OLG forced to state the bleeding obvious on employment protection

Every employee in a merged Council should print out and stick up on the wall subsection 354D and 354F of the Local Government Act.  These are the primary employment protection sections - 354D protecting conditions of employment and entitlements and 354F protecting employees against forced redundancy for three years.

Section 354D provides that an employee at the date of the proclamation “continues on the same terms and conditions that applied to the staff member immediately before the transfer day”.  There is no reference to a time limit.  LGNSW sought general advice on the practical application of these subsections from Anthony Britt, a prominent Senior Counsel, who famously made the observation in an opinion that “unlike some of the other “protections” in Chapter 11 Part 6 of the Act, it is not time-limited and, subject to the exceptions in s 354D (2), freezes terms and conditions that applied to the staff member immediately before the transfer date forever”.  Forever, nothing confusing about that. 

But, for the same reasons we could think it’s important to put procedural fairness in disciplinary procedures because some people just don’t get it, plenty of mischief-makers at the merged councils (a much more polite expression than my preference for “ignorant, bloody-minded, unnecessarily combative or nasty bastards” because I do respect wise counsel) and apparently some of their mischief-maker solicitors, allegedly a barrister but which the Council won’t name, some HR flunkies or, in particular, a Chief Operating Officer, thought they could advance an argument that the three years’ protection in 354F also applied 354D.  Wrong, wrong, wrong.

The only way an employee can forfeit or lose their protections under 354D is if they agree to take a lesser position at a lower rate of pay or if they are made redundant under subsection 354F in May 2019.  No contest, no issue, no argument.  At least, except for those who do want to argue it.

The dreaded three-year limit on 354D protection got a run at a number of councils - Central Coast, Georges River, Inner West and Northern Beaches to name four who should know better.  Both Central Coast and Georges River found themselves in industrial disputes with the local government unions and, like the cavalry to the rescue, the Office of Local Government had to state the bleeding obvious.  

On 20 March they sent advice to all IGMs and Administrators to express the self-evident and make it clear that “employees “must continue to be employed under the same terms and conditions unless they voluntarily consent to the alteration of their terms and conditions (this is not time-limited)”.  Their emphasis on not, was included in the letter.

It was timely because it could be handed up that day in proceedings with Central Coast (the Council which claimed it had a barrister supporting them but they won’t name) and may need to be handed up the current dispute with Georges River.

While Central Coast has now appropriately changed their documentation and approach to acknowledge the “forever” nature of the protection, you have to hand it to Georges River and whomever writes their scrappy, inaccurate and confusing documents, to clarify it in the most brutal and belligerent manner possible.  Georges River made it clear that the employee can continue those conditions “noting that Council intends to terminate their employment on the grounds of redundancy after 12 May 2019”. 

This, of course, is a very bold call, seeing no-one really knows what’s happening in two years’ time, there will be an elected Council in office, there will probably be a new general manager and other staff as well.  Still, when you’re proven to be wrong, no-one much does begrudging as well as Georges River.

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