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Report of the Inquiry into the Shire of Wiluna.pdf (1428 KB)
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Contents
1. Introduction
2. Inquiry Findings
2.1 The Request for Tender 2017-06 tender process, approvals, and payments
2.2 The Overdraft of $2.5M from the Commonwealth Bank of Australia (CBA)
2.3 The financial viability of the Shire
2.4 The culture of the Shire including aspects of the elected members and administration
3. Recommendations
1. Introduction
The Shire of Wiluna (the Shire) is located in the Mid West region of Western Australia, about 950 kilometres northeast of Perth. The Shire covers an area of 182,155 square kilometres and its seat of government is the town of Wiluna. The Shire is home to approximately 742 people who live in 222 dwellings.
The community is represented by a President and six (6) Councillors, each elected for four-year terms. The current Shire President is Jim Quadrio, and the Chief Executive Officer (CEO) is Laura Dwyer, who was appointed on 14 September 2020.
Section 8.3 of the
Local Government Act 1995
(the Act) gives the Director General of the Department of Local Government, Sport and Cultural Industries (the Department) the authority to inquire into all local governments and their operations and affairs.
On 4 November 2019, the Director General of the Department authorised an inquiry in accordance with section 8.3(2) of the Act. The scope of the inquiry directed it to inquire into the following aspects of the Shire and its operations and affairs beginning 1 July 2017 in relation to:
the Request for Tender 2017-06 tender process, approvals and payments.
the overdraft of $2.5 million from the Commonwealth Bank of Australia;
the financial viability of the Shire; and
the culture of the Shire, including aspects of the elected members and administration.
This report on the outcome of the Department’s inquiry has been compiled in accordance with section 8.13 of the Act by officers of the Department who were authorised to conduct the inquiry (the Authorised Persons).
In order to perform their functions, the Authorised Persons issued nine (9)directions to the Shire and a further (13) thirteen to other organisations under section 8.5 of the Act to provide documents, information or property. The Shire and other persons/organisations complied with each of those directions.
Voluntary audio recorded records of interview were conducted with the Shire President, former CEO Colin Bastow, former Deputy CEO Warren Olsen, former councillor Caroline Thomas, the former Executive Manager Technical Services (EMTS) Angela Hoy and Simon Thomas, Director of Goodwork Holdings Pty Ltd (GWH).
The Shire President, Jim Quadrio, and the CEO, Laura Dwyer, were given an opportunity to comment on this report in draft form before it was finalised. Written submissions were provided to the inquiry by GWH, former CEO Colin Bastow, Talis Consultants, Greenfields Technical Services and Elected Members of the Shire and those submissions were considered by the Authorised Persons in finalising this report. No other submissions were received.
On 6 February 2020, the Department appointed BDO Australia to undertake forensic audit services in relation to the Shire of Wiluna.
BDO were requested to:
Conduct a forensic audit of the Financial Report for years 2017/2018 and the draft Annual Financial Report 2018/2019; Provide a report to the Department and give evidence at any hearing before the State Administrative Tribunal, or any proceedings on behalf of the Customer concerning this matter, if required.
On 13 February 2020, the former CEO, Colin Bastow, went on sick leave and the then Deputy CEO, Warren Olsen, was appointed to act in the position. Colin Bastow resigned on 27 March 2020, and Warren Olsen was Acting CEO until 26 June 2020.
In August 2018, a previous authorised inquiry into the Shire was finalised and the report of its findings released. The report made recommendations which included the elected members and Shire staff undertake governance and accountability training, an independent governance review and ensure that qualified independent project management should be engaged for any project with external funding of $1 million or more.
This report once again acknowledges the unique and challenging role that elected members and administration staff have in regional areas and that sometimes they have limited support available to them.
This report notes that the departure of the previous CEO, Deputy CEO and Manager Corporate Services, along with the appointment of the new CEO, has provided the opportunity for the Shire Administration to review current practices and enhance the relationship between Council and Administration staff.
2. Inquiry Findings
2.1 The Request for Tender 2017-06 tender process, approvals, and payments
During January 2017, a significant weather event occurred which caused extensive flood damage to parts of the road network within the Shire. The event was declared a natural disaster (AGRN743) under the Western Australia Natural Disaster Relief and Recovery Arrangements (WANDRRA) through Main Roads Western Australia (MRWA).
The EMTS at the time, Luka Shopov, arranged an initial assessment of the damage to be undertaken by WML Consultants which estimated the flood damage at approximately $3.5 million. The initial assessment took some time during which Shopov left the employment of the Shire.
Angela Hoy (Hoy) was employed as the EMTS and reassessed the original estimate of the flood damage to the road network. She considered that the estimate was incomplete and disseminated a Request for Quote (RFQ) for further scoping of the flood damage.
Greenfields Technical Services (GTS) won the quote and carried out the works which arrived at an estimated cost of the damage to the road network at $10.8 million.
The delay in finalising the estimation of the cost of flood damage would later bring some pressure onto the Shire to award the contract and complete the works, given that WANDRRA funding arrangements were subject to a condition that the works must be competed in a two (2) financial year period.
At the Ordinary Council Meeting (OCM) of 25 October 2017, the Council approved the WANDRRA AGRN743 Flood Damage Estimate of $10,825,924.01 be submitted to MRWA for approval.
2.1.1 Meeting of Councillors and Administration Staff – Granite Peak Station
In early January 2018, an informal meeting of Councillors and Hoy was called to discuss the contents of the tender documents. The meeting was held at Granite Peak Station, the property of the Shire President.
The meeting was an unofficial meeting that was not minuted and had been convened as the Council wanted to have further input into the tender documents. Other upcoming tenders relating to road construction and maintenance grading were also discussed This is not usual practice for local government councils.
Input from the Councillors present included that the standard of quality assurance for the contract be reduced and the payment terms for payment of invoices changed from 20 days to 14 days. The rationale for the changes were that the tender would be more attractive for local businesses.
At the time of the meeting, Cr Caroline Thomas was an elected member of Council and, along with her husband Simon Thomas, was also the owner of GWH, an earthworks company that would later tender for and be awarded the contract. The Shire President also owned earth moving plant but did not tender for the contract.
When interviewed by the Authorised Persons, Hoy stated that if she was aware at the time that some Councillors were intending to tender for the contract, she would have advised that the meeting was not appropriate.
When interviewed by the Authorised Persons, Cr Thomas’ recollection was that the meeting was an informal meeting that all councillors were invited to, however only the councillors with an interest in road works were in attendance. Cr Thomas believed the meeting was necessary as the Shire Administration had failed to arrange a formal meeting to seek input from Council and that that the meeting was Councillors acting for the community on behalf of the community. However, she conceded that the purpose of the meeting was ultimately to benefit smaller, local companies that planned to tender for the road repair which included her company, GWH.
Caroline Thomas said the reason for the meeting was to discuss the content of the tender documents to ensure that local contractors could reasonably compete with bigger companies in the tender process. When interviewed by the Authorised Persons, the Shire President advised that the Shire did not normally conduct unofficial meetings to discuss tender documents and assumed it had been convened due to the delay in calling for tenders.
The former CEO was on leave at the time and later became aware the meeting had taken place, however he recalled that no one raised any concerns with him about the meeting, who was present or what was discussed.
The tender documents, once reviewed and finalised by Hoy with some input from the Council, were prepared by Kott Gunning Lawyers.
The then Deputy CEO, Warren Olsen, stated that in his experience working for local government authorities it was not ordinary practice for Council to become involved in the preparation of tender documents, but it did occur at the Shire.
The Act and associated regulations prescribe the role of Council and its decision-making processes. It provides that elected members participate in the decision-making process at council meetings, and that the authority to make decisions is exercised by Council via simple or absolute majority decisions at formal meetings of council, or committees with delegated authority, only.
The Authorised Persons recognise that councils may run informal forums inclusive of briefing or information sessions. However, no binding decisions may be made at these “informal” meetings.
It is the view of the Authorised Persons that the unofficial meeting to discuss the tender documents involving Councillors that had a likely interest in the tender risked the erosion of public confidence in the Council and lacks transparency in the tender process.
2.1.2 Tendering of Flood Damaged Road Repairs — AGRN473
On 13 January 2018, the Request for Tender (RFT 2017-06) was advertised in the West Australian newspaper with a closing date of 8 February 2018. The tender stated that the contract could be awarded as one contract consisting of three parcels of work and that a contractor or contractors could be awarded one or more of the parcels, or all three parcels. The tender also required that the works be completed within a set time frame in order to comply with WANDRRA funding requirements.
The weather event had occurred some 12 months earlier and there was some urgency to award and complete the tender before the time limit specified by WANDRRA funding expired.
Given the interests that some Councillors may have had in the tendering of the works, the Shire Administration thought it best to engage the services of an independent assessor to assess the tenders and make recommendations.
On 15 March 2018, River Engineering Pty Ltd (River Engineering) prepared a tender assessment and recommendation report for the tender. One of the tenderers was GWH and as part of the assessment process, River Engineering made the following comments:
“Goodwork are interested in taking on all three parcels as lead contractor.
Goodwork are located in Wiluna and a significant pricing advantage due to their reduced mobilisation costs.
The project is three times larger than their turnover from last year.
No organisation chart has been provided.
A conflict of interest exists as one of the company directors is also a Councillor for the Shire of Wiluna.
The score calculated for their Tender Qualitative Criteria came to 67%. This equates to fourth best out of the seven tenderers.
Goodwork are without question ranked as number one for pricing due to their local proximity to the site. However, it must be noted that some of the pricing items have not been offered.”
At the completion of the assessment process, River Engineering made the following recommendations:
“Two Contractors being Goodwork and Quadrio as the most attractive offers, however, both have conflicts of interest. Both of these tenderers are significantly ahead of any of the tenderers in relation to price of all the parcels.
The positives from the Goodwork offer is that it will represent the most cost effective over the duration of the contract and approximately 9% lower than the Quadrio all parcels offer. It also uses local content which will be important to the region, something that Quadrio did not offer.
The negatives are the size of the project in relation to the company size and whether the company can handle a project of this size within the timeframe. However, they are supported by local subcontractors which may allay any fears.
My recommendation is to award the contract to Goodwork but the conflict of interest will have to be managed not only through the awarding of the contract but throughout the term of the contract. Some suggestions as to how this may be managed are;
Obtain advice from the WALGA Legal team.
Ensuring the Councillor who has an association with the Contractor is excused from any decision made in association with this Contract.
Keep a detailed record of the work which has been performed. For instance, take photographic evidence of the before and after work.
Engage a third party to verify the quality of work produced.
Obtain a third party to review payment claims and issue a payment certificate.”
At the OCM of 28 March 2018, the Council, having noted River Engineering's report and recommendations, passed a resolution to award the contract for RFT 2017-06 Supply of Plant & Operators for WANDARRA Road Flood Damage Repairs to GWH (extract of minutes below):
The resolution awarded the tender to GWH as 1 contract but separated the works into 3 separate parcels, all of which were awarded to GWH.
Hoy raised concerns with then CEO, Colin Bastow, that GWH would be unable to successfully complete the works given the capabilities of the company and therefore requested that the contract be separated into 3 individual contracts pertaining to parcels 1, 2 and 3. Hoy considered that separating the works into 3 separate contracts would allow the Shire to revoke parcels of work from GWH should the need arise. The former CEO agreed with the assessment of Hoy in relation to risk mitigation of the contract and the separation of the works into 3 separate contracts.
When interviewed by the Authorised Persons, the former CEO, Colin Bastow stated that he saw the ambiguity in the wording of the resolution as semantics and believed the Administration was protecting the Shire by separating the project into 3 separate contracts. He now concedes that the resolution should have been more particular in its wording.
Hoy stated that Caroline Thomas was unhappy about the changes to the contract however she felt that it was the best way to mitigate the risk to the Shire. Hoy felt that GWH would ultimately be unable to complete all 3 parcels of work even though Council had resolved to award the tender to them.
Simon Thomas of GWH maintains that his company should have been awarded the tender as one contract as per the resolution of Council. He was told by Angela Hoy that she had concerns as to whether GWH had the capabilities to complete the works and intended to split the works into three separate contracts to protect the risk to the Shire.
Simon Thomas stated that if that was her desire than the matter should have returned to Council for clarification of the resolution. He ultimately agreed to sign separate contracts for the three parcels of works but stated he wasn’t comfortable doing so.
In the view of the Authorised Persons, clarification should have been sought from the Council, by way of another resolution, on whether it was the intention of Council to award 1 or 3 contracts to the successful tenderer.
Hoy had conversations with Cr Thomas prior to the tender being awarded to GWH in relation to her concerns that GWH could complete the works and that she was concerned that the size of works may financially cripple GWH. Cr Thomas continually reassured her that GWH had the capability to complete the works.
When interviewed by the Authorised Persons, the former CEO conceded that the Administration did not focus enough on the financial position of GWH prior to recommending them as the preferred tenderer.
Cr Thomas told the Authorised Persons that she travelled to Granite Peak Station and had the contracts signed by the Shire President.
When interviewed by the Authorised Persons, the Shire President acknowledged that he did not scrutinise the contracts in as much detail as he should have and was not fully aware of what he was signing. The Shire President has now adopted the practise of scrutinising contract documents in more detail and will not be merely guided by the CEO or Deputy CEO.
It is the view of the Authorised Persons that it was highly irregular for Cr Thomas, in her capacity as a director of GWH, to travel to the property of the Shire President to have the contracts signed. This practice lacks transparency and could lead to allegations of impropriety. Cr Thomas did not adequately manage her role as both a Councillor and director of GWH by failing to maintain independence with the tender process and management of the contract. Further, the Council failed to adequately address the concerns highlighted by River Engineering in the tender assessment of GWH prior to awarding the tender.
A further tender was awarded to Talis Consultants for the supervision of the project. This included the day to day supervision of the contractors and works, quality assurance of the project and verification and submission of daily work sheets.
A further tender was awarded to GTS for the administration of the project. GTS was responsible for the collating and auditing of completed works and preparation of claims for submission to MRWA by the Shire for reimbursement.
Works commenced and as the project continued, relationships between GWH, Talis and the Shire Administration began to deteriorate.
Issues impacting on the project were:
GWH requesting amendments to the works roster;
GWH asking that the Shire reconsider the hourly rates of the contract;
delays in payments being made to GWH by the Shire;
personality conflicts between GWH, Talis and Shire Administration;
poor conflict resolution;
the misunderstanding or miscommunication of aspects of the contract;
threats by GWH that work would cease on parcel 2 if hourly rates were not increased; and
poor management by Council and Shire Administration in respect of Cr Thomas’ involvement with the project as both a Shire Councillor and the contractor.
An independent contractor, Brett Howson, was asked by GWH to review the project and make some suggestions to remedy the issues. Mr Howson reviewed the project over 3 days, identified several issues and made some recommendations to assist with the management of the project. Mr Howson stated that he advised the then CEO of his findings and recommendations.
Simon Thomas of GWH used Mr Howson on a part time basis to be a liaison between GWH and the Shire at the suggestion of the Shire President, in an effort to maintain a cohesive working relationship.
Towards the end of 2018, the Shire President asked the then CEO to conduct an internal investigation into the management of the contract. The internal investigation did not find any significant issues or resolve anything. When interviewed, the Shire President advised that the internal investigation was not a resolution of Council and concedes in hindsight it should have been, but the then CEO maintained it was an operational matter and therefore his responsibility.
Simon Thomas and GWH had a fractured relationship with Talis which began to impact on the effective management of the contract. Thomas viewed the Talis staff as incompetent who over scrutinised their claims. GWH were often refused claims for standby or unproductive hours for plant equipment. Thomas argued it was necessary to claim for standby hours for plant equipment as it was a normal practise in road construction and that Talis did not understand the necessity of that practise.
Delays in payments from the Shire to GWH for completed works had begun to occur. Thomas stated this was a result of the cumbersome system for the payment of claims. The system of payment consisted of the submission of resource summary sheets by GWH to Talis for approval which would in turn be submitted to GTS. GTS would confirm the claims and prepare them for the approval and payment by the Shire and the subsequent claim to MRWA. GWH raised concerns over the length of time payments were taking which had occurred because of a lag time between Talis, GTS and the Shire.
According to Simon Thomas, at one-point GWH were owed $800,000 in arrears and advised the Shire Administration he intended to halt the works until payment was received. Thomas believed that the former CEO perceived this as a threat to the Shire to not complete the works which then led him to believe that GWH were in a financially precarious position.
Thomas maintains that this contributed to the then CEO and administration of the Shire becoming increasingly nervous about the completion of the works and ultimately led to Council revoking the contracts. Thomas maintains that GWH was never financially vulnerable and was well equipped to complete the works, continuing to be on budget and on schedule.
Thomas raised the issue of the outstanding payments owed to GWH with the Shire Administration on a number of occasions which then undertook to settle the outstanding debts in a timely manner. Thomas maintains this was only after the termination of the parcel 3 contract.
The former CEO, Colin Bastow thought that in hindsight the roles of Talis and GTS could have been carried out by a single contractor which would likely have reduced some time delay in the payment of invoices and thereby eased financial pressure on GWH.
Although several concerns were raised by the administration regarding the ability of GWH to complete the project they were still awarded the contract. This is probably due to the want of Council and Administration to use local businesses.
Jim Quadrio maintained that the issues that plagued the contract were a result of the former CEO relying too heavily on his then Deputy CEO and the EMTS, who had not supported him strongly enough and acknowledged that he and the Council should have been more astute.
2.1.3 Revoking of flood-damaged road repairs contracts AGRN473
As relationships between the parties connected to the project continued to deteriorate, Council recognised the need to act. The Council and Administration had become concerned that the Shire was at risk of not completing the project in the allotted time period therefore leaving the Shire exposed to financial risk.
A report was prepared for Council by Hoy recommending that contracts for parcels 1, 2 and 3 be terminated and new tender documents be prepared and advertised.
At the OCM of 22 August 2018, the Council resolved to delegate authority to the then CEO to terminate the contracts awarded to GWH for parcels 1, 2 and 3 of AGRN743 and prepare and advertise new tender documents for the supply of plant and operators.
When interviewed by the Authorised Persons, the former CEO stated that he believed he had the discretion to terminate 1, 2 or all of the contracts or not to terminate any of the contracts. However, the resolution of Council clearly directed him to terminate all the contracts.
Prior to the former CEO terminating the contracts, significant correspondence occurred between himself and Cr Thomas acting on behalf of GWH. A lot of the correspondence and discussion was emotive, with Cr Thomas assuring the former CEO that GWH could complete the contracted works. After negotiations between the parties, it was agreed that GWH would complete the works on parcels 1 and 2, but the contract for parcel 3 would be terminated. GWH were told they could re-tender for parcel 3 when the new tender was advertised.
When interviewed, Cr Thomas stated she felt pressured to surrender the contract for parcel 3 with the proviso from the then CEO Mr Bastow, that GWH be allowed to retain the contract for parcels 1 and 2. She was advised that parcel 3 was to be re-tendered and GWH could tender for the new contract.
It is the view of the Authorised Persons that the former CEO acted contrary to the resolution of Council in failing to terminate all three contracts.
A subsequent request for tender was advertised inviting tenders from contractors to complete parcel 3 of the flood damage road repair.
GWH submitted a tender for the works, however the Council awarded the contract to Dean Contracting on 24 October 2018. Prior to awarding the tender to Dean Contracting, the financial status of the company was heavily scrutinised in order to ensure they had the cash reserves to complete the works.
In May 2019 Cr Thomas resigned from the Council believing her position on Council had become untenable.
Legal proceedings have been commenced by GWH alleging breach of contract by the Shire and are currently on foot. Complaints received by the Department from Simon and Caroline Thomas referenced the alleged breach of contract by the Shire, however the authorised inquiry did not investigate these claims due to them being outside the scope of the inquiry and the subject of ongoing civil litigation.
2.2 The overdraft of $2.5M from the Commonwealth Bank of Australia (CBA)
In May 2019, the Shire had outstanding reimbursements from MRWA totalling approximately $5 million. The outstanding amount was a total of WANDRRA claims submitted to MRWA relating to flood damaged road repair, AGRN473.
Although the Shire’s finances were in a relatively healthy state, much of the cash flow was held in term deposit accounts in order to maximise interest revenue for the Shire.
The day to day cash flow of the Shire had become very poor due to the outstanding WANDRRA reimbursements and the Shire Administration investigated the possibility of securing an overdraft facility to ease the burden of payment of the day to day accounts until the funds owed had been reimbursed.
At the OCM of 26 June 2019, the then Deputy CEO, Warren Olsen, prepared a report for Council which indicated that much of the outstanding WANDRRA claims had been reimbursed by MRWA. The report stated that an overdraft was still desirable to assist with the day to day cash flow of the Shire.
The Shire currently has five (5) outstanding loans with the Western Australian Treasury Corporation (WATC) totalling approximately $3.5 million. Master Lending agreements pertaining to these loans stipulate that the Shire must seek the approval of the WATC prior to securing credit from a third party.
It was discovered that the Shire did not seek the approval of the WATC to seek finance from a third party, being the CBA overdraft, thereby breaching clauses 31.5 and 31.8 of the Master Lending Agreeing with the WATC. The former CEO later self-reported this breach once he was made aware of it.
It is important that local governments are aware of their legal obligations, including those under contract, when seeking sources of credit.
2.3 The financial viability of the Shire
2.3.1. Record keeping by the Shire
The Shire’s Record Keeping Plan 2016 (RKP) outlines how the Shire will comply with the
State Records Act 2000
and the procedures associated with the storage of records.
Due to the age of the RKP, procedures relating to the current document management system, Magiq, are not referenced, thus procedures or processes outlined in the RKP are not relevant to the current record keeping systems of the Shire.
Section 4.3.1 ‘Vital Records Program’ of the Shire’s Record Keeping Plan states: “Vital records are stored in a secured area, if hardcopy, or backed up if electronic. The hard copy vital records are held in the administration area except for Council Minutes, legal documents and Management orders which are kept in fireproof locked cabinets.”
On multiple occasions, records such as financial data, was not available and timestamps concluded that information was uploaded into Magiq by Shire staff only after BDO had requested it from the Shire.
BDO were provided with the Office of the Auditor General Audit Findings for the 2018/19 financial year in relation to the Shire. The document was dated 24 July 2020.
The Shire’s Management Comments state “All accounting documents back to 1 July 2017 have now been scanned and registered in to the Magiq Electronic Document Management and Retrieval System and are therefore readily available to Auditors and other.”
BDO identified that documentation in relation to bank reconciliations for the 2018/19 financial year was uploaded in the Magiq system on 5 August 2020, only after BDO had again requested the information.
The Shire’s record keeping limited the scope of work undertaken and significantly delayed the forensic audit of the financial operations of the Shire.
RKP, and timely accounts and records were not maintained and ready for inspection.
2.3.2 BDO findings
As mentioned above at paragraphs [9] and [10], a forensic audit was undertaken by BDO. A copy of BDO's findings are attached to this report. Having reviewed the findings of BDO, it is the view of the Authorised Persons that the Shire did not maintain proper accounting practices.
2.4 The culture of the Shire, including aspects of the elected members and administration
The matters identified above suggest that during the time covered in this report, the culture of the Shire was not one that paid close attention to proper tendering and accounting practices, as a local government should give.
In the course of interviewing Shire staff and Council members, there appeared to the Authorised Persons to be a recognition of a level of dysfunction and strain, although different reasons were given for why that may be. Since then, there have been improvements in the Shire, with reviews currently being conducted of all staff qualifications and financial aspects of the Shire's operations.
When interviewed, the Shire President stated that he couldn’t completely trust the former CEO and Deputy CEO and that although a relationship between himself and the CEO continued to exist, the relationship was strained. The former CEO felt that his relationship with Council was generally good.
Alternatively, the former EMTS Angela Hoy criticised the President for being too sympathetic to the interests of other Councillors and did not handle the conflict of interest between Cr Caroline Thomas and RFT 2017-06 well. Once the administration of the contract pertaining to RFT 2017-06 degenerated between GWH, Council and the Administration the relationship became toxic and reconciliation was futile.
The Shire’s elected members and staff showed a lack of understanding in respect to their roles, responsibilities and obligations under the Act, relevant regulations and Shire policies.
3. Recommendations
It is recommended that;
the Shire of Wiluna employ suitably qualified staff to positions that are responsible for the financial management of the Shire.
The Elected Members of the Shire of Wiluna undertake training in relation to understanding the financial management of the Shire. Such training should similar to the Australian Institute of Company Directors – Courses for the Director and is to be determined appropriate by the Director General and undertaken within 6 months of this report becoming final.
Following completion of the training referred to in Recommendation 2, the CEO is to deliver to the Director General a comprehensive report:
demonstrating the knowledge and understanding gained by the Elected Members from the training; and
identifying members who have attended the training and any reasons for non-attendance; and
outlining the steps taken by the Shire to implement such knowledge and understanding.
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Page reviewed
03 September 2024
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