Lobbyists: environmental; business; etc Elected representatives Political parties Staff - professional satisfaction Staff - employment security and pay for performance Local Government & Shires Association Staff associations - industrially advantageous conditions for employees Businesses - permission to develop within (minimum) economically viable constraints The Fourth Estate: press, radio & TV
The regular operations of a council involve a number of basic interactions where there is the potential for differences to lead to breakdown of communications, negotiations, relationships. These can be summarised as: 1 2 3 4 5 Customer Service: Regulatory responsibilities: Staff interactions: peers; superior/ subordinates; industrial Involvement in Community development: New legislation: transparency, accountability, interactive processes
Again, a more detailed analysis of these aspects, and the implications for organisational effectiveness, namely in the area of staff training, have been dealt with elsewhere.
SEE ATTACHMENTS 3, 4 & 5 FOR THESE DETAILS
In dealing with these differences, a council has access to the whole range of dispute resolution options. Some indications of typical applications of the range of dispute resolutions in local government, and areas where they are applied, are as follows:
DISPUTE RESOLUTION PROCESS: Direct Negotiation
EXAMPLES OF WHERE THE PROCESS IS TYPICALLY APPLIED: Employee & Immediate Supervisor
DISPUTE RESOLUTION PROCESS:
EXAMPLES OF WHERE THE PROCESS IS TYPICALLY APPLIED: Employee with delegated authority & Developer - working through application to reach position of conformity with policy, therefore approval (with or without conditions) Employee with delegated authority & Contractor - dealing with contract variations
Indirect Negotiation/Facilitated Negotiation
Union Representative (staff) /Management; Union Organiser/ Management; Union Organiser/Local Government & Shires Association Industrial Division (peak employers' representative)
Indirect Negotiation/ Professionally represented parties Mediation - voluntary bipartisan initiative Mediation - voluntary, bipartisan, but prerequisite of arbitration Expert Appraisal Conciliation Expert Determination Arbitration Litigation Partnership
Council's solicitor to appellant solicitor
ADB approach Land & Environment Court
Commission of Inquiry EP&A Act Industrial Court Commission of Inquiry EP&A Act Industrial Court Court of Appeal
1.2 THE SITUATION AT SHELLHARBOUR COUNCIL

Over time, Shellharbour Council has gained an awareness of 1. 2. the importance of dispute resolution at source (ie with little or no formal legal intervention); and the variety of options in dispute resolution;
and it has elected to access different processes to deal with particular kinds of disputes.
It would be my thesis that Shellharbour Council's organisational knowledge in this regard has been formed by 1. 2. the interaction of individuals with particular issues; and the sharing of this experience from individual to individual.
(In this process there has been leadership in recognising different approaches and the necessity to change the approach, appropriate to the circumstances, from the elected personnel as well as the staff/ professional support area). This knowledge now resides with individuals in the range of levels in the organisation, but cannot yet be described as being organisation-wide. The level of skill in applying any, or all, of the dispute resolution options available is variable from individual to individual. This process of organisational knowledge and skill formation has happened in a relatively ad hoc way in the past. As issues have arisen, the personnel involved have sought to resolve them, and in the process have honed dispute resolution skills. But there has not been any obviously explicit organisation-led process to ensure this. At this point, some of the key players have recently retired/ been retired from the arena. Consequently, there is a risk that the results of this past learning may be lost, unless some program is consciously engaged to focus on this growth of knowledge and development of skills from past experience, and the handing on of that knowledge to and the development of those skills amongst the next generation of participants.
As the Council seeks to handle its various responsibilities, in the ongoing context of change, and severely constrained resources, there is a continuing necessity to consciously improve operational performance, and that includes performance in the area of dispute resolution. (ie no more resources than are necessary are deployed on dispute resolution). For this, Council needs a mechanism to communicate that knowledge, develop the relevant skills in a range of personnel, and to continue to support and articulate the desired corporate culture of dispute management.
1.3 CURRENT THEMES FOR ENHANCING ORGANISATIONAL LEARNING

The work of Senge (1992), the impetus being given by TQM to continuous improvement, and many others, advocate the process of double-loop learning for organisations. This involves the
development of the capacity to review experience, to think about it, talk openly about it together and to learn from it, projecting improvements for the second time round. Then the process is repeated, for each cycle, with the application of the improvement determined from one cycle to the subsequent cycle. These processes help clarify the objectives of the group or the organisation, the techniques used in various operations and build a common understanding of what is going on and why, and how and why some techniques are more effective than others.
1.4 APPLICATION OF THESE THEMES IN THE LOCAL GOVERNMENT CONTEXT

It has been noted elsewhere, that for Local Government, as an industry, personnel resources are in much need of development. The provision of training and the recognition of appropriate ways to develop organisational learning are, for the most part, significantly underdeveloped at this stage. This provides a context, for the local government industry, or individual local government bodies, to take a "quantum leap" in this regard, providing the current directions, raised in section 1.3 above, are understood and applied.
SEE ATTACHMENT 2, 5 FOR FURTHER DETAILS
1.5 THE CURRENT CONTEXT FOR ORGANISATIONAL LEARNING AT SHELLHARBOUR COUNCIL

A review of the current position of organisational learning, and development of dispute resolution skills and knowledge, for the staff of Shellharbour Council, has been dealt with in detail in previous assignments.
SEE ATTACHMENTS 5, 6, 7 AND 8 FOR DETAILS
There is the potential, at this stage, to use the lessons available from past experience of handling disputes, to enhance present levels of staff skills, and so develop an organisation more adept at dealing with the inevitable differences that arise in dealing with local government.
2. SPECIFIC CONTEXT FOR SHELLHARBOUR COUNCIL

2.1 THE LOCAL GOVERNMENT AREA - HISTORIC OVERVIEW
Prior to the Second World War, the Shellharbour local government area, on the coast, south of Wollongong, had been primarily rural (dairy farming the major component) with some "ribbon" residential/tourist areas around Lake Illawarra. During the period 1960-70 this basic demography began to change dramatically as residential development (including a significant proportion which was public housing) occurred. This development was designed to provide "dormitory" facilities for the large semi-skilled workforce attracted to the growing steel industry at Port Kembla. Population 1954 = 5,523 1961 = 13,394 1971 = 31,137 1981 = 41,790 1991 = 46,295
In 1954, the composition of the population was 13.4% under 4, 6.3% over 65, 36.4% employed, 16.4% born overseas, 8.0% from UK & Ireland, and 9.8% resident in Australia less than five years. In 1971, the composition of the population was 11.7% under 4, 3.1% over 65, 34.4% employed, 31.9% born overseas, 18.5% from UK & Ireland, and 8.2% resident in Australia less than five years. In 1981, the composition of the population was 9.4% under 4, 4.2% over 65, 40.3% employed, 28.7% born overseas, 13.9% from UK & Ireland, and 1.7% resident in Australia less than five years. In 1991, the composition of the population was 8.2% under 4, 7.4% over 65, 38.5% employed, 24.7% born overseas, 11.5% from UK & Ireland, and 1.1% resident in Australia less than five years. So, within the basic community structure, there is an ongoing emphasis on: 1. "young families" (compared to the NSW average); 2. a more even balance across the ages (in 1991 compared to say 1971); 3. a significant proportion coming from overseas without English as their first language; 4. and the vast majority are relatively recent settlers with very little in the way of the internal social support provided by extended families in close proximity.
In 1996, the Shellharbour area is in the midst of yet further urbanisation, and what was a relatively homogeneous socio-economic mix in 1971, is destined to become yet more diverse.
2.2 NATURE OF DISPUTES EXPERIENCED BY SHELLHARBOUR COUNCIL

As is often the case with the "negatives", as distinct from the "positives", there is not a particularly thorough, or reliable, "register" for disputes, etc, at Shellharbour Council. Most of the knowledge of the range, quantum, and level of disputes tends to be held individually, with some corporate sharing, especially anecdotal, of key events/issues. The most clearly documented disputes are those that escalate to the level of a report to Council: for decision, to reaffirm present policy, or where a determination is required to institute legal proceedings. For the documented disputes, the main items are: 1. 2. industrial - working conditions, overaward claims, etc non-acceptance of Council decision/s regulating development
SEE ATTACHMENT 9 FOR DETAILS
2.3 DISPUTE RESOLUTION OPTIONS EXERCISED BY SHELLHARBOUR COUNCIL

2.3.1 DIRECT NEGOTIATION
It is projected that the Direct Negotiation method of dispute resolution is used most frequently, and part of the success of this process is reflected in the fact that a dispute, or a difference raised between parties, is settled, without reference to another level of management, or without the need to draw in any other party outside of the organisation. To the extent it is successful, it means that the scope (number, nature, etc) of this level of dispute resolution is essentially unknown. Direct negotiation is used to settle differences between staff and management, especially in the areas of meeting staff needs by flexible/ creative exercise of discretion and agreement to (usually short-term) change.
The direct negotiation may need to progress to negotiation facilitated by technical representatives when the independent exercise of discretion (by management) is seen to be
"arbitrary" and/or "partial". Then "class" representation calls for a formal enunciation of "policy" so that common rules are established which can then be applied to all. Direct negotiation is also a significant component of Council's commercial relationship with its contractors. The basic negotiation typically occurs between Council (represented by its professional staff overseeing the contract performance) and contractors, concerning the terms of contract and service delivery - eg additional works required outside of contract, and undertaken for agreed sums not covered by the original contract. Direct negotiation is also a natural part of the development application/approval process. There can be considerable consultation between Council officers and applicants before an application is refused, or concerning the conditions that are to apply to the approval. The availability of staff for this kind of negotiation is particularly appreciated by the "regular" developers, and the general rapport developed has been seen to benefit both parties.
Since the instigation of public participation, the applicants (who are dissatisfied with the officer's recommendation) have had access to the councillors, to present their case. This ensures "internal solution" wherever possible. Public participation has also provided "objectors" - adjacent owners, primarily, and "third party" eg the "conservation lobby", secondarily, with access to councillors prior to the formulation of a decision. In some instances, the formal council meeting has been adjourned while the elected leadership sought to facilitate a negotiated settlement between the applicant and objectors, within Council's development policy construct.
2.3.2 INDIRECT NEGOTIATION/ FACILITATED NEGOTIATION

Indirect negotiations between parties, represented by their own professional advisers, normally occurs in matters of contract - eg land sale/acquisition; lease formulation; pre-contract negotiations, etc.
2.3.3 MEDIATION
The Anti-Discrimination Board's initial approach to a claim of discrimination is to mediate between the employer and employee, to explore the issue, and determine whether the matter at issue can be resolved at the "internal" level. Shellharbour Council has had one such experience, early in the life of the ADB. The reform of the Local Government Act in 1993 introduced a statutory obligation on councils to formulate an EEO plan, and to manage EEO in the workplace.
I am not aware, at this stage, of any dispute situation where Shellharbour Council has sought to apply a formal mediation to a matter within its own discretion. There have been a number of occasions, when matters brought before Council, have led Council to recommend to the parties involved, that they seek to deal with their concerns in the mediated forum of community justice. Mediation, offered in the context of the final option of adjudication of an appeal, by the Land and Environment Court, is another process Council has accessed, in dealing with disputes arising out of development applications.
2.3.4 EXPERT APPRAISAL

Expert appraisal can be seen to be a formalised part of the "normal" process of dispute resolution in matters of development where an Environmental Impact Statement is required, and Council seeks independent advice from specifically contracted consultants to assist with its statutory obligations when assessing the environmental impact of the proposal. Shellharbour Council's most recent experience of an expert appraisal/ expert determination has been with the Commission of Enquiry into the proposal to develop a harbour as part of a coastal resort/ residential complex - the Shellcove project. The Enquiry was conducted by two commissioners between December 1995 and March 1996. The Commission has recommended approval subject to certain environmental protection conditions being met. The Minister for Planning is yet (7 November 1996) to declare his final determination of the matter.
2.3.5 CONCILIATION
Council has been involved in very few Conciliation Hearings of the Industrial Court, when Council has been perceived to be in breach of industrial law/ award conditions.
2.3.6 EXPERT DETERMINATION

Expert determination is a part of the process of any Commission of Enquiry established under the EPA Act, 1979, for the consideration of any designated development.
2.3.7 ARBITRATION
Council has been involved in the arbitration of disputes with individual staff, and/or the staff as a whole, at the Industrial Commission. The number of these has been small and the greatest
proportion of such disputes at this stage tend to be individual matters, representing a breach of performance, resulting in disciplinary action which is then challenged (almost de rigeur).
2.3.8 LITIGATION
As a plaintiff, Council has litigation as its last resort in dealing with debt defaulters, and regulation infringers. Such action is sparingly used. As a defendant, Council can be embroiled in litigation. The most frequent occurrence here is defending decisions in the Land and Environment Court. For reasons noted elsewhere, these are relatively few in number, with Council having a relatively high success rate.
2.3.9 PARTNERSHIP
There are three examples of a partnership process, with non-litigious forms of early dispute resolution, for Council at present: 1. The Management Agreement with the Walker Corporation for dealing with disputes arising from the engagement of the Walker Corporation to finance and undertake the residential development of Precinct 1 of the Shellcove Project The General Manager's employment contract The dealing with staff concerns via reaching consensus at the Award Restructuring Consultative Committee
2. 3.
3. LEARNING FROM THE EXPERIENCE OF DISPUTES
3.1 GENERAL REMARKS:

From the current study of disputes and dispute resolution it can be seen that a number of principles and issues need to be addressed in any training context seeking to equip participants to handle disputes which they may become embroiled in as a natural component of their work obligations. The principles and issues are: 1. communication techniques 1.1 active listening 1.2 effective questioning
1.3 2.
perceiving emotions
negotiation techniques 2.1 positional bargaining 2.2 interest-based negotiation the range of procedures available to undertake dispute resolution, and their fundamental components: 3.1 fair process - all parties being heard 3.2 role of any third party - neutral 3.3 determination of the matter on the basis of accepted (known and explainable) objective criteria 3.4 selection of process appropriate to the nature of the dispute 3.5 the timing of the dispute resolution intervention - ripeness of dispute components that lead to escalation: 4.1 faulty process - perception of bias 4.2 poor or bad timing - unreasonable delay 4.3 initial response - not respecting legitimacy of complaint, right of complainant to raise the matter strategic interventions: 5.1 questioning for clarification 5.2 rephrasing or reframing for perception development 5.3 private caucus 5.4 instruction on process 5.5 option generation - hypothesising 5.6 maintenance of self-esteem - mutualising, normalising 5.7 reality testing
3.
4.
5.
6.
the third party role: 6.1 mediator 6.2 facilitator 6.3 conciliator 6.4 arbitrator 6.5 adjudicator the role of power and its use in dispute resolution the role of "rights" and the use of "rights" in dispute resolution the nature of differences arising from gender, language, ethnicity, subculture, different value systems, etc
7. 8. 9.
As mentioned previously, the current literature on organisation learning, highlights the need to use, and the advantage of using, these experiences as a learning resource. (See Section 1.3 and the associated bibliography.)
Any program developed around a more deliberate use of this experience delivers the following outcomes: 1. it gives recognition to past actions, past successes 2. it opens up past actions to scrutiny/ review of effectiveness 3. it provides a context and framework for double-loop learning When such a learning process is undertaken for one area of an organisation's operations, and found to be effective, the organisation may also learn to use the same process and apply it to other areas of the organisation's learning. Whether or not the experiences are tapped in such a way, they do form part of the organisation's "group memory". They form part of the "accepted culture" - the way we do things around here. Tapped as a learning resource, the experiences become more deliberately embedded into the organisational culture. This means that the handling of the experiences, to expose the learning opportunities, needs to be itself carefully analysed and planned, and presented in the context of appropriate supportive skill building to enable more effective approaches to be considered and then explored in other dispute situations. The following instances give a brief overview of key disputes within Shellharbour Council's experience, together with an identification of the lessons which may be learned from/ illustrated by them.
3.2 EXPERIENCE OF DISPUTE IN THE RANKS OF ELECTED REPRESENTATIVES

As noted earlier, the demographic change which commenced about 1960 for Shellharbour, had an impact on the personnel elected to local government, and the issues raised in that forum. The change of State Government in 1966 led to a change in electoral practice in the 1968 local government elections (from compulsory elections to non-compulsory elections). The growing ALP representation stalled at a point where the "numbers" were close to, or equal to, the nonlabor independents. This "balance" continued in 1971-74-77 period. Compulsory elections were re-introduced in 1976 for the 1977-80 council term. The ALP group now secured a majority and was able to dictate the mayoral position. For the 1980-83 term and since, the mayor has been elected by popular vote from the whole plebiscite. The closeness of numbers in representation through 1971-74-77 led to some serious dysfunction in the elected council forum. There were extended debates arising out of reports (particularly in the area of town planning). These debates tended to deal with issues of policy principle. There was a basic difference in the approaches of the two groups - general support of development from the business/ conservative side; and challenge of development, especially the question of the "control" of it, from the ALP side. The debates were lengthy, but mostly proved to be "window-dressing" - "for the gallery". The ALP group's position was put: extensively and
cogently , their arguments were rarely effectively countered, but the vote went the other way. The power of the numbers, especially the Mayor's casting vote, was used time and again, to "win the day". This was also the period during which there was the beginning of concerns about environment (the Clutha coal mining debate had flared in the Illawarra), and growing discontent with residential flat development, and "third party" rights in determining elements of urban quality of life. (The shift of "grass-roots" involvement: from "Ratepayers' Association" to "Coalition of Resident Action Groups", was one such indicator). The annual mayoral election at Shellharbour was characterised by a draw from a hat, and in 1974 the draw selected RJ Harrison. (At one stage the heat and distrust generated by such "closeness" meant that the local sergeant of police was called in to supervise the conduct of the draw.) The position of mayor, apart from community status, etc, determined the decision-making power for the year. The person who was the mayor had a right to cast one deliberative vote because of his position as an elected ward representative. Then, in the event of a tied vote, the mayor had a casting vote to break an even deadlock. This casting vote was used to support the partisan position. (Such a casting vote can be used in another way - to hold the status quo until a majority is persuaded to one or other of the views extant.) During his first brief term, the leader of the ALP group, Harrison, instituted a number of significant changes: 1. 2. 3. the rights of councillors to access to information, access to Council files, was extended the Council appointed a Chief Town Planner, and severed this "dependency" link with Wollongong City Council the Council established a "public participation" policy and practice (this public participation policy was modelled on the practice operating at the time at Leichhardt Council)
When the next mayoral ballot saw the "opposition" drawn from the hat, there wasn't sufficient policy clarity, or deliberated effort, to unwind any of these changes. In 1977, with the ALP numbers now dominating the political forum, and Harrison secure as Mayor, another significant change was instituted: 4. Council's legal adviser was engaged on a retainer basis, with a regular one day a week spent out on site at the Council Chambers where the advice was now "ontap" for the Mayor and for senior and professional staff. The firm's staff included a senior, experienced practising solicitor (N Lamerton) with longstanding links with the Shellharbour community (Albion Park was the place of his commencing practice in the 1950's) .
Throughout the period of 1977-1991, during Harrison's mayoralty, an endeavour was made to "mend" the level of disputation at the elected forum: the independent councillors were included
in the committees of council, on the basis of their support at the ballot box (but not in sufficient numbers to represent a real power block). In 1991, when Harrison retired, the ALP still held the numbers, and the independent opposition had almost withered on the vine. The new regime did not endeavour to include the independents in the "committee" deliberations.
In 1993 the Local Government Act changed. The number of elected personnel was now limited: to a maximum of 15. For Shellharbour Council this required a change. There had been a longestablished three elected persons per ward structure pre-1931- 1993. The number of wards had grown from 4 to 5 in 1980, to reflect population growth. The mayoral position has been established as elected by popular vote from 1980 on. That meant, in 1991, a total of 16 elected persons. Despite vigorous representations to the State Government in 1993-4 to maintain the status quo, the figure of 15 was set. There then needed to be a review of ward boundaries, with a loss of positions available to aspiring candidates. The matter was for the incumbent Council to determine - with some provision for draft -> exhibition -> submission -> and consideration to determine. The wash up was a ward structure of six wards of two elected representatives each, with proportional representation. This compared with the previous five wards of three elected representatives each. To my mind the decision amounted to a gerrymander. (In practice it meant the substantial demise of the capacity of the independent (non-labor) position to be represented, especially in some wards). For the 1995 election there was fall-out in one of the ward ALP tickets when seniority was displaced by raw ambition. In another of the wards, the strength of numbers (of the "left" faction) now put in place ALP members who are antithetical to the "ruling right". In 1996, there has been a return to a sense of instability at the elected level. Now, the uncertainty arises from tensions within the ALP caucus. In caucus there are three, clear (distrusted) "lefties" out of the nine. In the council forum there is the potential for those three to combine with the one disaffected senior ex-ALP member and the two independents to force the exercise of a mayoral determining vote. There is even the potential to win the day if more than one of the "right" faction of the ALP is away. The only "safety" measure is when the caucus is alert to the prospect and has bound the three (not yet completely disaffected) members to "caucus solidarity" on a "policy" matter.
LESSONS/ ILLUSTRATIONS
1. Power - of numbers in the decision-making process; its legitimacy; its failure to completely satisfy parties' interests and needs Polarisation - abuse of the raw numbers power to separate, followed by frustration and a hardening of lines of difference Good and bad communication: Talking at, not talking with, particularly in the formalised context
2.
3.
4. 5.
Use of the third party neutral to legitimise process at a critical decision Impact of unsatisfactorily resolved disputes: locking participants into poor communication habits; poor decision-making processes - loss of trust; escalation of dispute; organisational dysfunction Use of objective criteria - proportional representation The value of recognising opposition as legitimate and working at including it in the decision-making counsels The benefits of working at differences to construct improved options to be considered in decision-making
6. 7.
8.
3.3 AN EXAMPLE OF AN INDUSTRIAL DISPUTE:

Direct negotiation is used to settle differences between staff and management, especially in the areas of meeting staff needs by flexible/ creative exercise of discretion and agreement to (usually short-term) change. The direct negotiation may need to progress to negotiation facilitated by technical representatives when the independent exercise of discretion (by management) is seen to be "arbitrary" and/or "partial". The technical representatives can assist by first distancing the parties and secondly by generalising the issue: so that it becomes a "class" matter, calling for a formal enunciation of "policy". When the matter has then been agreed by the parties, common rules are available to be applied similarly to all requests. For example, when an individual needs to change starting & finishing times to meet personal obligations, that can be arranged at the first line by the mutual agreement of the staff member and their supervisor. The regular change of starting times and finishing times to accrue "time in lieu" and to pool enough leave for a roster day, which then becomes part of Council's normal operating pattern, and available to all staff, required the process of: 1. presentation of a general staff claim; 2. initial considerations, by management of the request; 3. a decision by the council to reject the claim 4. a strike, and 5. further negotiations at this same level, when agreement was reached. The claim commenced as a claim for "flexitime" for "salaried" staff, and a shorter working week for "wages" staff. The claim was made in the context of a growing penetration of more flexible working arrangements in the public service, and a spill over of these conditions to some local government bodies. (There may have been some agitation from the Union representatives to approach the
Council on the matter. The fact that other councils had agreed to such arrangements tended to strengthen the local pressure/ position.) The claim was firstly put by way of a formal written submission from the respective staff union representative to the Council. The Council sought the response of management which was not particularly clear on its position. The Council refused the request. The Indoor Staff held a lightning stop work meeting and resolved on a half-day strike. This was an almost unheard of event for Shellharbour Council. Negotiations were re-opened, and an agreement reached.
At the time the Council and staff settled at a level of "roster day" (19 day month, compared with some other Councils where agreement was reached at a 9 day fortnight) that was mutually agreeable, and the matter did not become a greater dispute requiring either Conciliation or Arbitration in the NSW Industrial Court with the formulation of minimum conditions as part of an industry award. In 1992, following national developments in industrial relations, the Local Government (State) Award provided for the formation of a Consultative Committee at the local level. This committee, with representatives from the parties to the award, and management, is a consultative forum for raising general staff matters. Its deliberations have been encouraged to be determined on the basis of consensus.
1. Poorly informed negotiations with the parties having/ taking a position leading to escalation Use of power of numbers sparingly, tactically Value of moving from antagonistic approach to partnership approach and consensus decision-making involving all stakeholders Exercising the capacity to cycle back to less formalised forms of dispute resolution at any stage - not being locked into progress by escalation
2. 3.
4.
3.4 THE SHELLCOVE PROJECT

Shellharbour Council's most recent experience of an expert appraisal/determination has been with the Commission of Enquiry into the proposal to develop a harbour as part of a coastal resort/ residential complex - the Shellcove project. The Enquiry was conducted by two commissioners between December 1995 and March 1996. The Commission has recommended approval under certain environmental protection conditions. The Minister for Planning is yet (7 November 1996) to declare his final determination.
The project was first mooted in 1984/5 when the NSW Department of Public Works (L Brereton Minister) was responding to the need for more pleasure craft berths on the NSW coast; and the Steel Cities Program (Federal) was looking to diversify employment/ economic development in the Illawarra. Shellharbour Council owns the bulk of the land adjacent to the proposed harbour site. It was purchased in the late 1970's when the Council (with community support - South Coast Conservation Society) refused the then owners (ICI) from developing a chemical processing plant on the site. Over the period Council has negotiated with the Illawarra County Council for further land, and with the NSW Government on land exchange in conjunction with the development site and crown land (Bass Point Reserve and Killalea State Recreational Park), to obtain contingent land and provide appropriate land stock for the financial viability of the project. Council has been involved with negotiations with two major development companies which have sought to mount the project: Delfin 1986-1992; Walker Corporation 1992-1996. The process, from the first presentation of the proposal, to the eventual commissioning of the harbour, is not yet complete. The failure of the first "commercial" partners to activate any firm project proposal has not helped - but is evidence of the reality of the impact of the interaction of current economic uncertainties within a large and complex project. Over this protracted period, there have been a number of "objectors" mobilised to take exception to the proposal. (A study of the waxing and waning of these "hot" spots in the process would be an interesting exercise within its own right but is beyond the scope of this report.) These objections have taken the following form: 1. 2. the initial formalised objection came from surf board riders seeking to retain the Shallows area this group spilled over to residents with beachfronts; one of whom was a retired labor state politician from the left wing - this "activation" has led, finally, in 1993 - almost ten years after the start - to left wing ALP members on Council, in caucus, disaffected on this issue the golf club adjacent - affected by a proposal to relocate and deliver enhanced facilities in a different location within the total project an aboriginal land title claim
3. 4.
The dispute between officials of the Shellharbour Golf Club and Council concerning the relocation of the golf course has gone through a number of stages: opposition - support opposition. The present golf course is located on land leased to the club from Shellharbour Council. The proposal is to relocate the course, and substantially upgrade the course and its support facilities. At one stage Golf Club personnel worked with Council and the developer in selecting the golf course design specialists, and determining design objectives for the new course. There has been change of elected personnel on the Golf Club Board of Directors, and a shifting in policy/ approach to the proposal.
Presuming the Minister for Planning's concurrence with the Commission of Enquiry's findings, the harbour component of the project still has to run the gauntlet of an Aboriginal land title claim.
1. 2. The difficulty of sustaining support over a long period of time The question of the actual substance of the present and previous objectors/ objections The question of the validity of the ballot box as a gauge of public support The public relations/ communications strategies to build and hold community support; to mobilise opposition; etc Interest-based negotiations with various parties: Illawarra County Council, adjacent landowner; NSW State Government adjacent land trustee; Pioneer Quarry adjacent landowner with right of way for land based transport of quarry products
3. 4.
5.
3.5 PROSECUTING BREACHES OF REGULATIONS AND THE DELEGATION TO INSTITUTE LEGAL PROCEEDINGS
As noted briefly, earlier, Council is both a plaintiff and a defendant in litigation. One of the statutory requirements of local government is to regulate certain activities: 1. compliance with building approvals 2. compliance with development approvals 3. compliance with public health regulations 4. control of stock and dogs 5. legal use of public places etc To do this, councils have Ordinance Officers and professional inspectors who patrol the area, follow up complaints, and endeavour to deal with any breaches. There are a number of options open to them: 1. education: in the form of "did you know .. ", "you will have to ..", followed up with 2. notices to comply 3. issuing of penalties for infringement 4. eventually taking an unresponsive offender to court. Further, Council, as a revenue collector, often has long term debtors, where there is recourse to
the courts to retrieve debts. In 1987, the Administrative staff sought to document and clarify the role of staff in exercising Council discretions by having certain matters formally delegated to them. This process involved the review of delegation/s to date, and sought to bring the process under some systematic and structural principles. In the course of the debate between the Council and the staff advising on this matter, it became clear that the Council did not want to delegate the power to staff to initiate any legal proceeding on their own cognisance. (This was the Council's stance, even though Council could well have established procedural rules, with a variety of levels, for different instances, to ensure that such action was appropriate and the last resort: only to be taken in extreme circumstances.) The advantages/ disadvantages of the delegation of this responsibility to staff was enunciated at the time as follows:
D. There are advantages and disadvantages in delegating the power to decide to prosecute or take legal action, in individual cases, to staff members of Council. The advantages are:
a. b.
Aldermen are not subject to undue pressure from individuals affected. The decision to prosecute or take legal action may be made more consistently by staff regularly involved in the investigating and consideration of the situation that needs some form of redress. Council can still frame policies which define the situations when a prosecution or other legal action is considered necessary.
The disadvantages are: a. b. c. Aldermen could be "caught unawares" - not knowing that a certain prosecution has been set in-train. Aldermen have no opportunity to exercise their prerogative of mercy. An officious staff member could become involved in vexatious litigations (prosecuting petty offences for the sake of it).
While the non-delegation of the power to initiate legal action is generally acceptable, since legal proceedings are not necessary streamlined by staff having such a power, there are occasions when Council staff do need to act expeditiously to restrain others from illegal actions. In this situation, there is a high level of consultation between technical staff and the General Manager and Council's legal adviser; and then between the General Manager and the Mayor (and in some cases key Councillors). When all parties are satisfied that this is what is required the restraining order is obtained (subject to the Court being satisfied that it is required, of course). The whole matter is then reported to the Council at its regular meeting (a once every three week event), where the actions of the staff are now formally endorsed. If there was any dissatisfaction amongst the Councillors with the action taken, it would be at this point they would raise such a matter.
1. 2. 3. 4. 5. Role of litigation: when it is most appropriate; least necessary Litigation as a last resort Council review of process - capacity to intervene Encouragement of dealing with matters at the least disputatious level Persuasion before coercion
3.6 SECTION 94 CONTRIBUTIONS AND CHALLENGES TO COUNCIL POLICY

In 1979 the Environmental Planning and Assessment Act provided, in Section 94, for Councils to be able to levy developers on the basis of the need to deliver infrastructure to adequately service any increase of population and/or activity arising from such new developments. This was a generalising and expanding of an earlier power to require developers to provide land and/or contributions for "recreational open space" in residential subdivisions, and "car parking" for business developments. Change to the legislation in 1985, and case law since, established the principle of requiring that there be a "nexus" between the demand for the contribution, and the proposals for infrastructure development to be financed by the contribution. This has been further enhanced by the requirement, since 1991, to formulate a Section 94 Contributions Management Plan, documenting and regulating such levying and the subsequent deployment of funds so raised. The Section 94 Contributions Management Plan represents a very significant aspect of Shellharbour Council's operations and obligations. The present high level of urban development requires appropriate, concurrent infrastructure, and the current rate of urban development is projected to continue for at least another 10-20 years. Shellharbour Council commenced levying contributions under Section 94 in 1984. In 1991 Shellharbour Council adopted Development Control Plan No.6/90 which incorporated, within one document, its objectives and management arrangements for the levying and utilisation of Section 94 funds. The Development Control Plan No.6/90 has been replaced by the Section 94 Contributions Management Plan, finalised in June 1993. The third review has been approved in July 1996. The current Section 94 Contributions Management Plan (Third Review 17 July 1996) estimates
raising $18.6 million for "Precinct Infrastructure" and $21 million for "City Facilities & Services" to cater for a population increase projected at 26,000 over the next 20 years (an increase of almost 50%). [This compares with an annual Council expenditure of $27 million, for ongoing operations, with a limited capacity (about $1.2 million) for any real capital investment.]
As noted earlier, Shellharbour was substantially a rural area in 1956. By 1966, its character had undergone a significant change as urban/ residential development started to convert paddocks to suburban housing.
In 1972, a significant parcel of land, 1200 acres, came into the ownership of the NSW Government, and in 1974 plans were announced to undertake further urban development to bring the population to 80,000 by 1984. The urbanisation, accelerated by the activity of the NSW Housing Commission, which commenced in 1965, had highlighted the need for infrastructure development to occur concurrently, or at least not far behind, the construction of houses and their subsequent occupation. Council's first attempt (1966-69) to gain some "concessional" treatment with respect to obtaining State Government contribution towards infrastructure was in the area of the capital works required to provide sewerage. What was achieved was an agreement to construct a sewerage treatment works, etc on the basis of an equal commitment from Council and the Sydney Metropolitan Water Sewerage & Drainage Board for the capital works - a contribution of $4.5 million dollars to be raised over 9 years, through Council's normal loan borrowings. This was quite different from the requirements laid on other local government areas in the Water Board area, at the time; and quite different from the Water Board's dealings with the Kiama area in the later 1970's. Council was "sold a pup", and committed to a high level of loan borrowings (and so was then limited in what else could be raised for other infrastructure). When the project got underway, additional funds were required to keep the project within an economic timeframe and so Council was obliged to borrow on a bridging finance basis, their total commitment. This further limited Council's capacity to find funds for other infrastructure work. Indeed, for some ten years, Council's total, and maximum borrowing capacity (of $1million per annum) was committed to sewerage and main roads augmenting construction works. Then in 1975 Shellharbour Council commenced what has since become an ongoing series of negotiations with the NSW Government, either the Housing Commission, or the Land Commission, or the appropriate bureaucratic arm associated with the development of this land. These negotiations have sought to extract appropriate commitments from the NSW Government
for the development of other infrastructure. These negotiations were firstly in the face of "crown privilege": where the NSW Government is at liberty to do what it likes, when it likes, how it likes. However, a significant groundswell of public opinion, had been building. It arose from the consequences experienced by communities established in similarly "green fields" in the far Western Suburbs of Sydney. These "instantaneous communities" are able to be developed at the rate of 1250 people a year.
(During the 1960-70 period the Housing Commission's normal construction rate in an area where there was subdivided land was of the order 250 houses per annum. Each house could be expected to accommodate 5 people at the least - given the "disadvantage" rules applying to "getting on the waiting list". At Warilla there were two "bumper" years - 1966 & 1968 when 453 and 526 houses were presented for occupation.) These instant communities were dissociated from their normal social networks. The new sites were located in the place of old paddocks and did not have ready access to any other established social facilities - giving rise to social "deserts". As a result, social issues developed, exacerbated by the eligibility criteria which were linked to access to public housing, building a community homogeneous in its level of disadvantage. In Council's negotiations in 1975-1979 this public groundswell of concern resulted in the State Government providing some concessions concerning infrastructure development. Examples included the allocation of land which had not been cleared of its original trees for a natural reserve; the provision of land for a Child Care Centre. Then when the 1979 EPA Act provided a mechanism to levy private developers, there was a benchmark for the "moral" pressure to seek to achieve a similar outcome for the public housing areas. This saw the State Government formalise an agreement with Council, which, if not quite as good as the private contributions, was at least of a similar order.
In 1993, when Council published its first Section 94 plan it required a significant increase in the contributions from developers to recoup some of the previous investment in infrastructure and to provide resources for associated infrastructure development. By this stage, the Local Government Act, 1993, had provided for a draft -> public submission/ objection -> review process for the plan before it was finalised. One of the major land developers at the time, queried the levy and the plan. This developer and the backers were essentially "local" people, with a long term interest in local development. Following the formal submission and discussions arising (held at a staff level), they accepted the proposal in principle. Since then they have sought to ameliorate its impact on their operations by dealing with their obligations through the "in kind" option. By this process they develop the land set aside for recreation including the construction of supportive recreation facilities - active and passive and landscaping etc. This gives them both more control over development activities throughout the project, and cash flows, and because the facilities are "in place" this has given a
more immediate return on their investment in higher land value sales.
In 1994/5, another developer commenced a large scale urban development in the Albion Park area. This developer was an "out of town" organisation. It came from developments in other areas, and section 94 contribution levy levels in other local government areas. It was an organisation of some substance. It has proceeded to challenge Shellharbour Council's plan and levy. This challenge has been dealt with by negotiations where there have been concessions made on both sides. But there have also been stages where the negotiators have agreed to disagree and sought the court, an external party, to arbitrate the position. This has been on areas of "principle"/ "precedent". The arbitration of these matters has been seen to be in a wider public interest. The context of the negotiations has been such that these matters were able to be dealt with in such a way and in such a forum without breaching the ongoing working relationship between the Council and the developer.
1. Power and use of objective criteria - changing community standards and expectations Learning from experience and practice - negotiations over time with the State Government Appropriateness of forum for dispute resolution: the court for the matter of precedent/ independent confirmation of the legitimacy of local policy
2.
3.
3.7 PUBLIC PARTICIPATION AND PREPARATIONS FOR WIDER PUBLIC CONSULTATIONS

One of the "initiatives" in dealing with "council" disputes, instituted at Shellharbour Council, is "Public Participation". The procedure is as follows: For any item on Council's meeting Business Paper, any person interested in making a public presentation to Council about that item may apply to engage in "Public Participation". Then, at the meeting, when the item is dealt with, the applicant is invited to speak to the Council, to present their case. After the applicant is heard, the applicant may be questioned by the Councillors - for clarification if necessary. The Council itself then debates and determines the matter. The opportunity for public participation has been used, almost exclusively, by parties involved in, or projected to be affected by, development applications or by building applications. Since the instigation of public participation, the applicants (who are dissatisfied with the officer's recommendation) have had public and open access to the councillors, to present their case. This process delivers an "internal solution" wherever possible. Public participation has also provided "objectors" - adjacent owners, primarily, and "third party" interests (eg the "conservation lobby") secondarily, with access to councillors prior to the determining of the decision. (Public participation can be for some their "day in court". The access is not dependent on any prior relationship, any favour to repay, etc. and therefore is not as open to the risk of improper influence. The "public" forum brings its own constraints on participants for reasonableness, courtesy, etc.) The operation of public participation has been such that over the period: 1. 2. 3. the applicant's position has been heard, and the Council has settled on a less onerous approval than that recommended by the professional officers the objector's position has been heard, and refusal, or more stringent conditions have been applied in hearing either applicant or objector, Council has deferred decision making to allow for further discussions, deliberations, on-site inspections, further professional consideration of concerns raised. in hearing either applicant or objector the Council has adjourned its meeting to allow for informal discussions, exploration of "compromise position", etc, then reconvened to formalise the compromise position as the Council decision there has been a change with its policy/ practice to encourage "lay" participation (and discourage any professional legal takeover of the "public participation" process). If an applicant or objector seeks to have legal representation in
4.
5.
presenting their case, that is permitted, providing notice has been given to allow Council to have an equitable position. (Council's legal advisor is able to be present, and participates if necessary). It has not been unknown, at such proceedings, for informal advice to be given to parties to take their dispute to the Community Justice Centre. This mechanism was fairly radical in 1974. My understanding is that the "model" was Leichhardt Council. The mechanism has since spread to a number of other Councils. [The agitator, at Shellharbour Council, for its implementation, was the mayor at the time, Alderman RJ Harrison. His experience, prior to winning the mayoralty by a draw from a hat (administered by the local constabulary), included a number of years fretting on the sidelines as a member of the minority "opposition" in the Council.] A recent development, initially modelled, as far as I understand, by North Sydney Council, for more pro-active community participation in Council decision-making, is the Precinct Committee. This is a Council authorised forum for deliberations relating to local developments. Developers and objectors can deal with their differences in Precinct Committees. Precinct Committees can also be more pro-active, being used as the regularised consultative forum for providing input to the more "general" local environmental plan process. An even more recent development is the "charrette". This mechanism, of pre-application consultation, is convened for the larger scale development proposal. Here the stakeholders convene for a fixed period, in a structured and facilitated context, to: 1. 2. 3. consider the principle of the proposal, raise the principles (constraining conditions, etc., which must apply before approval will be granted) controlling the development, and undertake the relevant negotiations associated with gaining approval, in principle, to proceed with the preferred proposal.
Stakeholders include: 1. 2. 3. 4. developer/s landowner/s with a vested interest in the development proceeding adjacent landowner/s likely to be affected by the development, in some cases, adversely Council representatives with the responsibility of development control
5. 6.
Community representatives the relevant government department representatives which have regulatory obligations in the normal process
Over the years, Public Participation has provided Shellharbour Council with a necessary safety valve, in areas where it needs to manage dispute. The parties affected by Council's decision-making powers have been able "to be heard", and before the decision is made. It is difficult to know to what extent this has meant that: 1. affected parties have been satisfied with the "fairness" of the decision - given the circumstances, the nature/ concerns of objectors, interests of the developer etc 2. affected parties, though not satisfied with the decision, have determined to leave it there - "being heard" for them, was enough 3. the quality of decisions made has been improved Certainly, the question of inaccessibility, and/or wheeling dealing behind closed doors, is less able to be used as a challenge of Council's decision-making in the areas where there are different expressed interests and the use of public participation makes those interests known and open. There hasn't been a tendency amongst developers to approach litigation as a first resort. (Although it needs to be said that there are other constraints operating here: many developments are small scale - funds don't necessarily run to litigation or the timeframe involved.)
SEE ATTACHMENT 9 FOR AN INDICATION OF THE LEVEL OF LITIGATION IN THIS AREA FOR SHELLHARBOUR COUNCIL.
There have been times when Council has had to review the effectiveness of the process and its impact on Council's processes. In the first instance, public participation was placed on the council meeting agenda at the beginning of the open meeting. The affected parties had to give notice of their interest in the matter and their wish to "participate". These agenda items were then "taken out" of the normal sequence and promoted to this early position in the business of the council meeting of the night.
Once the affected parties' matter had been heard and the decision made, they would leave the Council meeting. This meant "a public gallery" for the public participation part of council, and a very empty gallery for the remainder of the Council business. This began to pall. (There being an element of the play-actor performing for the gallery in every public council meeting.) The Council changed procedure so that the public participation matter came on when it was scheduled in the ordinary course of the business. This means the gallery is around for a lot longer and needs to sit through the earlier business items. As such it can be seen to be an
"educative" process. However, to date, I haven't seen any evidence of it having that wider outcome - that folk who have become embroiled in a dispute where they have a personal interest (a "hot" issue for them) have moved into having a more general "active" interest in the activity of local government. The second development came when participants, especially from the "developer" side have sought to bring technical and/or legal professionals to present their case. In this instance, council was quick to limit public participation to "lay" participation. Not only did the councillors feel intimidated by the participation of the legal advocates, that their balance of power had been changed, they were also appreciative of the concern of officers that the kind of focus and preparations that such a legal advocate would make would be far in advance of the level of their own preparations, especially focussed on that one matter compared to a number (say 12 or so other items to be dealt with on the same night in the same agenda) that the decision-making could be distorted. The Council rules are now such that should an applicant wish to have a legal adviser represent them they need to be permitted to do so, and Council needs to have notice so that it might be arranged so that Council's legal adviser might also be in attendance to respond if necessary, and so to ensure that the power of expertise is balanced. A third development has arisen when the matter raises a significant level of local public interest, and more than three "objectors" are listed for public participation. To minimise repetition, the amount of time spent on the item, (and so not let the impact of the information lose its power) the council asks the group of objectors to nominate one or two to represent their case. A fourth development has come from instances where, following representations via public participation, a matter has been deferred for further consideration, and then returned to a later meeting. In these instances those engaged in public participation have endeavoured to have a "second bite of the cherry" - working over the same ground, seeking this time to persuade, when a previous effort was not fully successful. This occurs most often in a case when the developer/ applicant is appealing against an officer's advice to reject an application, or where the applicant is not happy with certain constraining conditions. Because of the approach, and the fixed position of the appellant, Council has lost some patience with these types of participation and has now instituted a rule limiting participation, on the one matter, at different meetings, to introducing new material.
Most recently, council has sought to have an indication, prior to the debate, of the nature of the participation before the event: is the participant in favour of the proposal or is the participant an objector? As noted, this process in 1974 was fairly innovative. It cannot be said, though, in this area, that Shellharbour Council has sought to break any further new ground. When Precinct Committees were established in other areas, Shellharbour Council has not sought to follow. There is still a very strong sense of possessiveness, in the decision-making, with the need to have the "power" to make the decision.
As noted elsewhere, the Local Government Act, 1993, has sought to challenge councils to be more pro-active in consulting their communities. In 1995, Council, using funds raised under Section 94, arranged for the conduct of a community survey on the use of recreational facilities. In the last year Shellharbour Council has been encouraged to participate in the "charrette" process for its rezoning/ structure plan deliberations for broad acre developments. From that experience it has developed a number of "focus groups" (working parties) to discuss issues involved in the preparation of a draft policy document for the use of rural land. At this point Shellharbour Council is about to consider undertaking the review of its corporate strategic plan for the future of the area. It has undertaken this task on two previous occasions: 1989 and 1991. On those occasions the process developed initially at a staff level, where a review of current trends indicated that Council needed to consider making a change in its policy direction in order to have a sense of leading instead of only reacting to pressures around it. The 1989 approach started with discussions amongst senior staff - endeavouring to develop a recognition of key concerns. Then a small committee of General Manager and a representative selection of ward councillors was formed which was guided through the thinking by another staff member. After some introductory consideration of issues, the senior representatives of each section of the Council briefed the committee on how they saw the present situation and the concerns they had, especially as they sought to respond to current needs through their division. At the end of these briefings, the committee recommended that the whole Council be presented with the same material. This was duly delivered at a full day session, held away from the Council Chamber, and orchestrated as a series of presentations from each of the departments. In 1991 the process was repeated. This time additional technical staff were involved in the joint planning for the preparations - a sort of dry run of the presentation, together with the development of further awareness of the matters at issue, and a discussion of ways to progress the previous deliberations. The briefings were now given directly to the whole Council, and held over a couple of nights. The structure of these briefings was similar to the previous - after the general overview, each section was free to make its specific representations. As the staff move into the preparations this time, it is apparent that what else is needed is input from the community: what are their aspirations for the future?, what concerns they might have, what priorities they might have which have not/ are not necessarily reflected in the "policy" of their current political representatives. Council's experience with public participation, and the way in which one small minority view can capture a "public" process and distort perceptions of community opinion, means that Council is seeking to structure any such consultation process in a way that will allow it to deal with these kinds of distortions, and to gauge a sound response. It is considering: focus groups, information gathering and response measuring by survey.
There will be occasions where the open public meeting will be needed: to set the scene for the process, to extend an opening to interested parties to participate; to report back findings. It is anticipated that these occasions will be fairly tightly controlled.
1. Providing a forum for the exercise of the right of parties affected by the decision to be heard before a decision is finalised Equity in power of representations Procedure to control process for effectiveness Variety of process, and choice of process most appropriate to the dispute and/or the stage the dispute has reached
2. 3. 4.
BIBLIOGRAPHY
LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL
Section 1
Section 1.1
Allen, D Equipping Staff to Handle Disputes Effectively in Local Government. [Unpublished] Research Assignment for course work on Dispute Resolution for the UTS MDR, May, 1996. Australian Bureau of Statistics, Local Government Finance: New South Wales, 1986, Australian Bureau of Statistics, [1989?] NSW Department of Local Government, Comparative Information on NSW Local Government Councils 1993, NSW DLG, 1995
Section 1.3
Senge, PM The Fifth Discipline: The Art & Practice of the Learning Organisation. Sydney: Random House, 1992. Field, L with Ford, B Managing Organisational Learning: From Rhetoric to Reality. Melbourne: Longman Australia, 1995. Lumsden, G Communicating in Groups and Teams: sharing leadership. Belmont, Calif.: Wadsworth Pub. Co., 1993 Whetten, DA & Cameron KS Developing Management Skills. NY: HarperCollins, 1995, 3rd ed. Gunzburg, D Identifying and Developing Management Skills. Canberra, AGPS: 1991.
Section 1.4
NSW Department of Local Government, Comparative Information on NSW Local Government Councils 1993, NSW DLG, 1995 Aulich, Chris, "Reforms in Human Resource Management in Australian Local Government"
[1995] Asia Pacific Journal of Human Resources, 33 (3), 92-104 National Review of Local Government Labour Markets, 1989 Discussion Paper No.1: Improving flexibility in Local Government Employment Discussion Paper No.2: Portability of Superannuation Discussion Paper No.3: Reciprocity of Qualifications across States Discussion Paper No.4: Improving Access to Skills Upgrading and Retraining for Local Government Employees Discussion Paper No.5: Discussion Paper No.6: Discussion Paper No.7: Discussion Paper No.8: Discussion Paper No.9: Recruitment and Personnel Development of Staff - Local Government Equal Employment Opportunities and Local Government in Australia: An Overview The Impact of Change upon the Local Government Workforce in the Medium Term Funding Options for Increased Investment in Education and Training for the Local Government Workforce Occupational Regulation: Statutory Positions in Local Government
Research Paper No.1: Labour Availability Survey: Rural and Isolated Municipalities Research Paper No.2: Local Government for a Changing Environment Research Paper No.3: Equal Employment Opportunity Legislation and Local Government in Australia Research Paper No.4: Results of the Local Government Labour Market Shortages Survey
Section 1.5
Allen, D Equipping Staff to Handle Disputes Effectively in Local Government. [Unpublished] Research Assignment for course work on Dispute Resolution for the UTS MDR, May, 1996. Allen, D Issues in Training in Negotiation Skills for an Organisational Setting. [Unpublished] Assignment for course work on Negotiation for the UTS MDR, June, 1996 Allen, D Facilitation: The Use of Mediation techniques & Processes in Resolving Differences in Group Decision-Making. [Unpublished] Assignment for course work on Advanced Mediation for the UTS MDR, November, 1996.
Section 2 Section 2.1
Derbyshire, J and Allen, D Land Between Two Rivers: a historical and pictorial survey of Shellharbour Municipality. Shellharbour Municipal Council, 1984 Bayley, WA Green Meadows: Centenary history of Shellharbour Municipality. Shellharbour Municipal Council, 1959; reprinted with index and minor factual tables updated 1986 Shellharbour Municipal Council, Community Services Division Community Profile, Shellharbour Local Government Area, 1994. Shellharbour, 1994
Section 3 Section 3.1

Allen, D Equipping Staff to Handle Disputes Effectively in Local Government. [Unpublished] Research Assignment for course work on Dispute Resolution for the UTS MDR, May, 1996. Allen, D Facilitation: The Use of Mediation techniques & Processes in Resolving Differences in Group Decision-Making. [Unpublished] Assignment for course work on Advanced Mediation for the UTS MDR, November, 1996. Senge, PM The Fifth Discipline: The Art & Practice of the Learning Organisation. Sydney: Random House, 1992. Field, L with Ford, B Managing Organisational Learning: From Rhetoric to Reality. Melbourne: Longman Australia, 1995. Bormann, Ernest G. Small group communication: theory and practice. New York: Harper & Row, 1990, 3rd ed.
Section 3.6
Allen D, The Shellharbour Area 1975. Paper prepared for Shellharbour Council. Allen D, The Illawarra Region Report: A Preliminary to Planned Development. [Limited publication] 1974 Shellharbour City Council Section 94 Contributions Management Plan (Third Review, 17 July, 1996). Shellharbour, 1996 Local Government Act, 1993 Environmental Planning and Assessment Act, 1979 Stuckey, EB Bluett Local Government Handbook (New South Wales). Sydney: Law Book
Company 1987, 11th ed. Stuckey, EB Bluett Local Government Handbook (New South Wales). Sydney: Law Book Company 1994, 13th ed.
ATTACHMENTS
LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL ATTACHMENT 1: INTRODUCTORY REMARKS:
One of the difficulties that I have faced with this assignment is to "craft new ground" for this assignment when I have used the "organisational" context as the "spur" in the three previous assignments done to date. The first assignment looked at
EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENTABSTRACT:

This paper seeks to address the task of equipping local government staff to effectively handle disputes that arise in the workplace. The paper seeks to do this by: 1. 2. 3. 4. 5. 6. 7. 8. reviewing the context of local government reviewing the nature of disputes that present in the local government workplace identifying the skills required in dealing with those disputes looking at the training required to develop those skills reviewing the current training that is readily available to local government considering the development of dispute handling systems appropriate for a local government body considering a training plan to develop dispute resolution skills, for a local government body reviewing some of the literature of dispute resolution to see what insights may be provided from this alternative source
The second assignment, looked at
ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING ABSTRACT:

This report seeks to explore the issues arising from the consideration to provide training in negotiation skills in the workplace.
The report does this by: 1. reviewing impressions and implications from personal experience of negotiation skill training 2. reviewing recent literature on the subject 3. seeking to apply these reflections to the task of determining curriculum and presentation - training techniques. The report notes the nature of effective negotiation skill training: with its inherent "interpersonal" aspect and the reliance on experiential learning, often in the context of a simulation, or role play. Since interpersonal (and hence negotiation) skills are reflected in behaviour, and behaviour is instructed by the formation of self-concept (the intrapersonal), the individual needing such training most is the one who has a dysfunctional behaviour formed as part of their self-concept. To change this behaviour requires framebreaking and new frame formation. This is a task which is complex; takes time; and will require significant effort by participant and trainer, with the trainer especially on notice to sustain a model of consistent pattern of behaviour congruent with the new frame, and to provide instruction on the new frame of perception and approach and reinforce congruent behaviour in the participant when it is attempted. The risk of effective framebreaking is that it may include psychological breakdown. In that event, if the training has been sponsored by the organisation, then the organisation has some responsibility for having contributed to the breakdown. Without adequate management of the training, the events, and the consequences, and adequate support to maintain the individual while the new frame is constructed, the organisation could be held responsible for negligence through current occupational health and safety legislation. Planning and delivering such training, if required of the organisation, is then a very sensitive issue, requiring support mechanisms not always associated with a typical training program. The third assignment looked at
FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP DECISION-MAKING ABSTRACT:
The task of facilitating group endeavour is particularly relevant to current social conditions.
It is important in the development (or maintenance) of organisational effectiveness. For those involved in, or associated with, local government, community consultation and participative decision-making is becoming an increasingly important part of responsiveness to community expectations. The new legislative context delivered by the Local Government Act, 1993, makes such things part and parcel of the local public policy process. Facilitation is beginning to be seen as a significant tool in such consultative and participative contexts. Its capacity includes an ability to assist in conflict management, or dispute resolution if necessary, having a role to play in helping communities deal with differences which might otherwise develop into debilitating disputes. This report seeks to 1. 2. explore the nature of facilitation of group activity and give some consideration to the task of developing facilitation skills for use in the workplace (especially as applied to local government).
It does this by: 1. 2. looking at the activities and processes used in the alternative dispute resolution process of mediation, and identifying how much common ground there is between mediation and the activities and processes used in facilitating group processes and group decision making.
It then looks, in some detail, at the present level of understanding of group processes.
The report then seeks to gather this, and other study*, together and to conclude with a consideration of the basic requirements in the development of knowledge and skills for facilitators. (The knowledge and skills identified are obviously useful, and applicable, to the mediation of multi-party disputes.) (*Other study: "Equipping staff to handle disputes effectively in local government" - Assignment for Dispute Resolution Unit, May 1996)
I consider that these assignments, individually, and as a composite, demonstrate my ability to apply the elements of dispute resolution to an organisational context, and so, essentially meet the requirements of this assignment.
I have therefore had some difficulty in creating "new ground" in which to work, in which the benefit of such work (primarily that I might be better equipped for my task in the organisational context) might accrue. I have chosen to look more closely at some of the experience Council and its personnel have had with disputes: the context, the approach, and considered how one might use these as a launching point for training, and what particular lessons, elements of effective approaches to dispute resolution, these examples might demonstrate.
ATTACHMENT 2 EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Section 1
1. 1.1 THE CONTEXT OF LOCAL GOVERNMENT SUMMARY REMARKS 1. 2. There are a diversity of disputes needing to be dealt with in the "ordinary course of events" in the local government workplace context. There are a range of levels within the organisation where, if effective dispute resolution occurs, at the first presentation ("at source"), operations will be more efficient. A significant number of disputes present in the context of no previous relationship (contact?), with little likelihood of an ongoing contact (relationship) - eg single, first and last time, customer contact. Other disputes present in the context of an ongoing relationship. These are vital to the well being/ development of community cohesion, either within the organisation itself as a "community"; or within the community at large. There are a range of current pressures from change: social, technological, constitutional, which are impacting significantly on local government. This overall pressure of change has the potential to expose previously "wearable abrasions" into something more significant. The most significant of these are: 5.1 Award restructuring - shift of industrial context from (outside of the organisation) the Commission to (inside the organisation) the Consultative Committee; awards; personnel processes; enterprise bargaining; etc 5.2 Local Government Act changes - transparency, accountability, community consultation 5.3 EEO management plan - grievance process (Local Government Act requirement) 5.4 Competitive tendering. (There are certain minimum requirements already which call for exposure to public tendering. There is the quest for efficiency and accountability. There is the flow-on of change process from UK -> NZ -> Victoria -> who knows where next - it is certainly "kicked around" as an option for NSW ??) 5.5 Best practice - performance measures, comparisons, benchmarking, etc There are the particular pressures that occur within the development of
3.
4.
5.
6.
bureaucracy; bureaucracy/ elected representative interface; and proximity of electorate 6.1 Legitimate lobbying 6.2 Ombudsman process development 6.3 1.2 ICAC process development
AN OVERVIEW OF LOCAL GOVERNMENT IN NSW:
1.2.1 A Demographic Thumbnail Sketch:

Local Government in NSW is, on the one hand, "homogenous" - its practices dictated by the same state legislation. On the other hand, there are significant levels of essential diversity: 1. There 173 local government areas from Sydney City to Windouran. At this stage they are categorised by the Local Government Grants Commission into four major categories, with a total of 11 subcategories: 1 2 3 4 2. 3. 4. 5. Councils in the Sydney Statistical Division [45 councils] Non-Metropolitan councils which are predominantly Urban (Shellharbour City Council's category) [21 councils] Coastal Councils [18 councils] Rural - Councils with Significant Rural Areas [93 councils]
6.
7.
8.
Sydney City is a complex urban area with a significant mesh with the seat of State Government. Windouran, in the central Murray area, has a population of about 500. The area with the largest population is Blacktown with an estimated 199700 in 1986. There are 124 areas with populations less than 31,000 (the average population per area in 1986). (The Shellharbour Local Government area has a population of 50,000 and this is growing at the rate of 2% per annum.) Staff sizes range from 20 staff to in excess of 1000 staff. (Shellharbour Council has a staff complement of the order of 220, in 1993 the staff to 1000 population ratio was 4.45, the eighteenth lowest. Baulkham Hills had the lowest staff to population ratio at 3.39.) Annual resources, at the disposal of elected representatives, range from $1.5 million to $150 million. (Shellharbour Council's annual expenditure from revenue resources is of the order of $27 million.) In terms of personnel development: 8.1 the average staff to 1000 population ratio in local government in NSW is 6.00*, 8.2 the number of local government bodies with a population of 24,000+, and so likely to have a workforce in excess of 145, is of the order of 60, ie a little over one third of the industry is at this level
(A workforce of 145 is the level at which there might be justification for designating a position for a human resource professional from the Howes 1995 HR benchmark figures [Howes P "Benchmarking '95", HRMonthly, July 1995, 1014]) [*6.00 is only a rough and indicative estimate extrapolated from category averages ranging from 4.75 to 12.37] 8.3 therefore the personnel function is likely to be poorly developed in the majority of councils.
1.2.2 The Nature of Autonomy in Local Government:

Within the constraints of legislation determined by the State Government, each local government body is autonomous. Each Council is able to determine, with little or no reference to what other local government bodies are doing, what its priorities might be. From 1919-1993, when the previous legislation operated, that autonomy was constrained by a significant body of regulatory legislation. One of the purposes in this was to ensure predictability between local government areas, in rules to govern development, building, etc. One of the consequences however, was something that amounted to a "restriction of trade". Certain senior staff positions were mandatory, with industry-derived accreditation. This tended to "protect" the industry from competition. There was little or no transfer of personnel, skills and (maybe improved) processes from the other two tiers of public administration. There was hardly any challenge from private sector management expertise. There was no encouragement to take any initiative to change and adapt to current pressures of the industry's operating environment. From 1977 to the present, the autonomy of local government has also been constrained by regulation of rate increases, by the NSW State Government, of both political complexions.
1.2.4 The Impact of Urban Growth in the Sydney Metropolitan area and its immediate hinterland:
The post World War 2 growth of some local government areas and infrastructures on what was the fringe of Sydney (Blacktown, Fairfield, Sutherland, Penrith, Gosford, Wyong, etc.) yielded: 1. 2. 3. substantially sized organisations, under significant economic pressure from growth, within the constrained economic climate of rate pegging, (since 1977).
These changes were beginning to be reflected in: 1. 2. 3. 4. demands additional performance from staff resources, and the need to put in place more leading edge personnel systems, and provide for delivery of incentives for performance, internal structural change from standard hierarchies to flatter organisations with interdependent work teams.
The independently determined, "professional" or "occupationally" derived awards in place were not keeping pace with these changes. The diversity of "professional"/ "occupational" awards reflected "patch" jealousies. The rates of pay reflected industrial muscle and/or market. In these circumstances there were significant problems with equity. The general awards, except at the "Senior" staff level, did not give any cognizance for a need to be able to flexibly respond to specific locational circumstances. Local Government, in line with most other industries, now needed a mechanism to allow it to explore workplace reform. This would allow individual councils to respond more positively and effectively to significant differences in context. What was needed for a city based area was not necessarily applicable to either a regional town or a south-western rural district. The award developed in 1991 fulfilled most of these needs. Those councils which had been actively struggling with the task of developing contemporary personnel systems (consistent with organisational restructure) were able to act quickly, or formalise actions taken to that date, within the new award structure. These changes also delivered independent support for their progress with strategic personnel developments. This change was then reinforced by the long awaited and much debated changes in the Local Government Act, 1993. This legislation now required open competition for work in local government and selection on merit, and the establishment of an Equal Employment Opportunity Management Plan for each local government body.
1.3
STRUCTURE & SOURCES OF PRESSURE FOR PERFORMANCE IN LOCAL GOVERNMENT:
Structurally, for local government, there are at least 9 major components: 1. The Electorate: ordinary people, lobbyists, in their ward structures, political party branch members, the candidates before pre-selection and after nomination, representatives The Elected Council: Labour pre-selected & elected; non-aligned independents; representatives of emerging political movements - eg Greens, Democrats; government (majority) and opposition (minority); ward groupings The Senior Staff: Town Clerk/General Manager; Senior professionals: Engineer, Town Planner, Health & Building Surveyor, Treasurer, Others (Chief Librarian) The professional/ technical staff The operational staff
2.
3. 4. 5.
And externally: 6. 7. State Government & Department of Local Government; Local Government & Shires Association; (and to a lesser extent the "industry" interests/concerns
8. 9.
- solidarity in a hostile world - hostility from other political spheres - State; Federal; - the private competitive market seeking access to new areas of operation; - the international "best practice" context - NSW vs other States; NZ; USA; UK Local Government practice, etc) Staff Associations: Municipal Employees Union, HABSA, Engineers Association, Clerks Association/Institute of Municipal Management Clients/ Business Interactions: Landowner/Developer; Development/Construction firms; Contractors & Suppliers; Community organisations; Federal Government
1.4
ANALYSIS OF INTERESTS GENERATING PRESSURE FOR PERFORMANCE ON LOCAL GOVERNMENT:
The following list identifies the major types/ sources of differing interests which generate pressure for performance on Local Government: 1. Federal Government - using local government as an agency in delivering federal policy outcomes: eg labour market programs; social development programs (child care); regulating to achieve national objectives - micro-economic reform State Government - using local government as an agency in delivering state policy outcomes: eg community service (youth programs); devolving responsibility for regulation etc to the local level - houses of ill fame from "police" to town planning area Ordinary people - ratepayer - value for money (rate dollar); community services - facilities (sporting, community, cultural, etc); infrastructure - roads, etc; specific services - building applications etc; Lobbyists: environmental; business; Elected representatives - re-election; policy implementation; community development Political parties - establishing a more formal involvement and expression at the local government level to build community profile and acceptance Staff - professional satisfaction Staff - employment security and pay for performance Local Government & Shires Association higher profile/value to local government industry performance; comparative performance/ leadership reputation in the wider local government industry Staff associations - industrially advantageous conditions for employees Businesses - permission to develop within (minimum) economically viable constraints -
2.
3.
4. 5. 6. 7. 8. 9.
10. 11.
1.5
A BRIEF HISTORY OF AN EXAMPLE DEMONSTRATING THE IMPACT OF
THESE VARIOUS PRESSURES, AND THEIR SOURCES, ON DISPUTES AND THE DEVELOPMENT OF DISPUTE RESOLUTION MECHANISMS: These competing interests have meant that the incidence of disputes has increased and the processes to resolve such disputes have been refined over time. In the area of regulatory responsibilities, the recent history in NSW provides a useful indication of the outworking of the task of balancing these diverse and competing interests. It also demonstrates the interactive impact of State Government, Local Government and the community represented by individuals and lobby groups. For instance, with the Local Government Act, 1919, the post-war growth of urbanisation brought the need for legislation to regulate competing interests in the use of land (Town Planning). This led to amendment of the original legislation. Eventually it required the formation of a separate act of parliament, the Environmental Planning & Assessment Act, 1979, (EP&A Act) to deal with this issue. A significant component of that legislation has been to: 1. 2. 3. define the matters that need to be addressed in assessing any proposed development; broaden the rights of parties to participate in the process to decide a matter; and establish a Court to hear disputes in the area, with the option, in that process, of mediating a solution for the contesting parties
The refinement of dispute recognition, and the processes to resolve such disputes, has taken the following course: 1. 1919-1979: Council the only decision-making authority - with right of appeal to the Minister of Local Government concerning impropriety; independent investigation by the Department of Local Government concerning the alleged impropriety; or appeal to the Court in Equity for compensation of losses associated with such decision-making 1979: Interposition of the Land and Environment Court to review such decisions on appeal Right of interested party to object formalised Right of interested party with objection to be heard at formal hearings Right of third party (public interest) to object formalised Right of third party (public interest) to be heard at formal hearings Establishment of mediation as option/ preliminary to full enquiry Categorisation of some kinds of developments ("designated developments" as indicated in EP&A Act ss 78-83) as having a wider than developer/council impact, (ie having a general public interest - or a significant, regional, environmental or economic impact) and therefore needing a separate EIS, a Commission of Enquiry, a Ministerial decision
2. 3. 4. 5. 6. 7. 8.
These refinements have endeavoured to: 1. 2. Review the initial decision of refusal or conditional approval (where conditions have been held to be onerous) Provide a mechanism/ forum for all parties affected by the decision to be consulted, their interests to be heard, and therefore taken into account in the approval process Ensure that (wider) public interest concerns can be heard
3.
In 1993, the revised Local Government Act sought to establish common principles of administrative procedure, and to draw back from centralised regulation. Within this philosophy, the new legislation seeks to encourage processes which achieve consultation, formal submission, and relevant review, at the local level, prior to making a decision, and this may assist with the dealing with disputes by providing for effective participation of affected parties at an earlier stage.
ATTACHMENT 3: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT Section 2
2.
2.1
INTERACTIONS/ POTENTIAL FOR DISPUTE IN THE LOCAL GOVERNMENT WORKPLACE:

OVERVIEW
In the exercise of local government, there are a variety of interactions where there is the potential for dispute, and disputes with significant differences in nature. The basic interactions are: 1 2 3 4 5 Customer Service: Regulatory responsibilities: Staff interactions: peers; superior/ subordinates; industrial Involvement in Community development: New legislation: transparency, accountability, interactive processes FOI Revised Processes: Documentation; exhibition; submission; consideration; decision
2.2
DETAILED BREAKDOWN OF INTERACTIONS:
2.2.1 Customer Service:
There are a variety of (Council) staff / customer interfaces. Typical examples are: 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Cashier and ratepayer Counter Clerk and service/information seeker Accounts Clerk and debtor or creditor Regulatory Officer and applicant Elected representative and elector with enquiry/ complaint/ policy position to lobby Professional Officer and Community Organisation Representative Professional Officer and complainant
2.2.2 Regulatory Responsibilities:

There are a variety of regulatory officer and applicant interfaces: 2.1 2.2 2.3 2.4 2.5 2.6 2.7 Building Inspector and Building Applicant Building Inspector and Building Owner/ Occupant Town Planner and Development Applicant Engineer and construction firm representative Professional Officer and Contractor Health Inspector and Licence Applicant or Holder Ordinance Officer and facility user
2.2.3 Staff Interactions: Peers; Superior/ Subordinates; Industrial

There are a variety of staff interactions, at a variety of levels, for a variety of issues: 3.1 Peers: Personal interactions - personality, style, values differences - if gender or racially based, or determined by other areas where discrimination is now illegal can lead to discrimination/ harassment appeals Superior/ subordinate: allocation or control of work; discipline; performance appraisal; recommendation for allocation of satisfying work; recommendation for promotion Staff and Union representative Staff in Union membership interactions Staff in task-related interdepartmental interactions Staff Representatives in representative forums: interacting with one another interacting with management representatives
3.2
3.3 3.4 3.5 3.6
2.2.4 Involvement in Community Development:

There are a variety of levels of this kind of interaction: 4.1 (Social Work) Professional Officer to Client (if case-work is done)
4.2 4.3 4.4 4.5
(Social Work) Professional Officer to Community Group Professional Officer to Community Representative Councillor to elector (especially when elector is a Community (Group) representative, or voicing a sectorial concern) Councillor with Community Organisation (especially when the Councillor is the Mayor)
2.2.5 New Legislation: Transparency, Accountability, Interactive Processes

The Local Government Act, 1993, has established a variety of mechanisms, by way of statutory obligations, which are designed to achieve the goals of transparency, accountability, consultation. The key provisions are: 5.1 5.2 FOI: The application of Freedom Of Information legislation to local government organisations and activities Access to key policy and practice Documentation: Policy & Procedure documents Annual Report Financial Report Management Plans - Organisational Management Plans for Use of Community Land Process of Draft - Exhibition - Submission - Determination in the development of key policy matters: Land Use Local Control Plans Management Plan (including forward financial plan - Budget) Revised Processes for dealing with applications for buildings, development Application; Notification; Exhibition; Submission; Consideration; Decision; Right of Appeal Processes for Appeal - eg prior to the "giving of an order"
5.3
5.4
5.5
2.3
INTERACTION AND POTENTIAL FOR DISPUTE:
When these interactions are handled effectively, accurate information is conveyed, the recipient is adequately informed and able to progress their business interests efficiently to an agreed conclusion. When there is some problem, for either party to the interaction, and a conflict arises, the mechanisms used by (especially) staff to contain the conflict become vital to both parties to the interaction. The recognition of this, by: 1. 2. formulating policy and practice on process & mechanisms for raising grievances and reviewing advice given and/or decisions made ensuring staff awareness, and skill development to handle the level of interaction expected of them, in their respective roles
3.
providing training in specific interaction skill development, as applicable to the Local Government context
becomes a vital part of a local government body's effectiveness.
2.4
KINDS OF DISPUTATIONS:
The differences of interest (detailed in Section 1.4) are real, and reflect in a vast variety of disputations/ potential for disputation: from one person versus the Council, to a wrangle involving the issue of legal interpretation with state-wide implications (the "precedent" case) The major categories of differences in disputes are: 1. 2. 3. 4. 5. 6. 7. Disputation on the council in the public forum: political polarisation Disputation between councillors & senior staff Disputation between management & staff Disputation between Council & State Government / bureaucracy - Housing Commission & Landcom etc Disputation between Council & large developers Disputation between Council & residents: development/ winners & losers Disputation between residents where Council can be drawn in (because of regulatory role or policy of pro-active community development)
Within these categories there are a range of potential for dispute: 1. Disputation on the council in the public forum: political polarisation A. B. C. D. E. 2. Between clear political opponents - pre-selection & pre-election Between clear political opponents - post-election through period of office government vs opposition Within a political group - labour group - policy differences; political ideology stands; Impact of external parties - the different policy emphasis lobby; singleissue interest lobbying; intra-party political power plays Between Mayor and Councillor/s
Disputation between councillors & senior staff A. B. C. D. Mayor and Town Clerk/General Manager Mayor and individual Senior Staff Member Councillor and Senior Staff Member Elected representative and staff member
3.
Disputation between management & staff A. Individual complaint
B.
"Class" complaint
THEN WITH UNION INVOLVEMENT C. 4. Union "political" agenda -
Disputation between Council & State Government / Bureaucracy - Housing Commission & Landcom Etc A. B. Autonomy / Control complaint Differences in political priorities
5.
Disputation between Council & large developers A. B. Development Control - general Development conditions - particular
6.
Disputation between residents: development/ winners & losers A. B. C. Development Control or Conditions - particular Building Control or Conditions - particular, and especially for extensions Miscellaneous other regulatory functions of Council - dog & stock control; off-street parking of heavy vehicles; home occupation usage; etc
THESE DISPUTATIONS CAN BE AN ENDEAVOUR BY ONE OR OTHER OF THE PARTIES TO EMBROIL COUNCIL DECISION MAKERS (AND/OR OFFICERS) WITH REGULATORY POWERS TO CONTROL AND/OR PUNISH AND SO DEAL WITH INTERPERSONAL RELATIONSHIP DIFFICULTIES BETWEEN ADJACENT OR NEAR NEIGHBOURS
ATTACHMENT 4: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Section 6 6.
6.1
DEVELOPMENT OF DISPUTE HANDLING SYSTEMS APPROPRIATE FOR A LOCAL GOVERNMENT BODY

RANGE OF DISPUTE RESOLUTION PROCESSES OPEN TO LOCAL GOVERNMENT
The range of dispute resolution processes open to local government is not necessarily limited. There are some occasions when the issue of propriety (openness in government in the public forum, and transparency, and accountability) is raised. In this instance the process may not allow for confidential agreement reaching since it could be perceived as "improper" behaviour potentially corrupt, or collusive: ignoring the public interest, etc.
With issues of (wider) public interest, the less formal, in-house resolution may also be perceived to be inappropriate. Some indications of typical applications of the range of dispute resolutions in local government, and areas where they are applied, is as follows: DISPUTE RESOLUTION PROCESS: Direct Negotiation EXAMPLES OF WHERE THE PROCESS IS TYPICALLY APPLIED: Employee & Immediate Supervisor Employee with delegated authority & Developer - working through application to reach position of conformity with policy, therefore approval (with or without conditions) Indirect Negotiation/Facilitated Negotiation Union Representative (staff) /Management; Union Organiser/ Management; Union Organiser/Local Government & Shires Association Industrial Division (peak employers' representative) Indirect Negotiation/ Professionally represented parties Mediation - voluntary bipartisan initiative Mediation - voluntary, bipartisan, but prerequisite of arbitration Expert Appraisal Conciliation Expert Determination Arbitration Litigation Partnership Industrial Court Commission of Inquiry EP&A Act Industrial Court Court of Appeal Council's solicitor to appellant solicitor
ADB approach Land & Environment Court
6.2
PREVENTION
The most strategic activity of a Local Government body in developing dispute handling systems will be those that seek to prevent the "difference" from developing into a "dispute". This can be done by the development of:
1. 2. 3. 4. 5.
induction processes training strategies culture - having an organisational culture which deals with people with respect, support, fair dealing, ethical decision-making systems to manage administrative and decision-making process to achieve efficiency, consistency, transparency, fair dealing, etc quality management ability among staff charged with supervisory responsibility
6.3
INTERNAL MECHANISMS FOR DEALING WITH DISPUTES
The next level of organisational development required to provide an effective dispute handling system is the provision of reliable and functional mechanisms for dealing with particular kinds of disputes. These typically are: 1. 2. complaints handling system - for the outsider (client) complaining of the organisation (the business, its service, its staff-client interaction behaviour) grievance handling system - for the insider (staff member) complaining of the organisation (their peers, supervisors, personnel policy, personnel practice, etc)
At this stage, Shellharbour Council's Complaints Handling System is under close scrutiny as Council endeavours to implement a one-stop-shop for clients involved in the development/ building/ construction activity in the area. So far as the Grievance Handling System is concerned, at Shellharbour Council, this is also in its infancy. Its development has been predicated by the requirement in the Local Government Act, 1993, to institute an EEO Management Plan. That process has been identified the need for an effective Grievance Handling process (Local Government Act, 1993, S. 345). Its development has also been stimulated by the award restructuring process and the formation of local consultative committees to deal with some general local workforce industrial matters locally, noted previously (See previously in this report Section 3, especially 3.2 & 3.8). Indeed the Local Government (State) Award has progressively developed this section of the award to reflect some of this change. (For the copy of the relevant Clause, see Attachment 10.)
6.4
EXTERNAL MECHANISMS FOR DEALING WITH DISPUTES
Regardless of the existence and effectiveness of the above two processes, there will always be a need, for Local Government, to have, and know, that there is a third level of dispute handling: that provided by the external mechanisms. These external mechanisms include:
1. 2.
the courts other legal monitoring agencies: ADB, Ombudsman, ICAC, etc
Attachment 11 indicates where such external mechanisms come in, and for what kinds of disputes/ complaints.
6.5
CURRENT DEVELOPMENT IN DISPUTE HANDLING MECHANISMS
The Local Government Act, 1993, encourages, and sometimes mandates, processes for consultation and participation in decision-making. With such mechanisms available, and with a conscious effort on the part of staff and Councillors to use such mechanisms effectively, there is the potential to minimise the necessity for the use of external dispute resolution mechanisms. These processes include: 1. the process of draft, exhibition, submission and decision for: 1.1 management plans 1.2 financial plans (budget) 1.3 management plans for the use of community land 1.4 local area control plans 1.5 code of meeting practice the process of application, public notice, exhibition, with interested/ likely to be affected party notification, submission and decision for: 2.1 development proposals 2.2 building proposals community consultation requirements -> programs, projects, forums initiated by the responsible Local Government body
2.
3.
6.6
AN EXAMPLE AT SHELLHARBOUR COUNCIL: PUBLIC PARTICIPATION
One such example of a relatively pre-emptive dispute resolution process used at Shellharbour Council, since 1974, is Public Participation. For any item on Council's meeting Business Paper, any person interested in making a public presentation to Council about that item may apply to engage in "Public Participation". Then, at the meeting, when the item is dealt with, the applicant is invited to speak to the Council, to present their case. After the applicant is heard, the applicant may be questioned by the Councillors - for clarification if necessary. The Council itself then debates and determines the matter. The opportunity for public participation has been used, almost exclusively, by parties involved in, or projected to be affected by, development applications or by building applications. Since the instigation of public participation, the applicants (who are dissatisfied with the officer's recommendation) have had public and open access to the councillors, to present their case. This process delivers an "internal solution" wherever possible.
Public participation has also provided "objectors" - adjacent owners, primarily, and "third party" interests (eg the "conservation lobby") secondarily, with access to councillors prior to the determining of the decision. (Public participation can be for some their "day in court". The access is not dependent on any prior relationship, any favour to repay, etc. and therefore is not as open to the risk of improper influence. The "public" forum brings its own constraints on participants for reasonableness, courtesy, etc.) The operation of public participation has been such that over the period: 1. 2. the applicant's position has been heard, and the Council has settled on a less onerous approval than that recommended by the professional officers the objector's position has been heard, and refusal, or more stringent conditions have been applied in hearing either applicant or objector, Council has deferred decision making to allow for further discussions, deliberations, on-site inspections, further professional consideration of concerns raised. in hearing either applicant or objector the Council has adjourned its meeting to allow for informal discussions, exploration of "compromise position", etc, then reconvened to formalise the compromise position as the Council decision there has been a change with its policy/ practice to encourage "lay" participation (and discourage any professional legal takeover of the "public participation" process). If an applicant or objector seeks to have legal representation in presenting their case, that is permitted, providing notice has been given to allow Council to have an equitable position. (Council's legal advisor is able to be present, and participates if necessary).
3.
4.
5.
It has not been unknown, at such proceedings, for informal advice to be given to parties to take their dispute to the Community Justice Centre. This mechanism was fairly radical in 1974. My understanding is that the "model" was Leichhardt Council. The mechanism has since spread to a number of other Councils. [The agitator, at Shellharbour Council, for its implementation, was the mayor at the time, Alderman RJ Harrison. His experience, prior to winning the mayoralty by a draw from a hat (administered by the local constabulary), included a number of years fretting on the sidelines as a member of the minority "opposition" in the Council.] A recent development, initially modelled, as far as I understand, by North Sydney Council, is the Precinct Committee. This is a Council authorised forum for deliberations relating to local developments. Developers and objectors can deal with their differences in Precinct Committees. Precinct Committees can also be more pro-active, being used as the regularised consultative forum for providing input to the more "general" local environmental plan process.
An even more recent development is the "charette". This mechanism, of pre-application consultation, is convened for the larger scale development proposal. Here the stakeholders convene for a fixed period, in a structured and facilitated context, to: 1. 2. 3. consider the principle of the proposal, raise the principles (constraining conditions, etc., which must apply before approval will be granted) controlling the development, and undertake the relevant negotiations associated with gaining approval, in principle, to proceed with the preferred proposal.
Stakeholders include: 1. 2. 3. 4. 5. 6. developer/s landowner/s with a vested interest in the development proceeding adjacent landowner/s likely to be affected by the development, in some cases, adversely Council representatives with the responsibility of development control Community representatives the relevant government department representatives which have regulatory obligations in the normal process
ATTACHMENT 5: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Section 7
7.
PRELIMINARY CONSIDERATIONS FOR A TRAINING PLAN TO DEVELOP DISPUTE RESOLUTION SKILLS FOR A LOCAL GOVERNMENT BODY AND THE CONCURRENT DEVELOPMENT OF DISPUTE MANAGEMENT SYSTEMS:
GENERAL REMARKS:
7.1
Any training plan for an organisation does not (and should not) exist in isolation of the other activities of the organisation. In considering the training plan to develop dispute resolution skills, three issues need to be taken into account: 1. Since the skills involved are "fundamental" to a number of operations, and applied at a number of levels in the organisation, the training of these skills, the raising of issues related to the exercise of dispute resolution skills, can occur in a number of training contexts, without being "recognised" as "dispute resolution"
skills. ie there will be two levels of skill training related to dispute resolution: 1.1 key skill training - dispute resolution element secondary - may or may not be addressed explicitly in the training deliberate dispute resolution skill training - where key skills elements (like communication, negotiation and process) are specifically applied to dispute/ complaint/ grievance/ customer service/ staff interaction management contexts
1.2
2.
Since the skills have no value unless exercised, the mechanisms of monitoring effectiveness of operations will have a key role to play in helping to identify where there are skill gaps, where there is need for skill enhancement, and, over time, where such directive training has achieved its purpose.
3.
The training plan for the development of dispute resolution skills will need to take into account, and contribute to, the total dispute management culture and system of an organisation.
7.2
ARTICULATION OF DESIRED CORPORATE CULTURE OF DISPUTE MANAGEMENT:
As noted above, for the dispute resolution training to have impact, be effective, it needs to be supported by an organisation's culture which has as its theme: the management of disputes by the first receiver taking effective action to resolve differences before they become disputes. Such a culture may be described as a "customer service" culture - especially when it explicitly recognises both internal and external customers. Such a culture is developed both formally and informally. When such a culture is being introduced to an organisation which hasn't recognised this as a pervasive element of its operations in the past, significant resources will need to be deployed for the initial exposure of all staff to the new values and the skills required to meet the new expectations. Ideally, this training will then be followed up by performance measure and appraisal to reinforce changed organisational expectations that 1. 2. these new skills, this new behaviour, are now to be applied in the hurly-burly of day-to-day work, and unless it is there, a person's position is at risk.
Secondly, this culture development, by internal training, will need to be supported by a staff
selection process that weights the importance of these skills highly, and selects individuals who have evidence of the preferred behavioural responses as part of their normal, preferred modus operandi. Eventually, the preferred values implicit in such communications/ negotiation style/ process knowledge and action will become the implicit values of the organisation. It is probably at this stage that there is greatest risk of "taking the skills for granted", and losing the focus on, and impetus for, such deliberate skill development and enhancement. To build such a culture, there needs to be an explicit approach to the matter by means of: 1 2 3 Draft enunciation Consultation Revised enunciation - formal adoption: Council Policy process
7.3
COMMUNICATION OF KNOWLEDGE:
There needs to be recognition that the process of knowledge development within an organisation can be deliberately and explicitly encouraged by the organisation within a structured context to enhance present levels of knowledge. Some of these mechanisms have been employed in the past. There needs to be greater awareness of the processes as a deliberate technique, and an accepted part of the organisational process. In some instances these processes will be need to be established within some scheduling framework and have a reporting-back mechanism to ensure it is accomplished. The components of the whole process include: 1 2 3 4 5 6 Building of knowledge skills historically Sharing of knowledge informally Sharing of knowledge formally Documentation of knowledge Research of additional options Structured training (focussed on knowledge and skills development where relevant) 6.1 Induction: Staff & Councillors (Shellharbour: 1994/1995 initiatives) 6.2 Customer service training (Shellharbour: 1993 & 1995 sessions; becoming formal part of corporate training - Management plan; Training Plan) 6.3 Conflict resolution training (Shellharbour: 1993 & 1995 sessions); 6.4 Negotiation training 6.5 Management role training (Shellharbour: commenced 1993) 6.6 Train-the-Trainer training 6.7 Workplace Assessor training
7.4
DEVELOPMENT OF SKILLS:
The situation that Shellharbour Council faces at present is as follows: 1. 2. 3. 4. It is one of on-going change and continuous growth. In tandem with this community growth there will also be organisational growth. The old "leisure" to develop skills by trial and error is gone. The old "culture" of internal promotion based on technical success (otherwise known as the Peter Principle - promoting to the level of incompetence) must also change. The demographics of an earlier, small, stable and mostly rural community is changing rapidly. (There is a much greater ethnic mix from new residents. There is now a less homogeneous socio-economic mix.) The distance (in culture and personal relationships) between community and Council staff is growing.
5.
6.
All these changes increase the risk of staff having less effective responses to situations with the potential for dispute. The nature of the potential dispute is also increasing in its capacity to create havoc, damaging: people, relationships, economic viability, etc. In this context, taking a deliberate approach to staff skill development in the areas relevant to the effective management of disputes is a vital strategic element of the organisation's management. Some options for the relevant staff skill development include: 1 Role plays
(The Development Dimensions International training modules & resources include role play material. This material is currently used in the Interaction Management training being delivered as part of Shellharbour Council's current corporate generic training. Its application is included in the structured training noted above - especially 6.2; 6.3; 6.4) 2 The inclusion of less experienced staff, as observers, in events involving disputation and where experienced and competent staff are consciously engaged in seeking to manage or resolve the dispute Gradually involving less experienced staff in negotiations with disputants, and progressively increasing the involvement/ level of responsibility in the negotiations
(These last two strategies depend on the more experienced participants having a "training", or "coaching", or "mentoring" outlook as a fundamental part of their day-to-day operations. Such bodies, in my experience, are few and far between.)
7.5
REFINING KNOWLEDGE AND SKILLS FROM EXPERIENCE:
There also needs to be a recognition that learning is done on the job, at the job, and actively reinforced, or readily checked for performance/ necessary correction, if the experience is actively reflected on and formally enhanced by the following steps: 1 2 3 4 Formal debriefing in division/ relevant operational area Interdivisional sharing Mentoring Organisational training
7.6
DELIBERATE ACTION TO BUILD KNOWLEDGE & SKILLS - TAPPING EXTERNAL SOURCES:
In addition to current internal resources, there needs to be the active acquisition of knowledge and skills from external sources of expertise. Shellharbour Council currently has a program to support staff who seek additional skills/ knowledge/ qualification by the attending of short courses, seminars, or tertiary courses. The recognition that training in dispute resolution may be basic to a number of professional operations would assist in building knowledge and skills in this area. There are indications that the professional associations have some recognition of this need. In 1995, the annual conference of Town Planners had six of its nine plenary sessions dealing with dispute resolution mechanisms, and even more exposure in a number of the supporting sessions. The 1995 annual conference of Environmental Health & Building Surveyors heard Sir Lawrence Street as their keynote speaker on the first day which was virtually devoted to dispute resolution concerns. The 1996 annual national congress of the Institute of Municipal Management (General Managers, senior administrators, and other senior managers) is focussing on "Communication" as one of its "C's" in a program entitled "Sailing the "C's" of Challenge".
7.7
MONITORING OF USE OF & EFFECTIVENESS OF OPTIONAL PROCESSES:
The present level of statutory reporting, and the expansion of such statutory reporting to include the development of performance indicators, and utilising more benchmarking processes, is likely to grow, and become a more fundamental part of Council's management routine. In the context of Dispute Management, the development of appropriate statistics, and related to the relevant area of operations, and ensuring their reporting in that area, will be critical to operational effectiveness in the area. Where appropriate, if these statistical criteria can be standardised, it would allow an organisation to check performance across different operational areas, and take the necessary remedial action where required. These monitoring processes include:
1 2
Statistics collecting and analysis - quarterly & annual reporting Analysis of anecdotal information shared in formal debriefing in the division/ relevant operational area
7.8
SYSTEM OPERATION DESIGN:
The management (continuous improvement) of dispute resolution, as with the management of any other process, normally requires the four basic steps of: analysis, design, action, review -> analysis, redesign, implement revised design, review -> [a repeating cycle]. At Shellharbour Council, the present focus on performance management and corporate training seeks to maintain the proper nexus between management (line responsibility) and control. The requirements of the Local Government Act, 1993, to formulate a three year management plan, with performance targets and quarterly & annual reporting of achievements, and a statutory obligation to report activities in human resource development - eg training, etc provides a formal mechanism to monitor approach and progress. The reporting from this management plan is overseen by the General Manager. At this stage, there has been training delivered in "Interaction Management". (This course enunciates three Key Principles: 1. maintaining self esteem, 2. listening with empathy, 3. involving the other party in the formulation of an agreed solution.) The course has been focussed to be delivered "down the ranks". (ie first to the Directors, then to the Line Managers, then to the Immediate Supervisors). This "down the ranks" process has also been applied to: 1. 2. The job evaluation (formal and standardised enunciation of job responsibility levels) and the performance review (to standardised measures for different levels)
Further, the major responsibility for divisional training: the allocation of resources, the priorities in deploying those resources, directions of such training, etc., remains with divisional staff. To ensure the process is operating according to Hoyle, there needs to be: 1. 2. 3. a more explicit identification of the Responsible Officer, more calling to account in this area through the relevant reporting mechanism (eg to the General Manager) a clearer enunciation that this is our vision, and our preferred process.
Such a structure also needs to be supported by adequate support resources. One such support is the coordination of the delivery of "corporate" training. Where there is an organisation-wide need for training in a generic area, not only is it more cost-effective to ensure its delivery by a central administrative process, it is also likely to have greater impact on the process of organisational development: expressing a part of the vision, the accepted culture. For Shellharbour Council, in 1996, the indications are that this support needs to be both at the Divisional level and the professional personnel level. At the Divisional level, as managers are called on to give more emphasis to their "managerial role" over against their previously "technical role", they need to be assisted with their commitment to delegation (and the concomitants of such activity: subordinate training and subordinate performance management). They may also need additional staff to delegate to. In the area of "professional" personnel assistance/ support, Councils of a size similar to Shellharbour face a dilemma. They are not big enough to justify more than two professionals. The support needed is in a multiplicity of areas: 1. 2. 3. 4. 5. 6. 7. OH&S; remuneration planning & policy; EEO management; training; change facilitation; industrial, etc., legislation personnel system administration
In this context the question of outsourcing becomes quite significant. To use consultants, etc., will require expertise in the management of these contexts, at present a poorly developed aspect amongst local government managers.
7.9
PRELIMINARY CONCLUSIONS:
Given these factors, it is not easy to define a "training plan", beyond having some broad objectives to guide activity, and reasonable and appropriate monitoring systems to measure results. A calendar indicating what corporate (generic) training is available, and when it is to be delivered, is a tool in this area, but hardly the plan. Further, given the "nature of the beastie", the pervasive interconnectedness of interactions likely to give rise to dispute, it is also not easy to construct a single system (or even a readily discernible mesh of systems) to undertake dispute management. Rather, I see dispute management as an integral element of organisational culture. For me, the "system" for dispute management is: making this issue, and its ramifications,
explicit, and then providing tools for the individual to enhance current performance to effectively deal with the issue.
Then the review of other organisational operating systems can clarify where dispute resolution mechanisms and skills (or the lack of them) impacts on the "primary" activity. Then action can be taken to enhance operations at that point. Again, an important component of this response will be the delivery of corporate generic training in skills involved in dispute management. There is also a need to recognise the "organic" nature of the issue and its context. A person can change. A person certainly has a variety of ways of approaching any given situation. Such a resourceful person will respond differently in differing situations. Similarly, an organisation can change. The present "state of the nation" of an organisation, and the operatives within it, is an amalgam of the past and the present. Past actions/ attitudes/ and responses have built an inherent ethos (character/ culture). But a changing environment will bring new pressures to bear, and the organisation, if it has the capacity to survive, will be in the process of changing to handle such pressures.
ATTACHMENT 6: EXTRACT FROM "EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENT" Recommendations for Shellharbour Council
RECOMMENDATIONS FOR SHELLHARBOUR COUNCIL 1. That Shellharbour Council enunciate a vision for dispute management based on the theme that the management of disputes is undertaken, as far as possible, by the first receiver being able to take effective action to resolve differences before they become disputes. That Shellharbour Council review and revise its current structures (policy and practice) to ensure that these support the above vision. In particular, that Shellharbour Council strengthen its current corporate training and corporate development program to 3.1 develop this ethos and 3.2 enhance the development of the skills, knowledge and consistent behavioural responses which equip staff to handle disputes effectively in the workplace amongst its current staff complement.
2.
3.
For Recommendation 2 above, the following are the key strategic areas for ongoing change and development to reach this vision: 2.1 2.2 recruitment and promotion: on merit, focussing on interpersonal skills as well as (and with a higher weighting than) the usual technical areas induction: majoring on authority and accountability in dealing with interpersonal aspects of difference, and the solving of problems, including the relationship component, on the principle of a mutually balanced interest-based collaboration corporate focus on generic training relevant to the development of the skills, knowledge and consistent behavioural responses required to achieve these objectives a performance management focus to reward the effective application of such knowledge and skills, and to reward, even more, the effective training of others in such knowledge and skill areas (the relevant level of training responsibility being devolved to all staff) appropriate delegation of responsibility to act appropriate flexibility, from broadly framed policy objectives, to give guidelines which allow staff to make consistent, and responsive, decisions
2.3
2.4
2.5 2.6
For Recommendation 3 above, the following are the key strategic areas for ongoing change and development to reach this vision: 3.1 3.2 training in the revised policies and procedures arising from 2.1-2.6 generic training for the key interpersonal skills: communication negotiation facilitation expression of these priorities in the performance management system/s: 3.3.1 personnel performance appraisal 3.3.2 corporate management plan 3.3.3 the measurement and monitoring structures for the organisation at the individual, team, Division, and whole-organisation levels
3.3
ATTACHMENT 7: EXTRACT FROM "ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING"
3.3 EXPLORING A PREFERRED PROCESS TO UNDERTAKE BASE NEGOTIATION TRAINING AT SHELLHARBOUR COUNCIL:
For some in-house training, for volunteers, at Shellharbour Council, my preferred process at this stage is: 1. 2. to select the provider/ approach to provide the context: place; time; limitation on numbers; range of participants
3. 4.
to provide adequate follow up if required - ie have in place the Employee Assistance Program support system And having presented the chosen option, in the preferred way, review its effectiveness, explore other elements to improve the process. Eg: explore UTS one-day route.
At this stage, because of personal knowledge I would recommend the Harvard Negotiation Program approach for the content, and order. Before the course is offered, I would deliver some awareness raising opportunities, and recommend some prior reading: "Getting to Yes". I would look for a timing of the presentation which meets to the content needs and the organisational/ personal needs: some break between presentation/s components. This would serve two purposes: 1. 2. allow for the "aware" gathering of "workplace" and/or "life" examples allow for the internal confronting of self-assessment issues, with an offer of selfassessment process and feedback from the EAP, for example; or, in the negotiation skill building area, post-training consultancy access to the provider
I would look to see how there might be more recognition and opportunity to input examples from the current participants, and from the current workplace into the "learning" presentation: to build the ethic/ culture/ context of: 1. 2. 3. 4. 5. reflection and deliberateness in learning from experience debriefing of training debriefing of experience -> team training critical incident analysis commencing the process of providing "institutionally" acceptable and effective positive and negative feedback, within our own resources
I would look to see how the "formal presentation" part of the UTS course assessment process could be applied to the workplace. The advantages of the "presentation" are: 1. 2. 3. as per 1-5 above it commits the participant to greater interactive participation with the course provides a structured opportunity to reflect on their own experience, analyse the experience from their point of view; organise the presentation of the material to a supportive group (who are also experiencing the same terrors of performance even in the safe, supportive training context) it begins to help ground it amongst the practicality of day-to-day operations it demonstrates the level of the individual's own work on top of what has been presented; and the essence of diversity is shown here: each one, from their own
4. 5.
choice, chooses something they can be comfortable in presenting, each presentation is different and will have its different emphasis - helping the participants get to know one-another at a level not otherwise readily reached enhancing rapport and empathy and tolerance to support ongoing teamwork in the organisation It needs to be remembered that in the in-house context, for Council , the following issues arise with these two additional components: 1. 2. 3. involvement in course presentation - ownership/ commitment -> more effective/ and/or more intense and intimate course sharing instance: how would you; how did we; problem of intimacy: knowing the participants; therefore no matter how it is dressed up someone could twig to the reality and therefore become privy to (revealed) confidential material/ the breaching of a confidence.
ATTACHMENT 8: EXTRACT FROM "FACILITATION: THE USE OF MEDIATION TECHNIQUES & PROCESSES IN RESOLVING DIFFERENCES IN GROUP DECISION-MAKING"
5. KNOWLEDGE AND SKILLS A FACILITATOR NEEDS
The knowledge and skills a facilitator needs has been remarked on, and/or implied, in various commentary remarks through the report to date. They are no less than the skills and knowledge required by anyone seeking to handle a dispute effectively. This can be demonstrated by referring to work done previously, and cited in the bibliography, which enumerates the skills and knowledge required to equip people to handle disputes effectively. In summary these are: "1. The key areas, where skill development is needed, for effective dispute resolution are: 1.1 the interpersonal skills of: 1.1.1 communication 1.1.2 perceiving emotions negotiation skills analysis to help clarify interests invention and creativity in devising realistic options organisational and planning skills
1.2 1.3 1.4 1.5 "2.
The key areas, where knowledge development is needed, for effective dispute handling are: 2.1 interpersonal knowledge
2.1.1 self-awareness & personal development 2.1.2 other-awareness 2.2 alternative strategy knowledge for 2.2.1 negotiation 2.2.2 counselling 2.2.3 mediation 2.2.4 training
Training? If you can handle disputes effectively and know how and why - then teach others to do it as well!! 2.3 ethical norms knowledge for 2.3.1 personal behaviour 2.3.2 other party behaviour (including cross-cultural knowledge) 2.3.3 codes of conduct for negotiation, counselling, mediation, training 2.3.4 the community standards expressed in current arbitration/ litigation "3. The key areas, where the development of theoretical understanding is needed, for effective dispute handling are: 3.1 3.2 3.3 3.4 nature of conflict and its role in society nature of power nature of human beings nature of learning"
In addition, to these, from the preceding information, the facilitator needs knowledge and skills to deal with the "group" context. There, the application is of elements of: 1. individual psychology and behaviour and the likely (and not so likely) consequences of the interaction of the variety and potential brought to the group by its individual members the formation (over time) of a group psychology and behaviour and the expression of its form the likely impact of certain strategic interventions to a group context, There are now significant differences compared to the operation of an intervention in, say, a two-party mediation. The context is now one where the impact is being directed at the "group dynamic". That impact will be at two levels:
2.
3.
1. 2.
on the individual as an individual in the group, but also on the group as a whole, which may have an expressed group behaviour quite different to the sum of the parts, or a "mean" of the "types"
4.
a range of alternative procedures to allow a process to be selected which meets the needs of the problem/ dispute or the particularities of the stakeholders/disputants
The level of depth of knowledge (of group behaviour and group processes) required for facilitation, will, in my view, depend in part on how "old" and "ongoing" is the "group" relationship which the facilitation seeks to enhance. By comparison, this knowledge, while useful and helpful when facilitating a public process with an essentially zero-history group, or mediating multi-party disputes, may not be so critical to such a process. In the public process facilitation, and the multi-party dispute mediation, relationships, while important, are in fact more distanced. Certainly, in the multi-party dispute the relationships factor is still considered important and mediation will be chosen over litigation in an endeavour to maintain the relationships, at the very least, so that they can continue to operate at an appropriate "business" level. The public process facilitation and the multi-party dispute tends to be more focussed on the determination of the substantive difference. Further, Argyris (1970) makes the case for additional skills in the facilitator ("intervenor" in his context). These additional skills are in relation to a capacity, at a personal level, to undertake the task of intervention. The important factor identified here relates to an ability to deal with the potentially isolating and the actually isolated context of the role. This is especially acute when intervention is a person's primary role, and that person is operating from a position external to a formed group. The usual "social" support provided in membership of the group is not available. Indeed, the group facilitated may oppose/ resent/ passively resist the intervention. The intervenor can be a convenient scapegoat for dysfunctional groups which do not want change. See details in the bibliography. CONCLUDING REMARKS: It is worth remembering that any member of a group is able to "facilitate" the group process, and may often do it intuitively. Such activity can be a vital component of preventative measures in the process of handling/ minimising disputes in an organisation, while benefitting from the potential of diversity. For the person/ member of an ongoing group, seeking the long term health/ effectiveness of the group, and wanting to assist in a more informed way, knowledge of group behaviour assists; knowledge of the variety of facilitating processes available, helps. For the organisation wishing to enhance its effectiveness, it needs to be said such training, delivered across the widest spectrum of the organisation, will improve performance in handling differences creatively. This in turn is likely to improve the quality of its decisions and services. An indication is given in Attachment 6 of current bibliographic sources which could be accessed
to deliver such information and experiential training.
ATTACHMENT 9 :TABLES TO INDICATE THE LEVEL OF DISPUTATION REACHING COUNCIL REPORT LEVEL
"INDUSTRIAL DISPUTES" 1968-1995 ISSUE: OVERAWARD PAYMENT CLAIM WHEN: 1972 COUNCIL DECISION: AGREEMENT WITH AN OVERAWARD PAYMENT, BUT NOT TO THE QUANTUM REQUESTED AGREEMENT TO THE PRINCIPLE; AT A LOW QUANTUM; PROGRESSIVELY IMPROVED IN 1979 & 1980 (NOW 85% OR 100% AT RETIREMENT) 19 DAY ROSTER ESTABLISHED 10% LOADING AGREED
PAY OUT OF ACCRUED SICK LEAVE CLAIM
PRE 1965 1979 1980
FLEXITIME CLAIM LONG SERVICE LEAVE LOADING CLAIM
1982 1980
NON-ACCEPTANCE OF COUNCIL DECISION REGULATING DEVELOPMENT 19741995 R1=Withdrawal of Appeal R2=Council Decision Upheld, Appeal Dismissed R3=Council Decision Overturned, Appeal Upheld PERIOD: 1970-74 NUMBER: 3 1 1 DEVELOPMENT TYPE: Residential Flat Subdivision Sand Extraction 1 R1 R2 2 1 R3 1
PERIOD:
NUMBER: 1
DEVELOPMENT TYPE: Land Use Change Residential Flat Subdivision Soil Extraction Commercial Industrial Site (Plant) Nursery Residential Flat LEP Gazettal Rural Res Subd Subdivision S94 Specific Use Sign Rural develop
R1
R2 1
R3
1975-79
5 3 1 1
2 1 1 1 1
2 1
1 1
1980-84
1 1
1 2 1 1 1 (N) 2 1 1 2
1985-89
4 1 1 1 2
1990-94
1 1
(N) Decision adjusted as a result of negotiations This level of disputation is in the context of the following level of development: YEAR: 1968 1969 1970 1971 1972 1973 1974 1975 1976 DAs Approved N/A N/A N/A N/A N/A N/A N/A //105 //111 VALUE: N/A N/A N/A N/A N/A N/A N/A N/A N/A BAs Approved: 649 980 857 993 1015 1446 1266 1088 1047 BAs Received: N/A N/A 846 1111 1231 1533 1168 1159 1296 VALUE: N/A N/A N/A N/A N/A N/A N/A N/A N/A
YEAR: 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996
DAs Approved N/A //90 //87 128//96 350 368 238 246 216 188 189 228 250 245 266 326 362 300 248
VALUE: N/A N/A N/A N/A N/A N/A
BAs Approved: 1333 1142 1281 1192 1213 1215 1166
BAs Received: 1333 1324 1328 1315 1333 1263 1227 1295
VALUE: N/A N/A N/A N/A N/A
$27mil $32mil $11.3mill $32.7mill $45.8mill $32.1mill $122mill $51.2mill $42.4mill
1260 1139 1151 1306 (344 to April) 1113 1418 1372 1257 1303 1006 to Oct $52mill $65.5mill $76.7mill $85.3mill $68.7mill
NOTE: N/A = Not Available; some of the $ values are recorded, and available, but time (at this stage) precludes including them for comparison/ instruction. NOTE: Further analysis of this data could be undertaken, to demonstrate the relative effectiveness of Council processes: 1. Analysis of Development Applications versus Refusals versus Appeals; Development Approvals not progressed
(Some DApplications would appear to be "kites" or "ambit claims"; some appeals (note the number of "withdrawals") also seem to be a testing of a council's resolve to hold fast to policy or decision, etc) 2. A comparison of cost of legal actions versus normal application/approval processing could be instructive Shellharbour Council's dispute avoidance record versus that of other councils could be instructive
3.
The following table commences this process: ISSUE: Sand Extraction Residential Flat Residential Flat Two Storey Building in environmentally sensitive area Industrial Workshop Nursery (Plant) Additions to Flat Building Subdivision: appeal against conditions (public space) Residential Flat Development Two Storey Building 2 shops 2 flats Used Car Sales Enterprise WHEN: DA19/74; 30/3/77 DA33/76; 16/9/76 DA109/75; 2/8/77 549/78/N; 11-13/12/78 DA81/88; 9/3/82 DA81/257; 10/10/83 DA6/71; 18/7/74 X3; 14/1;6/2/74 DA50/74 18/2/75 DA19/72 30/9/75 568/74/W; 13/3;2/4;23/ 6/75 Refusal Refusal Refusal Refusal Refusal Refusal COUNCIL POSITION: ?Refusal ?Refusal ?Refusal COURT (OR OTHER) DETERMINATION: Withdrawn Withdrawn Withdrawn Council decision confirmed
Withdrawn Disallowed Disallowed Council decision confirmed Council decision confirmed Appeal dismissed Appeal dismissed
PRESENTATION OVERHEADS:
THE WAR STORY
THE GENERAL BATTLEGROUND
STRUCTURE & SOURCES OF PRESSURE FOR PERFORMANCE IN LOCAL GOVERNMENT: Structurally, for local government, there are at least 9 major components: 1. 2. 3. 4. 5. The Electorate: The Elected Council: The Senior Staff: The professional/ technical staff The operational staff
And externally: 6. State Government & Department of Local Government; Local Government & Shires Association; Staff Associations: Clients/ Business Interactions:
7. 8. 9.
ANALYSIS OF INTERESTS GENERATING PRESSURE FOR PERFORMANCE ON LOCAL GOVERNMENT: 1. 2. 3. 4. 5. 6. 7. 8. Federal Government State Government Ordinary people - ratepayer - value for money Lobbyists: environmental; business; Elected representatives Political parties Staff - professional satisfaction Staff - employment security and pay for performance
9. Local Government & Shires Association 10. Staff associations - industrially advantageous conditions for employees 11. Businesses - permission to develop within (minimum) economically viable constraints
INTERACTIONS/ POTENTIAL FOR DISPUTE IN THE LOCAL GOVERNMENT WORKPLACE: In the exercise of local government, there are a variety of interactions where there is the potential for dispute, and disputes with significant differences in nature. The basic interactions are: 1 2 3 Customer Service: Regulatory responsibilities: Staff interactions: peers; superior/ subordinates; industrial Involvement in Community development: New legislation: transparency, accountability, interactive processes FOI Revised Processes: Documentation; exhibition; submission; consideration; decision
4 5
KINDS OF DISPUTATIONS: The differences of interest are real, and reflect in a vast variety of disputations/ potential for disputation: from one person versus the Council, to a wrangle involving the issue of legal interpretation with state-wide implications (the "precedent" case) The major categories of differences in disputes are: 1. 2. 3. 4. 5. 6. 7. Disputation on the council in the public forum: political polarisation Disputation between councillors & senior staff Disputation between management & staff Disputation between Council & State Government / bureaucracy - Housing Commission & Landcom etc Disputation between Council & large developers Disputation between Council & residents: development/ winners & losers Disputation between residents where Council can be drawn in (because of regulatory role or policy of proactive community development)
AN OVERVIEW OF LOCAL GOVERNMENT IN NSW: Local Government in NSW is, on the one hand, "homogenous" - its practices dictated by the same state legislation. On the other hand, there are significant levels of essential diversity: 1. There 173 local government areas from Sydney City to Windouran. At this stage they are categorised by the Local Government Grants Commission into four major categories, with a total of 11 subcategories: 1 2 Councils in the Sydney Statistical Division [45 councils] Non-Metropolitan councils which are predominantly Urban (Shellharbour City Council's category) [21 councils] Coastal Councils [18 councils] Rural - Councils with Significant Rural Areas [93 councils]
3 4 2.
Sydney City is a complex urban area with a significant mesh with the seat of State Government.
3. 4. 5.
Windouran, in the central Murray area, has a population of about 500. The area with the largest population is Blacktown with an estimated 199700 in 1986. There are 124 areas with populations less than 31,000 (the average population per area in 1986). (The Shellharbour Local Government area has a population of 50,000 and this is growing at the rate of 2% per annum.)
6.
Staff sizes range from 20 staff to in excess of 1000 staff. (Shellharbour Council has a staff complement of the order of 220)
7.
Annual resources, at the disposal of elected representatives, range from $1.5 million to $150 million. (Shellharbour Council's annual expenditure from revenue resources is of the order of $27 million.)
RANGE OF DISPUTE RESOLUTION PROCESSES OPEN TO LOCAL GOVERNMENT: DISPUTE RESOLUTION PROCESS: Direct Negotiation EXAMPLES OF WHERE THE PROCESS IS TYPICALLY APPLIED: Employee & Immediate Supervisor Employee with delegated authority & Developer - working through application to reach position of conformity with policy, therefore approval (with or without conditions) Employee with delegated authority & Contractor - dealing with contract variations Union Representative (staff) /Management; Union Organiser/ Management; Union Organiser/Local Government & Shires Association Industrial Division (peak employers' representative) Council's solicitor to appellant solicitor
Indirect Negotiation/ Facilitated Negotiation
Indirect Negotiation/ Professionally represented parties Mediation voluntary bipartisan initiative
ADB approach
DISPUTE RESOLUTION PROCESS: Mediation voluntary, bipartisan, but pre-requisite of arbitration Expert Appraisal Conciliation Expert Determination Arbitration Litigation Partnership
EXAMPLES OF WHERE THE PROCESS IS TYPICALLY APPLIED: Land & Environment Court
Industrial Court Commission of Inquiry EP&A Act Industrial Court Court of Appeal
DISPUTE RESOLUTION IN COMMERCE RESEARCH PAPER: REQUIREMENTS: To demonstrate: 1. 2. Application of dispute resolution theory and practice to the corporate environment. Preventing, managing & resolving disputes within a corporation and between a corporation and the outside world Range of dispute resolution processes versus their relevance Any problems in applying them to the various types of disputes Impediments to changing the dispute resolution culture of an organisation Design of systems for prevention, management & resolution of disputes and for implementing the change involved Interconnection between modern business theory And dispute resolution
3. 4. 5. 6.
7.
SHELLHARBOUR - GROWTH Population 1861 = 1,415
1921 = 1,527 1947 = 3,117 1954 = 5,523 1961 = 13,394 1971 = 31,137 1981 = 41,790 1991 = 46,295
Resources for Strategic Interventions used by Mediators, Facilitators and Conciliators. Equipping Staff to Handle Disputes Effectively in Local Government.
The paper seeks to do this by: 1. 2. 3. 4. 5. 6. reviewing the context of local government reviewing the nature of disputes that present in the local government workplace identifying the skills required in dealing with those disputes looking at the training required to develop those skills reviewing the current training that is readily available to local government considering the development of dispute handling systems
7. 8.
appropriate for a local government body considering a training plan to develop dispute resolution skills, for a local government body reviewing some of the literature of dispute resolution to see what insights may be provided from this alternative source
Issues in Training in Negotiation Skills for an Organisational Setting. Facilitation: The Use of Mediation techniques & Processes in Resolving Differences in Group Decision-Making.
Structurally, for local government, there are at least 9 major components: 1. The Electorate: ordinary people, lobbyists, in their ward structures, political party branch members, the candidates before pre-selection and after nomination, representatives The Elected Council: Labour pre-selected & elected; non-aligned independents; representatives of emerging political movements - eg Greens, Democrats; government (majority) and opposition (minority); ward groupings The Senior Staff: Town Clerk/General Manager; Senior professionals: Engineer, Town Planner, Health & Building Surveyor, Treasurer, Others (Chief Librarian) The professional/ technical staff The operational staff
2.
3.
4. 5.
And externally: 6. 7. State Government & Department of Local Government; Local Government & Shires Association; (and to a lesser extent the "industry" interests/concerns - solidarity in a hostile world - hostility from other political spheres - State; Federal; - the private competitive market seeking access to new areas of operation; - the international "best practice" context - NSW vs other States; NZ; USA; UK Local Government practice, etc) Staff Associations: Municipal Employees Union, HABSA, Engineers Association, Clerks Association/Institute of Municipal Management Clients/ Business Interactions: Landowner/Developer; Development/Construction firms; Contractors & Suppliers; Community organisations; Federal Government
8. 9.
1.
2.
3.
4. 5. 6. 7. 8. 9.
10. 11.
Federal Government - using local government as an agency in delivering federal policy outcomes: eg labour market programs; social development programs (child care); regulating to achieve national objectives - micro-economic reform State Government - using local government as an agency in delivering state policy outcomes: eg community service (youth programs); devolving responsibility for regulation etc to the local level - houses of ill fame from "police" to town planning area Ordinary people - ratepayer - value for money (rate dollar); community services - facilities (sporting, community, cultural, etc); infrastructure - roads, etc; specific services - building applications etc; Lobbyists: environmental; business; Elected representatives - re-election; policy implementation; community development Political parties - establishing a more formal involvement and expression at the local government level to build community profile and acceptance Staff - professional satisfaction Staff - employment security and pay for performance Local Government & Shires Association higher profile/value to local government industry performance; comparative performance/ leadership reputation in the wider local government industry Staff associations - industrially advantageous conditions for employees Businesses - permission to develop within (minimum) economically viable constraints
2.2.1 Customer Service: There are a variety of (Council) staff / customer interfaces. Typical examples are: 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Cashier and ratepayer Counter Clerk and service/information seeker Accounts Clerk and debtor or creditor Regulatory Officer and applicant Elected representative and elector with enquiry/ complaint/ policy position to lobby Professional Officer and Community Organisation Representative Professional Officer and complainant
2.2.2 Regulatory Responsibilities There are a variety of regulatory officer and applicant interfaces: 2.1 2.2 2.3 2.4 2.5 2.6 2.7 Building Inspector and Building Applicant Building Inspector and Building Owner/ Occupant Town Planner and Development Applicant Engineer and construction firm representative Professional Officer and Contractor Health Inspector and Licence Applicant or Holder Ordinance Officer and facility user
Within these categories there is a range of potential for dispute: 1. Disputation on the council in the public forum: political polarisation A. B. C. D. E. Between clear political opponents - pre-selection & pre-election Between clear political opponents - post-election through period of office - government vs opposition Within a political group - labour group - policy differences; political ideology stands; Impact of external parties - the different policy emphasis lobby; single-issue interest lobbying; intra-party political power plays Between Mayor and Councillor/s
3.1
EXPERIENCE OF DISPUTE IN THE RANKS OF ELECTED REPRESENTATIVES
The change of State Government in 1966 led to a change in electoral practice in the 1968 local government elections (from compulsory elections to non-compulsory elections). The growing ALP representation stalled at a point where the "numbers" were close to, or equal to, the non-labor independents. This "balance" continued in 1971-74-77 period. Compulsory elections were re-introduced in 1976 for the 197780 council term. The ALP group now secured a majority and was able to dictate the mayoral position. For the 1980-83 term and since, the mayor has been elected by popular vote from the whole plebiscite. The closeness of numbers in representation through 1971-74-77 led to some serious dysfunction in that forum. There were extended debates arising out of reports (particularly in the area of town planning). These debates tended to deal with issues of policy principle. There was a basic difference in the approaches of the two groups - general support of development from the business/ conservative side; and challenge of development, especially the question of the "control" of it, from the ALP side. The debates were lengthy, but mostly "window-dressing". The ALP group's position was put: extensively and cogently , their arguments were rarely effectively countered, but the vote went the other way. The power of the numbers, especially the Mayor's casting vote, was used time and again, to "win the day". This was also the period during which there was the beginning of concerns about environment (the Clutha coal mining debate had flared in the Illawarra), and growing discontent with residential flat development, and "third party" rights in determining elements of urban quality of life. (The shift of "grass-roots" involvement: from "Ratepayers' Association" to "Coalition of Resident Action Groups", was one such indicator). The mayoral election (which delivered a casting vote to break an even deadlock) at Shellharbour was characterised by a draw from a hat, and in 1974 the draw selected RJ Harrison. (At one stage the heat and distrust generated by such "closeness" meant that the local sergeant of police was called in to supervise the conduct of the draw.) During his first brief term, the leader of the ALP group, Harrison, instituted a number of significant changes: 1. the rights of councillors to access to information, access to Council files, was extended
2. 3.
the Council appointed a Chief Town Planner, and severed this "dependency" link with Wollongong City Council the Council established a "public participation" policy and practice (this public participation policy was modelled on the practice operating at the time at Leichhardt Council)
When the next mayoral ballot saw the "opposition" drawn from the hat, there wasn't sufficient policy clarity, or deliberated effort, to unwind any of these changes. In 1977, with the ALP numbers now dominating the political forum, and Harrison secure as Mayor, another significant change was instituted: 4. Council's legal advisers, a solicitor's firm based in Wollongong, with a senior, experienced practising solicitor (N Lamerton) with longstanding links with the Shellharbour community (Albion Park was the place of his commencing practice in the 1950's) was engaged on a retainer basis, with a regular one day a week spent out on site at the Council Chambers where the advice was now "on-tap" for senior and professional staff
Throughout the period of 1977-1991, during Harrison's mayoralty an endeavour was made to "mend" the level of disputation at the elected forum: the independent councillors were included in the committees of council, on the basis of their support at the ballot box (but not in sufficient numbers to represent a real power block). In 1991, when Harrison retired, the ALP still held the numbers, and the independent opposition had almost withered on the vine. The new regime did not endeavour to include the independents in the "committee" deliberations. In 1993 the Local Government Act changed, and with it the question of numbers of elected representatives. There then needed to be a review of ward boundaries, with a loss of positions available to aspiring candidates, and a ward structure was then formed which amounted to a gerrymander. (Six wards of two elected representatives each, with proportional representation, compared to the previous five wards of three elected representatives each, has meant the substantial demise of the independent position). For the 1995 election there was fall-out in one of the ward ALP tickets when seniority was displaced by raw ambition. In another of the wards strength of numbers (of the "left" faction) now put in place ALP members who are antithetical to the "ruling right". In 1996, there has been a return to a sense of instability at the
elected level. Now, the uncertainty arises from tensions within the ALP caucus. In caucus there are three clear distrusted "lefties" out of the nine. In the council forum there is the potential for those three to combine with the one disaffected senior exALP member and the two independents to force a mayoral casting vote - or to win the day if someone is away - providing the caucus has been alerted to the prospect and bound the three disaffected members to caucus solidarity on a "policy" matter. LESSONS/ ILLUSTRATIONS 1. 2. 3. 4. 5. 6. 7. Power - of numbers in the decision-making process; its legitimacy; its failure to completely satisfy parties interests and needs Polarisation - abuse of power to separate, hardening of lines of difference Talking at not talking with Use of the third party neutral at a critical decision Impact of unsatisfactorily resolved disputes - loss of trust; escalation of dispute; organisational dysfunction Use of objective criteria - proportional representation The value of recognising opposition and including it in the decisionmaking councils
6.6
AN EXAMPLE AT SHELLHARBOUR COUNCIL: PUBLIC PARTICIPATION:
One such example of a relatively pre-emptive dispute resolution process used at Shellharbour Council, since 1974, is Public Participation. For any item on Council's meeting Business Paper, any person interested in making a public presentation to Council about that item may apply to engage in "Public Participation". Then, at the meeting, when the item is dealt with, the applicant is invited to speak to the Council, to present their case. After the applicant is heard, the applicant may be questioned by the Councillors - for clarification if necessary. The Council itself then debates and determines the matter. The opportunity for public participation has been used, almost exclusively, by parties involved in, or projected to be affected by, development applications or by building applications. Since the instigation of public participation, the applicants (who are dissatisfied with the officer's recommendation) have had public and open access to the councillors, to present their case. This process delivers an "internal solution" wherever possible. Public participation has also provided "objectors" - adjacent owners, primarily, and "third party" interests (eg the "conservation lobby") secondarily, with access to councillors prior to the determining of the decision. (Public participation can be for some their "day in court". The access is not dependent on any prior relationship, any favour to repay, etc. and therefore is not as open to the risk of improper influence. The "public" forum brings its own constraints on participants for reasonableness, courtesy, etc.) The operation of public participation has been such that over the period: 1. the applicant's position has been heard, and the Council has settled on a less onerous approval than that recommended by the professional officers the objector's position has been heard, and refusal, or more stringent conditions have been applied in hearing either applicant or objector, Council has deferred decision making to allow for further discussions, deliberations, on-site inspections, further professional consideration of concerns raised. in hearing either applicant or objector the Council has adjourned its meeting to allow for informal discussions, exploration of "compromise
2. 3.
4.
5.
position", etc, then reconvened to formalise the compromise position as the Council decision there has been a change with its policy/ practice to encourage "lay" participation (and discourage any professional legal takeover of the "public participation" process). If an applicant or objector seeks to have legal representation in presenting their case, that is permitted, providing notice has been given to allow Council to have an equitable position. (Council's legal advisor is able to be present, and participates if necessary).
It has not been unknown, at such proceedings, for informal advice to be given to parties to take their dispute to the Community Justice Centre. This mechanism was fairly radical in 1974. My understanding is that the "model" was Leichhardt Council. The mechanism has since spread to a number of other Councils. [The agitator, at Shellharbour Council, for its implementation, was the mayor at the time, Alderman RJ Harrison. His experience, prior to winning the mayoralty by a draw from a hat (administered by the local constabulary), included a number of years fretting on the sidelines as a member of the minority "opposition" in the Council.] A recent development, initially modelled, as far as I understand, by North Sydney Council, is the Precinct Committee. This is a Council authorised forum for deliberations relating to local developments. Developers and objectors can deal with their differences in Precinct Committees. Precinct Committees can also be more pro-active, being used as the regularised consultative forum for providing input to the more "general" local environmental plan process. An even more recent development is the "charette". This mechanism, of pre-application consultation, is convened for the larger scale development proposal. Here the stakeholders convene for a fixed period, in a structured and facilitated context, to: 1. consider the principle of the proposal,
2. 3.
raise the principles (constraining conditions, etc., which must apply before approval will be granted) controlling the development, and undertake the relevant negotiations associated with gaining approval, in principle, to proceed with the preferred proposal.
Stakeholders include: 1. 2. 3. 4. 5. 6. developer/s landowner/s with a vested interest in the development proceeding adjacent landowner/s likely to be affected by the development, in some cases, adversely Council representatives with the responsibility of development control Community representatives the relevant government department representatives which have regulatory obligations in the normal process

Dispute Resolution: Learning From The Experience of Disputes at Shell Harbour City Council

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Dispute Resolution: Learning From The Experience of Disputes at Shell Harbour City Council

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DISPUTE RESOLUTION IN COMMERCE ASSIGNMENT : Dianne Allen ... p.

1 LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL

LEARNING FROM THE EXPERIENCE OF DISPUTES AT SHELLHARBOUR CITY COUNCIL

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12.

SEE ATTACHMENTS 3, 4 & 5 FOR THESE DETAILS

DISPUTE RESOLUTION PROCESS: Direct Negotiation

DISPUTE RESOLUTION PROCESS:

Indirect Negotiation/Facilitated Negotiation

Council's solicitor to appellant solicitor

ADB approach Land & Environment Court

1.2 THE SITUATION AT SHELLHARBOUR COUNCIL

1.3 CURRENT THEMES FOR ENHANCING ORGANISATIONAL LEARNING

1.4 APPLICATION OF THESE THEMES IN THE LOCAL GOVERNMENT CONTEXT

SEE ATTACHMENT 2, 5 FOR FURTHER DETAILS

1.5 THE CURRENT CONTEXT FOR ORGANISATIONAL LEARNING AT SHELLHARBOUR COUNCIL

SEE ATTACHMENTS 5, 6, 7 AND 8 FOR DETAILS

2. SPECIFIC CONTEXT FOR SHELLHARBOUR COUNCIL

2.2 NATURE OF DISPUTES EXPERIENCED BY SHELLHARBOUR COUNCIL

SEE ATTACHMENT 9 FOR DETAILS

2.3 DISPUTE RESOLUTION OPTIONS EXERCISED BY SHELLHARBOUR COUNCIL

2.3.2 INDIRECT NEGOTIATION/ FACILITATED NEGOTIATION

2.3.4 EXPERT APPRAISAL

2.3.6 EXPERT DETERMINATION

3. LEARNING FROM THE EXPERIENCE OF DISPUTES

3.1 GENERAL REMARKS:

3.2 EXPERIENCE OF DISPUTE IN THE RANKS OF ELECTED REPRESENTATIVES

3.3 AN EXAMPLE OF AN INDUSTRIAL DISPUTE:

3.4 THE SHELLCOVE PROJECT

3.6 SECTION 94 CONTRIBUTIONS AND CHALLENGES TO COUNCIL POLICY

more immediate return on their investment in higher land value sales.

3.7 PUBLIC PARTICIPATION AND PREPARATIONS FOR WIDER PUBLIC CONSULTATIONS

Section 2 Section 2.1

Section 3 Section 3.1

EQUIPPING STAFF TO HANDLE DISPUTES EFFECTIVELY IN LOCAL GOVERNMENTABSTRACT:

The second assignment, looked at

ISSUES IN TRAINING IN NEGOTIATION SKILLS FOR AN ORGANISATIONAL SETTING ABSTRACT:

AN OVERVIEW OF LOCAL GOVERNMENT IN NSW:

1.2.1 A Demographic Thumbnail Sketch:

1.2.2 The Nature of Autonomy in Local Government:

STRUCTURE & SOURCES OF PRESSURE FOR PERFORMANCE IN LOCAL GOVERNMENT:

ANALYSIS OF INTERESTS GENERATING PRESSURE FOR PERFORMANCE ON LOCAL GOVERNMENT:

A BRIEF HISTORY OF AN EXAMPLE DEMONSTRATING THE IMPACT OF

INTERACTIONS/ POTENTIAL FOR DISPUTE IN THE LOCAL GOVERNMENT WORKPLACE:

DETAILED BREAKDOWN OF INTERACTIONS:

2.2.1 Customer Service:

2.2.2 Regulatory Responsibilities:

2.2.3 Staff Interactions: Peers; Superior/ Subordinates; Industrial

3.3 3.4 3.5 3.6

2.2.4 Involvement in Community Development:

4.2 4.3 4.4 4.5

2.2.5 New Legislation: Transparency, Accountability, Interactive Processes

INTERACTION AND POTENTIAL FOR DISPUTE:

becomes a vital part of a local government body's effectiveness.

Disputation between management & staff A. Individual complaint

THEN WITH UNION INVOLVEMENT C. 4. Union "political" agenda -

DEVELOPMENT OF DISPUTE HANDLING SYSTEMS APPROPRIATE FOR A LOCAL GOVERNMENT BODY

ADB approach Land & Environment Court

INTERNAL MECHANISMS FOR DEALING WITH DISPUTES

EXTERNAL MECHANISMS FOR DEALING WITH DISPUTES

CURRENT DEVELOPMENT IN DISPUTE HANDLING MECHANISMS

AN EXAMPLE AT SHELLHARBOUR COUNCIL: PUBLIC PARTICIPATION

ARTICULATION OF DESIRED CORPORATE CULTURE OF DISPUTE MANAGEMENT:

REFINING KNOWLEDGE AND SKILLS FROM EXPERIENCE: