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Inside track: Local Government

10 March 2021

#Local Government, #Workplace Relations & Safety

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Inside track: Local Government

Negotiating enterprise agreements: Key considerations for local government employers

Many local government employers will be renegotiating enterprise agreements this year. The next 12 months will be a unique and challenging environment in which to do so.

The impacts of COVID-19 have negatively affected the financial position of local councils, with many expected to report operating deficits in the 2020-21 financial year. This backdrop of decreased revenue and additional financial pressures leaves little to offer in terms of pay increases.

In addition, local government employers, like other employers, have to deal with the impact of COVID-19 on the workplace, including heightened levels of psychological distress, increased personal financial pressure, social isolation and fears of job loss. These factors can lead to increased absenteeism, workers’ compensation claims and low productivity. Working arrangements for office-based staff have also fundamentally changed and there is an expectation that flexible working arrangements, whether working from home or outside the conventional work hours, will continue.

Councils will need to consider whether, amidst all this uncertainty, it’s better to delay the commencement of negotiations until there is greater certainty about the future. Many councils have already done this in Victoria and it looks like it is something unions, at least, will contemplate.

That said, delaying enterprise bargaining could also be considered a lost opportunity for councils. At present, there appears to be a general appreciation among workers (and unions) of the financial pressures facing employers. Councils may lose the benefit of this understanding if the bargaining is delayed for another year. Employers also have the opportunity to implement and set a framework of working arrangements that play to their employees’ willingness for structured flexibility.

Any employer seeking to engage in successful collective bargaining in this environment needs to appreciate the heightened sensitivity to change and the greater need for clear, consistent, transparent and empathetic messaging.

Employees need to believe their employer places a high priority on their health and safety. This will be enhanced if councils focus on working conditions supporting infection control, physical and mental health and increased flexibility.

In particular, local government employers will need to review the experience of their employees working from home and assess the viability of these arrangements for the future. Many existing local government enterprise agreements give broad discretion to the employer in approving working from home arrangements. This will likely be a point of contention in enterprise bargaining, and councils should consider in advance the kinds of parameters they are willing to put in place around these arrangements.

Local government employers engaging in enterprise bargaining will also need to grapple with concerns raised by unions around working from home arrangements, including:

  • concerns of a push for a longer spread of ordinary hours
  • unpaid overtime
  • an expanded use of Individual Flexibility Arrangements
  • the costs of workstations, internet, electricity being shifted to employees
  • work and family balance becoming even more difficult, with adverse consequences for mental health and heightened family and domestic violence
  • keeping the home working environment safe and free from ergonomic risks.

The Australian Council of Trade Unions is developing a template log of claims reflecting these concerns, among others, and local government employers can expect to see this coming their way in bargaining rounds.

Given the increased financial pressures facing councils, considerations around downsizing, organisational restructuring and outsourcing are inevitable. There will also be consideration of greater use of time-limited contracts, although they also bring their own issues. Councils should consider these realities in their enterprise bargaining and the extent to which they may need to seek increased flexibility in their agreement terms. This is particularly the case with the use of fixed-term engagements, as many local government agreements confine their use to temporary roles. Any increase in the use of fixed-term agreements will likely be heavily contested by unions.

Most importantly, employers will need to consider their overall bargaining strategy and how that aligns with good faith bargaining requirements. The good faith bargaining framework created by the Fair Work Act 2009 (Cth) (FW Act) creates both opportunities and risks for an employer. The former will be maximised and the latter minimised with appropriate preparation and strategy. Before commencing the bargaining process, employers should consider the following:

  • what are non-negotiable terms and where are the potential areas of concession – noting that ideally, the latter will be worth more to the employee and union bargaining representatives than they cost the council
  • the good faith bargaining rules are data-driven and any assertions that a council’s financial position does not support a pay rise will need to be backed with relevant information and evidence
  • what are the best-case and worst-case scenarios if enterprise bargaining reaches an impasse? If negotiations break down and there is a threat of industrial action being organised, does the council have sufficient leverage to win over the workforce contrary to the opposing view propagated by the union?
  • what are the union’s interests?
  • the number of union and non-union bargaining representatives, including any employees that might appoint themselves as bargaining representatives. If there are too many non-union bargaining representatives, will the council seek intervention by the Fair Work Commission for more efficient bargaining?

Good faith bargaining obligations require the articulation of proposals and timely response by other parties. However, they do not require any party to make concessions during bargaining or to reach an agreement on the terms that are to be included in an agreement.

The Council employer can stay strong in its position during negotiations and only make reasonable concessions where it is appropriate to do so, but that strategy brings the risks of industrial action. Hard bargaining is not bargaining in bad faith, but parties must genuinely participate in the bargaining process and not “adopt the role of a disinterested suitor”.

Finally, while not a requirement under the FW Act, it is useful for a council to have regular communications with its employees about the progress of bargaining. This presents an opportunity for the council to keep employees informed, but also communicate its position in terms that are persuasive, but not misleading or intimidating. 

Communications with employees about the negotiations should be designed to highlight the benefits of the employer’s position on negotiation issues, report on the bargaining progress and constructively analyse proposals by other bargaining representatives (including correcting misleading information and identifying risks of claims). However, it should not be seen as an opportunity to responsively quibble with communications by unions among its members. Doing so is likely to fracture rather than unite the workforce, and be counterproductive to reaching an agreement.

Authors: Ben McKinley & Hannah Dunai

In the media

New list recognises importance of building back better
Infrastructure Australia’s new focus on ensuring that all communities have access to quality infrastructure has been welcomed by the ALGA. The infrastructure advisory body has added 44 new proposals to its 2021 Infrastructure Priority List prioritising: improved digital connectivity, support for economic development in regional communities, and road and freight connectivity (26 February 2021).  More...

New bodies to guide Queensland, NSW on renewables
NSW and Queensland have established bodies to advise government on renewables. NSW’s first Renewable Energy Sector Board will work to boost local procurement and jobs, with the Queensland government announcing the establishment of a ministerial energy council to work with government on delivering the state’s future energy needs (25 February 2021).  More...

Report calls for investment in faster rail
Australia's investment in upgrading rail infrastructure is lagging behind other countries, a report says. The report calls for investment in faster rail services across Australia to connect CBDs to neighbouring regional centres, but says high speed rail isn’t the immediate answer (22 February 2021).  More...

A new national approach to information and warnings during emergencies and natural disasters
The new Australian Warning System is being rolled out and will provide, for the first time, a national approach to issuing warnings for hazards such as cyclone, flood, storm, extreme heat, bushfire and severe weather (15 February 2021).  More...

Queensland

There are only nine left in Queensland, but council wants to demolish this historic saleyard
The fight to save a century-old saleyard south of Brisbane from redevelopment isn't over, despite locals winning a battle for it to be heritage listed (27 February 2021).  More...

Brisbane ratepayers spend $132 million buying back bus depot they used to own
Brisbane City Council has spent $132 million purchasing a bus depot in Sherwood, after selling the land in 2009 for $21 million and leasing a purpose-built depot from its private owners ever since (26 February 2021).  More...

"The La Niña's failed us:" Scenic Rim farmers battle "green drought" as dam levels plummet
Farmers west of Brisbane are pushed to the brink by a "green drought," but are doing all they can to survive as Moogerah Dam levels drop to just 13 per cent – as low as they were in the Millennium drought (26 February 2021).  More...

Council slams Adani's treatment of landholders, says it has "lost patience" with company
A Central Queensland Council, known for supporting mining and its economic impact, says they have "lost patience with the behaviour" of Adani's Australian arm, Bravus (24 February 2021).  More...

Gold Coast council CEO ousted from top job
Gold Coast City Council chief executive Dale Dickson is packing up his drum kit after nearly two decades leading Australia's second largest local government (24 February 2021).  More...

Three of Brisbane’s five new bridges are hanging in limbo
Three of the five new green bridges slated for inner-city Brisbane are still awaiting decisions on their final design and location almost a year after the council’s re-election (24 February 2021).  More...

$2 billion waterfront Brisbane development appealed in planning court
A massive $2 billion redevelopment of Eagle Street Pier could be delayed or overturned after a court appeal is lodged by the commercial owners of a neighbouring tower (24 February 2021).  More...

Pressure mounts on Brisbane City Council to reduce developer influence
A range of groups are now asking Brisbane City Council to reduce the ability of developers – as landholders – to influence the neighbourhood planning phase (23 February 2021).  More...

Light rail a "no-brainer" but opposition builds to coast mass transit plan
Sunshine Coast Council is due to start community engagement on its proposed mass transit system in the next few months, touting it as a sustainable transport solution to deal with the region’s growing pains (19 February 2021).  More...

Boggo Road Gaol commercial development application still waiting for council decision
A development application for a mixed shopping and office building at the heritage-listed Boggo Road Gaol site in Brisbane's Dutton Park is still waiting for a decision (19 February 2021).  More...

"We're not the Gold Coast:" The fight against mass transit on the Sunshine Coast
Sunshine Coast Council is due to start community engagement on its proposed mass transit system in the next few months, touting it as a sustainable transport solution to deal with the region's growing pains (19 February 2021).  More...

Disaster assistance extended to more communities impacted by ex-tropical cyclone Imogen
Disaster assistance has been extended to the local government areas of Cairns, Townsville and Pormpuraaw following ongoing impacts from ex-tropical cyclone Imogen (19 February 2021).  More...

Hervey Bay to get new "central heart," including library and business centre
Fraser Coast Mayor George Seymour said the creation of a proper CBD had been a priority and on the agenda for decades. The Hinkler Regional Deal is a five-year commitment between the Federal Government, Bundaberg and Fraser Coast Regional Councils to grow the region. Community consultation on a new Pialba Town Centre Master Plan is expected to commence in coming weeks (18 February 2021).  More...

Disaster assistance available for flood-impacted communities in far North Queensland
Disaster assistance is now available for nine local government areas in remote far North Queensland impacted by flooding brought on by a tropical low in late January (16 February 2021).  More...

This region wants to be more than "the bit in-between" Brisbane and the Sunshine Coast
Moreton Bay wants to "turbocharge" its economy by doubling it to $40 billion by 2041. It plans to add more than 100,000 jobs to attract residents to the "hidden gem" region (17 February 2021).  More...

In practice and courts

Requirements on local governments
From 10 March 2021, all local governments must notify the Minister for Foreign Affairs of a proposal to enter or negotiate a foreign arrangement. If the arrangement is entered into, the Minister must also be notified about the arrangement within 14 days. The Act requires all local governments to provide a comprehensive list of all their existing foreign arrangements (including non-binding arrangements) to the Department of Foreign Affairs and Trade (DFAT) by 10 June 2021. Registration of an arrangement is made via DFAT’s online portal accessible here. You can find more information on the Scheme and the arrangements to which it applies on the DFAT website.

Information and warnings during emergencies and natural disasters
The new national Australian Warning System will provide, for the first time, a national approach to issuing warnings for hazards such as cyclone, flood, storm, extreme heat, bushfire and severe weather. The three-tiered system that is currently in place for bushfire is unchanged and will, in time, be applied to other hazards. All states and territories will employ a consistent set of icons to show active incidents on websites and apps. For more information, view the Australian Institute for Disaster Resilience's website.

Cases

Queensland

Sunshine Coast Regional Council v Gavin & Anor (No. 2) [2021] QPEC 2
ENVIRONMENT AND PLANNING – BUILDING CONTROL – OTHER MATTERS – where the first and second respondents constructed a building and used it as an "accommodation building" in a zone where this use was not permitted – where respondents accepted they had committed development offences – what enforcements orders are appropriate to secure compliance with the legislative scheme.
ENVIRONMENT AND PLANNING – OTHER MATTERS – STAY OF ORDERS – where enforcement orders to be made requiring building works to be carried out – where respondents have commenced proceedings in the Court of Appeal – where respondents seek a stay of the orders – whether prejudice to applicant or respondent.
ENVIRONMENT AND PLANNING – OTHER MATTERS – COSTS – where application for enforcement orders – jurisdiction to award costs – where applicant largely successful – whether respondents should only pay a part of the applicant’s costs – whether applicant should have its costs of briefing senior and junior counsel.
Planning Act 2016 Qld s 180; Planning and Environment Court Act 2016 Qld s 58, s 59, s 61(1), s 63.
Planning and Environment Court Rules 2018 Qld r 4; Uniform Civil Procedure Rules 1999 Qld r 680, r 686, r 687, r 702, r 742.

Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.

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