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

The Development and Environmental Professionals' Association (depa)

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

Details: Published: Tuesday, 31 May 2011 10:40

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.

Robbo's Pearls...

Je ne regrette rien

Lucky Edith Piaf, not regretting anything. Who wouldn’t like to live their life like that. Here are some of our regrets over the last 33 years:

The first historic consensus opposing the introduction of term contracts for senior staff was in 1991, and included the employers’ organisations as well as the predecessor of Local Government Professionals (sic), the Institute of Municipal Management. We regret the employer’s organisation abandoning that position, and the history of antagonism to getting rid of the concept of senior staff by LG Professionals (sic).

We regret that LGNSW, up until they responded to the recommendations in Operation Dasha, participating in the unfair dismissal of more senior staff and particularly general managers than anyone else, and probably collectively, more than everyone else.

The role of the Cabinet Office in 1998 rolling the recommendation made by the Local Government Minister at the time Ernie Page, in the five year review of the Local Government Act, that term contracts should be removed because of anticipated flowback into the State SES - which was nonsense. And the decision of the Cabinet that fell for it.

The role of the Office of Local Government, and their SES staff who had been provided with permanent tenure by the Government Sector Employment Act 2013 (something that in the local government we knew nothing about) not flowing a similar provision for senior staff in local government when the SES had been a model for that arrangement in 1993.

OLG’s historic defence of their standard contract and assertion in a variety of investigations, including Operation Dasha, supporting “the “termination without reasons clause... in the event that there was a breakdown in the relationship between the Councillors and the general manager”

And in taunting local government that if they ever delivered a consensus view between the employers and the unions, they would deliver that through the Minister, and then failing to do so.

ICAC in 2002 after investigating Rockdale Council and making findings about corrupt councillor behaviour made observations about “the importance of protections for local government employees involved in the development process”, and then did nothing about it.

ICAC in July 2003, considering correspondence from depa identifying “corruptibility issues that arise from term contracts” after both Rockdale and Tweed, and doing nothing about it, and in a meeting with us in July that year having some pious wanker reject our concerns which he asserted “to some extent that’s the obligation of public service”.

The ICAC 2016 report in Operation Farra at Mid-Western Council observed “the ‘no reason’ provisions in the standard contract, however, could create an uncertain employment environment for a general manager. The Commission’s concern is that such uncertainty could be used to improperly influence the action of a general manager” and, then did nothing about it.

And in Operation Dasha ignoring the submission depa had made about problems with planning and the employment relationships of senior staff, with recommendations for change, that included repealing section 340. We should have been called to give evidence.

We were not able to reach agreement between the unions and LGNSW on transitional arrangements for senior staff similar to the employment protections in section 354D of the Local Government Act continuing senior staff on “the same terms and conditions that applied to the staff member immediately before the transfer day.” This had been the unions’ collective position for a number of months until abandoned in a meeting depa could not attend on 19 March, when an agreement was made by everyone else for what is in the current arrangements.

And obviously I regret spending an hour and a half at the dentist that day and being unable to argue against that happening, and forgetting the first rule of politics - “be there”.

How it could happen that this legislation was carried without dissent, with the support of the Liberal/Coalition Opposition and all Independents, who for most of those years opposed doing anything about this, but who nevertheless subsequently found an interest in doing something about unfair employment practices for senior staff and thought they should trumpet as if it were a revelation, and their idea.

Nevertheless, we record our appreciation and acknowledgement of three people and their critical role in moving LGNSW towards this position in 2021 - President Linda Scott, CEO Scott Phillips and Director Workforce and Legal, Adam Dansie, notwithstanding his awful advice given to Campbelltown to unfairly legitimise disadvantage against a group of employees, predominantly our members.

The LGEA has participated in support over this time, and the USU which, while they were late to the party, they brought a connection to Government, without which this would not have happened. And the new CEO of OLG, doing his best to get over the abject failures and connivance of the past.

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The Development and Environmental Professionals' Association (depa)

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

Robbo's Pearls...

Je ne regrette rien

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