Council issues

Does a Council have to provide training?

Yes. There has been a commitment in the industry, formalised in clause 2 Statement of Intent of the Local Government (State) Award, to "improve skill levels and establish skill-related career paths" since the Award was first made in 1992.

In 1992 the industry threw itself wholeheartedly into a new Award based on improving skill levels and providing progression based on the acquisition and use of new skills. In those days, everyone believed in it and it was Federal Government policy.

But getting access to training at some councils has not always been consistent with the commitment to improve the skill levels of the workforce.

First of all, if you are accredited as a council employee by the Building Professionals Board, there is now an unequivocal requirement to training which, if it is not provided, will not allow the continuation of your accreditation. This puts considerable pressure on councils to properly budget for this training and deliver it.

But if you don't have the imperative provided by the requirements of the BPB, there are still significant obligations on councils within clause 27 Training and Development that require the establishment of training plans and the provision of training to employees consistent with those plans.

Clause 27(i) commits the industry to providing opportunities to appropriate education and training to acquire additional skills. Useful to quote in a submission for approved training.

Clause 27 (ii) guarantees for all employees "reasonable and equitable access to education and training" which is:

  1. Consistent with the Council's training plan.
  2. Enables employees to acquire the range of skills they are required to apply in their positions, and
  3. enhances employees’ opportunities for mobility through councils’ organisation structures, to participate in councils’ training plans.

Note the apostrophes in 27(ii)(c) - this anticipates access to education and training for mobility across the industry.

Clause 27(iii)(a) requires a Council to develop a training plan and budget consistent with:

  1. The current and future skill requirements of the Council.
  2. The size, structure and nature of the operations of the Council.
  3. The need to develop vocational skills relevant Council and the Local Government industry.

Councils will struggle to defend training plans and budgetary decisions that don't do this. Note all so that an individual Council's training plan and budget needs to acknowledge vocational skills relevant in the industry, not just at that Council.

If your Council won't fund training because it does not provide a budget as required by clause 27(iii)(a) then we can make them.

And because clause 27 (iii)(c) makes them develop their training plan in consultation with the Consultative Committee, then there are plenty of opportunities to participate in developing a training plan that complies with the requirements of the Award.

For employees required to undertake training in accordance with the training plan, clause 27(iv) sets out the Council's obligations to provide paid leave, course fees are on (unless you file and you are repeating) transported family expenses, reasonable travel arrangements and flexible work and study arrangements "as are practicable" if you are required to complete major assignments etc.

And clause 27(v) provides your entitlements if you're doing a course consistent with the  training plan but not at the Council’s requirement.

If you are interested in continued training and education, check this clause out. It is a rich minefield of opportunity and obligations for the Council.

What does a Council have to do if it wants to restructure?

The first thing a Council needs to do is to refer the proposal to the Consultative Committee because "consultation with regard to organisation restructure" is one of the functions of the Consultative Committee under clause 28C(i)(c).

This should happen when the Council is contemplating a change and before any decision is made to affect that change - otherwise it's not consultation, it is only information sharing. Some councils don't understand the difference.

Clause 35 Workplace Change and Redundancy is the clause which requires that a Council do a range of things when it has made "a definite decision to introduce major changes in production, program, organisation structure or technology that are likely to have significant effects on employees".

These things include:

  • notifying the employees who may be affected and the unions to which they belong
  • discussing the changes with employees and their unions and what steps the Council can take to "avert or mitigate the adverse changes"
  • giving prompt consideration to the employees and/or their union's concerns including the possibility of reconsidering their original decision
  • commenced these discussions as "as soon as practicable after a definite decision has been made", and
  • for the purposes of the discussion provide the employee and the union "all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on the employee(s) and any other matters likely to affect the employee(s).

This clause also regulates the process of terminating employees who are redundant and requires the Council to negotiate prior to any termination.

This clause provides a redundancy table of payments and termination periods based on years of service at the Council making the employee redundant. Note, provisions under the Award for redundancy payments relate only to the Council making the employee redundant and not to cumulative service with other councils.

If your position does not appear in the new structure, the Council can only move you into another position without your agreement if that position is "of comparable skill and accountability levels and remuneration no less than the position previously held by the employee." This wording is found at clause 35(vi)(a) and was introduced into the Award in (1998) following a long dispute between depa and Randwick Council .  This provision allows an employee to elect to take a redundancy payment rather than a lesser position.

Councils will claim that they have a policy of not making employees redundant but this wording takes control from the employer and provides to the employee the opportunity of taking a redundancy payment up to 8 months pay for more than 10 years service and an entitlement to a "job-search allowance" of up to $2000 to meet expenses associated with seeking other employment subject to proof of expenditure etc" – clause 35(ix).  A claim for the job search allowance must be made within 12 months of termination with the Council.

depa has run many arguments with councils to secure a redundancy payment for employees who believe that the alternative position is of less authority and accountability and/or lower skills. If the new position is at a low level in the organisational structure (for example, there is no longer a direct report to the Director) and if there is a loss of delegations, it is an easy argument that the employee should be entitled to the redundancy payment.

An employee can elect to move to a lesser position and even to a lower paid position - if an employee agrees to move to a lower paid position, the Council is required – clause 35(x) - to maintain the employees original salary and conditions "for a period equivalent to the amount of notice in severance pay that the employee would be entitled to under this Award."

Some councils have redundancy payments through a policy which provide a more generous entitlement than the Award. This is anticipated by clause 35 (xvi) that "nothing in this clause shall restrict an employee with 10 years service or more and Council from agreeing to further severance payments."

Redundancies or potential redundancies are one of those occasions where you cannot get too much advice from the union.

What's a Consultative Committee and what does it do?

In the 1980s, when there was a co-operative relationship between the Hawke/Keating Federal government and the trade union movement, principles were adopted by the Australian Industrial Relations Commission and the various State Commissions to improve the structural efficiency of industries.

Part of this process was the adoption of the wisdom of having a formalised consultation process in industrial instruments to require employers to consult with employees and to allow employees to provide valuable feedback to management about workplace initiatives and how the work is done.

The provision to require the establishment of Consultative Committees at each council was first incorporated in the State Award in 1992. With almost 20 years of hindsight, it's clear it hasn't been easy but there still remains a valuable role for a genuine consultative process.

This doesn't mean Management wheeling in initiatives with an expectation that they will be automatically rubber stamped by the employee representatives, nor does it mean councils proposing initiatives at the Consultative Committee and, even faced with unanimous opposition by employee representatives, continuing with that initiative.

The process is meant to be genuinely consultative and management is intended to be open-minded to this approach.

It is true that consultative committees have exhausted many, many volunteers who went into a process with open-minds and great enthusiasm to be met by tedium, management regarding the exercise as a waste of time, preoccupations with trivia etc. However, Consultative Committees continue to perform a valuable role.

Clause 28 Consultative Committees prescribes the aim, size and composition, scope (that is, the functions) and requirements about meetings and support services.

Significantly, clause 28C(i) provides the following as the minimum functions of the Committees:

  1. Award implementation
  2. training
  3. consultation with regard to organisation restructure
  4. job redesign
  5. salary systems
  6. communication and education mechanisms
  7. performance management systems
  8. changes to variable working hours arrangements for new or vacant positions
  9. local government reform
  10. proposed variations the least practical arrangements

The size and composition of the Consultative Committees (clause 28B) is to be agreed "by Council and the local representatives" from the three unions but there is a minimum requirement of representatives of the three unions which have members at the Council.

While this allows an opportunity for councils to try to reach agreement to have representatives of non-union members, these initiatives are invariably rejected by the local union representatives and this opposition is encouraged by the three unions.

Do I need anyone's approval if I want (or have) a second job?

Section 353 Other Work of the Local Government Act requires only that you advise the General Manager and seek approval for work which "relates to the business of the Council or that might conflict with the members council duties".

Employees are not required to obtain approval for work which falls outside this strict test. We have fought off many councils over this issue since the Act was made in 1993. It is none of the Council’s business if you have other employment on weekends or at night outside the test - unless it becomes obvious that you are tired at work and it becomes a performance management issue.

Please tell us if your Council is requiring people to disclose details of any work. We will stop them doing this.

It's pretty easy to work out if you work "relates to" or "conflicts with" the Council job. This is not a time to be clever, it is a time to err on the side of caution and declare things and have been approved by the General Manager has sound risk management.

Section 353 also allows the General Manager to approve work, even if it "relates to" or "conflicts with" your Council job. The purpose of this section is to ensure that the General Manager knows what's going on so that the GM can, in turn, manage the Council’s risk.

The GM has a discretion to allow this work.

Please note also that section 353 does not specify "perceptions of a conflict", so if a Council refuses an application under this section because of people's perceptions, they are adding a test additional to that provided in the Act. This is inappropriate because the purpose of the section is to allow the Council to manage relationships and conflicts of interest and not the perceptions of the community or others.

Do I have to disclose where I live in my PI declaration?

If you are a designated officer you will have to disclose your pecuniary interests for transparency and risk management. You can prevent public access to that information under section 739 Protection of Privacy.

739 (1) provides a right to "request that any material that is available (or is to be made available) for public inspection by or under this Act to be prepared or amended so as to omit or remove any matter that would disclose or discloses the person's place of living if the person considers that the disclosure would place or places the personal safety of the person or of members of the person's family at risk."

The remainder of that section is the process to be followed.

If you make a request under section 739 for the protection of this private information, and the Council refuses it, contact us immediately.

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