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

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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.