Local Government (COVID-19) Splinter Award 2020 to be made on Tuesday 14 April

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Published: Thursday, 09 April 2020 12:20

The USU yesterday sent a Member Update to all their members advising there would be an application made for a Splinter Award which would provide protections and certainty for employees during this COVID-19 crisis. We were going to wait until Tuesday to advise you all about what it was, what the benefits were and how it was our view it would have limited application for our members.

The application was filed late yesterday by LGNSW, and we’ve now been advised that the Award will be heard at 3pm before Commissioner Murphy in the Industrial Relations Commission on Tuesday 14 April. It seemed prudent to wait until the Award was made that afternoon to send this information to you, but because there is already information out there, we are acting now.

As you know, there are plenty of councils out there where general managers think their only option is to stand employees down because there is no useful work that can be done. This may be due to orders made  by the NSW Government closing pools, gymnasiums, leisure centres, libraries etc but there is no general right to stand down under the State Award and there would need to be individual applications made by individual councils.

We know that there were many GMs frothing at the mouth at the prospect of standing employees down and for the last week and a half, LGNSW and the unions have been developing a Splinter Award to provide some more flexibilities for employees who will remain at work, and salary protections for any who may not.

Our view is that our members are generally protected and it will be unlikely that councils will want to close down their functions because almost everything you do is required to be done by legislation, with appeal dates and requirements about certain things happening within timeframes, and in the absence of some kind of moratorium by the NSW Government on those obligations, the work will simply have to be done. Phew.

We know of some members who reckon they’ve got nine months’ worth of planning to do but it does seem highly probable that everyone else will be protected, certainly for the life of the three months lockdown currently being managed by the NSW Police.

The Splinter Award will be made by agreement of the Award parties - LGNSW USU, LGEA, the Nurses and depa- on Tuesday afternoon and the only issue not yet known is which councils will be opting in so that the Award applies to them and their employees. We won’t know that until Tuesday morning, so in a perfect world it would have been smarter to keep this information until then. As we know, we’re not operating in a perfect world.

Here is a link to Splinter Award application, remembering that there are no councils yet listed in what is described as “Schedule A-Employers Covered by this Award”, but what the Award does is this:

1. it will operate for twelve months from the date it is made and only in relation to decisions made responding to the current pandemic.
2. Clause 10 allows employees to be directed to carry out suitable alternative duties, consistent with the current arrangements and ensures that appropriate payments will be made.
3. 3 allows the employer and an employee to agree to the employee taking accrued annual leave at half pay, and
4. 4 allows employees with less than five year’s service and the employer’s consent to take long service leave in advance.
5. Clause 11 regulates employees working from home, which is everyone’s preference if it is practical (hurry up to those councils who are dawdling!)
6. Clause 12 starts the critical provisions in what is described as ”Part 6-Close Down”.
7. 1 requires the Council to explore suitable alternative duties if “normal duties at their normal place of work” are not available.
8. Clause 13 “No Useful Work applies only to permanent full-time and permanent part-time employees and only and if the employer “has no useful work for employees” (as we say, something councils will find difficult with our members) then employees can be temporarily stood down but only under certain conditions.
9. 3 requires any employee stood down or partially stood down to be paid “COVID-19 special leave at their salary system rate of pay for four weeks” or until useful work can be provided.
10. 5 regulates how COVID-19 special leave is taken.
11. 10 provides that a special rate of pay will be paid for an employee who remains stood down or partially stood down. The special rate is $858.20 and is payable for up to 3 months.
12. And 13.12 allows that employees can apply to have the $858.20 supplemented with accrued annual or long service leave, to bring it up to their ordinary pay.

That’s the most useful summary we can provide and we remind you all that you can only be stood down where the Council “has no useful work for employees”.

The Splinter Award does not affect the rights of employers, consistent with the Local Government State Award 2017, to give employees notice of a requirement to take excess leave.

We will send you a further depaNews like this on Tuesday afternoon after the Award is made so you know which councils are to be covered by it.

And we also remind you that if a Council contemplates standing down our members, and it’s clear there is useful work available, we will nail the bastards and prevent that happening.

Here is a link to Splinter Award 14 April.

Link to Minister's letter 22.10.20

Link to our reply 23.10.20