Clause 2 Statement of Intent of the Local Government (State) Award provides "the parties to the Award are committed to co-operating positively to increase the structural efficiency of Local Government and to provide employees with access to more fulfilling, varied and better-paid work by providing measures to, for instance:
- improve skill levels and establish skill-related career paths;
- eliminate impediments to multi-skilling;
- broaden the range of tasks which a worker may be required to perform;
- achieve greater flexibility in workplace practices;
- eliminate discrimination;
- established rates of pay and conditions that are fair and equitable; work reasonable hours;
- ensure flexibility for work and family responsibilities; and
- ensure the delivery of quality services to the community and continuous improvement.
The seventh dot point commits parties to the Award to ensuring "flexibility for work and family responsibilities" although flexible work/family arrangements are also arguable under the fourth point.
Clause 21 Flexibility for Work and Family Responsibilities lists a range of flexible work and leave arrangements in paragraph (ii) but paragraph (i) is the key. It reads:
A Council and an employee, other than a casual, may agree to flexible work and leave arrangements to enable the employee to attend to work and family responsibilities. The Council can not unreasonably withhold agreement on flexible working leave arrangements, provided its operational needs are met.
The requirement that the Council not "unreasonably withhold agreement" means that it is difficult for a Council, if an employee can establish that its operational needs do not suffer, to reject reasonable requests for flexible work and leave.
If you are going to draft an application seeking flexible working arrangements because of family needs, send us a copy of your draft before you submit it and we will give you some feedback to make sure you are presenting the best possible argument.
We like to push out the boundaries of flexibility for family purposes.
The parties to the Award recognised the importance of providing some standard obligations on councils for minimum requirements in their salary systems. If there were no obligations, some councils would never review rates of pay, provide progression or anything else.
Clause 7 Salary System ensures that each council has a salary system which provides:
- Employees are paid a rate recognising the skills applied on the job.
- A structure on top of the entry-level and steps for progression over and above the entry level.
- All positions are provided with a grade(s) in the structure and the position can expand across more than one grade.
- Progression is based "on the acquisition and use of skills. Where skills-based progression is not reasonably available within the salary range for the position, employees shall have access to progression based on the achievement of performance objectives relating to the provision." Performance objectives are set in consultation with the employee.
- Skills for progression are to be assigned to each step in the grade or set at the annual assessment "provided that such criteria shall provide an opportunity to progress through the salary system."
- Unless otherwise provided, at least annual assessment for progression or "when required to use skills that would entitle them to progress in the salary system".
- No obligation on the Council to provide annual assessment if the employee has topped-out but if the employee requests an assessment, the Council must provide one.
- Employees are advised at the annual assessment of the "skills and/or the performance objectives required for the employee to progress to the next salary point/step and shall review the employee training needs.”
- An appeal mechanism against any assessment
- Access for employees to information regarding the grade, salary range and progression steps of the of their position
- No reduction in pay or salary range if the Council changes salary system structure.
Who would have thought all these things were required? There are significant obligations on councils here and complementarily, significant rights for employees.
Clause 8 Use of Skills (ii) allows a Council to direct an employee to carry out higher duties work only if those duties "are within the limits of the employee’s skill, competence and training.”
Clause 8 (iii) requires the Council to pay the employee "the salary system rate of pay that recognises the skills the employee is required to apply on the job."
This is ordinarily the rate of pay of the usual incumbent of the position – not necessarily the same skill step but certainly the same grade for the job in the salary system.
The Council can require you to do so if you have the “skills, competence and training”. You have to have all of these, not just one or two, and if you don’t they can't require you and if they do, you can refuse.
If the Council wants you to act in a higher graded position (eg, as the Director) and this means there may be additional hours or attendance out of your normal hours at Council or other meetings etc, and you are concerned about the impact of those hours on your family or other responsibilities, you can use this as an argument to not act in this position.
Keep in mind it's normally good experience to act in a higher position.
The salary system clause requires that the Council provides you with an annual assessment and potential progression based on the acquisition and use of skills.
If the position has changed while you have been in the job and is now more complicated, requiring a higher level of skills or more discretion or delegations on your part, you can ask that the position be re-evaluated under the Council’s job evaluation system. There is usually a policy document or protocol describing how this should occur.
A lot of councils are currently providing a market allowance in an attempt to attract and retain staff. How they calculate an appropriate allowances varies - some councils use external consultants’ surveys of what they claim to be competitive salaries in other local government areas but the best measure of what a Council needs to pay is what prospective employees ask for.
Many Council salary systems will incorporate a provision about acknowledging the market but there is often a gap between this acknowledgement and actually coughing up the extra money.
It makes sense for a Council to acknowledge those employment areas where there is a shortage in the industry (like health, building and planning professionals) and to standardise market payments for everyone in the group.
It makes no sense to pay one employee a market component to stop them going to the Council next door and not extend that to the others in the same classification. If a Council does this, they set up a course of action that does no-one any favours – employees have no choice but to get an offer for a job they don’t really want to go to (and waste the time of those involved in recruitment at the other Council) only to allow their own Council to pay them a market component.
The 2010 Local Government (State) Award at clause 15 provides significant restrictions on a Council's ability to increase the level unreasonably and to do other things which prejudice your private access to a Council car under leaseback arrangement.
While clause 15 is reproduced below, a significant development in this Award was the acknowledgement that many employees have a car through a leaseback scheme as a condition of their employment - usually arising from the way the Council has advertised access to a car, and/or references in letters of appointment etc.
Make sure when a Council offers you a job that you have the condition of employment acknowledged in the letter of offer. If the Council really wants you they will agree to having your right acknowledged under clause 15B(i).
Most employees covered by depa will have a car as a condition of employment and the Award now provides that once you've got the car as a condition of employment, the Council can only take it away with your agreement. This is a significant development.
The Award acknowledges that there are some employees for whom access to a leaseback agreement is not a condition of employment. depa’s view is that there will be very few health, environmental, building or planning professionals falling into this category. And while councils may claim the car is not a condition, this is arguable. Even if a Council says it isn’t in the letter of offer doesn’t mean it isn’t - but better to avoid the argument and have your right made clear.
Clause 15 also:
- requires the Council to refer proposals for any variation of leaseback arrangements, including the formula for calculating the lease agreements, to the Consultative Committee - Clause 15C(iv),
- prevents the Council from increasing the leaseback fee by more than 10% or the percentage movement in the Eight Capitals’ private motoring component of the CPI – clause 15C(v), and
- provides a mechanism for employees changing their working hours (in particular, reducing by going to part-time work)or going on extended leave, to agree to a different leaseback fee. This is particularly relevant for employees who want to reduce their hours to go to part-time work.
The announcement in the Federal Budget that the sliding scale of FBT payments based on the kilometres travelled by the car is to be scrapped and replaced with a standard 20% tax is currently being digested by the industry (May 2011).
It never made any sense to have a tax which reduced if you travel more kilometres. This additional travel increased other costs and its encouragement to emit more carbon.
Already some councils are threatening employees that they will try to recoup the increases in FBT from them as part of leaseback fees but these councils are missing the point that providing employees with private use of cars clearly benefits the Council as well as the employees concerned and that this is not an appropriate course of action. Imagine a council trying to recruit you lot without offering a car.
Clause 15 of the State Award restricts councils to increases of less than 10% anyway.
The new statutory rate will be phased in from 10 May 2011 over four years.
The single rate of 20% will:
• Increase the tax concession provided for cars driven less than 15,000 km a year;
• maintain the current tax concession provided for vehicles driven between 15,000 and 25,000 km a year; and
• decrease the tax concession provided for vehicles driven more than 25,000 km a year.
It will be cars travelling more than 25,000 km per annum that will be the problem.
Discussion is ongoing to monitor the impact of these changes on councils and their fleets so that we can better manage this issue across the industry.
When you are directed to work overtime, is the short answer. Overtime is not available for an employee who decides to work additional hours of their own volition and there are many occasions where, to get a job out of the way, employees work longer than the hours that are required under the Award. Sometimes this is counter-productive because councils love people working for nothing.
However, an entitlement for overtime only arises when an employee is "directed" by a more senior person to do work for which overtime would normally be paid. This can be after normal working hours, on weekends, or called out after going home.
It makes sense for councils to provide a component in the rate of pay for more senior positions where there may be some acknowledgement of more out of hours work or more regular time beyond the 35 hours a week prescribed in the Award - for example, managers and directors attending Council meetings out of hours. This allowance should be a genuine reflection of the hours worked and not an empty gesture, albeit offered with a fanfare and great generosity by the boss. It makes sense to do a calculation of expectations and work out the appropriate allowance from there.
Employees who are "on call" and get paid the on-call allowance under the Award are required to be available for work if they get called.
If you don’t get an on-call allowance, you are not on call and not under any obligation to answer your phone after hours. No-one really wants work calls at home, do they?
Councils think there is some imprecision about employees whose names may appear as emergency contacts in phone books being available to the public, or to other agencies. If an employee is rostered to be the contact person to do work, then the on-call allowance should be paid.
There is no obligation for any employee to do any work from home outside normal hours.
It is at the employee's absolute discretion whether they choose to take time in lieu instead of payment. The Council cannot force an employee to take time in lieu - clause 18A(vi). Some councils will say that all overtime is compensated with time in lieu but this is wrong. It is solely the employee’s prerogative. Tell them thy're dreaming.
There is no option to take time in lieu if an employee is on call and called back to work. This is expressly prohibited by the Award, they have to pay you.
Yes, they can. There is a common law right for employers to require the working of "reasonable" overtime and this is acknowledged in clause 18A(viii)(a). But don’t panic, 18A(viii)(b) provides an ability for an employee to refuse the overtime "in circumstances where the working of such overtime would result in the employee working hours which are unreasonable."
Paragraph (c) lists a number of things which assist in determining whether overtime is unreasonable or otherwise:
- Any risk to the employee;
- the employee’s personal circumstances including any family and carer responsibilities; the needs of the workplace; the notice, if any, given by the employer of the overtime and by the employee of their intention to refuse it; and
- any other matter.
Personal circumstances, including family and carer responsibilities, are the usual reasons for an employee being able to refuse overtime but these reasons will need to be substantiated.
depa has always been philosophically opposed to the introduction of term contracts in the industry. These contracts add no value the employment relationship and allow lazy or unscrupulous employers to terminate the employment of good employees by allowing the contract to simply expire.
Term contracts are now effectively prohibited under clause 30 of the Award unless the work is identified as of a specific duration. It is now unacceptable under the Award to place positions on term contract which are ongoing and continuing.
Leaving aside access to part-time work and flexible arrangements for family purposes, the Award specifically provides for employees looking to transition into retirement at clause 22 Phased Retirement.
Clause 22 (i) encourages councils "to develop and promote flexible work and leave arrangements to enable their employees to better manage their transition into retirement"
And (ii) lists examples of flexible work and leave arrangements which could do this.
While there is no absolute right provided in the Award, the Industrial Relations Commission would find the intentions of the parties to the Award persuasive in providing encouragement to develop and promote these practices.
Clause 23 Part-Time Employment is also relevant for employees wanting to move to part-time work for reasons other than family and carer responsibilities or transitioning to retirement.
It used to be two weeks but Clause 34 Termination of Employment in the 2010 Award provides an obligation equal to that which applies to the employer terminating your employment.
- Less than two years service at least 2 weeks notice
- two years less than three years at least 3 weeks
- three years and less than five years at least 4 weeks
- five years and beyond at least 5 weeks
The increased notice period was provided in response to concern by councils that they were being left in the lurch by departing employees. We thought that would have been balanced out by the need for the new employer to get that employee on board sooner rather than later.
We also know that many councils are happy to reach agreement on a shorter period of notice on the basis that if the employee is going anyway, they are not going to be setting astonishing performance records while they work out the notice period.
Clause 34(ii) allows a Council and an employee to agree to a shorter period of notice.