On 1 January 2014 up to 1,315 employees will transfer from continuing to new local governments. Here are some of the key employment issues to consider before then.
The CEO of each continuing local government must decide which employees are to be transferred from the continuing local government to the related new local government (transferring employees) and advise the Transfer Manager accordingly.
The Transfer Manager must then determine the roles of the transferring employees in the interim organisational structure for the new local government and identify transferring employees that are unable to be meaningfully placed in the interim organisational structure.
These selection processes will be subject to close scrutiny from the unions and employees and so must follow a transparent and defensible process. In particular, CEOs and Transfer Managers should be able to defend their selection processes in the event of any claims of discrimination or breach of the freedom of association provisions of the Industrial Relations Act 1999 (Qld) or the general protections provisions of the Fair Work Act 2009 (Cth). The general protections provisions will apply if the relevant local government is considered a trading or financial corporation, which will depend on the activities undertaken by it.
Terms and conditions of employment
New local governments are not obliged to employ transferring employees on the same conditions which applied to their employment with the continuing local government before the changeover day. This is, however, subject to any industrial instruments applying to the transferring employees immediately before the changeover day. Such industrial instruments will continue to apply to the transferring employees in their employment with the new local government.
In these circumstances, the new local government may choose to modify the transferring employees’ terms and conditions of employment that are not contained within the applicable industrial instruments and which may, for example, be found in individual employment contracts and workplace policies and procedures.
This provides significant scope for new local governments to tailor the transferring employees’ terms and conditions of employment to the requirements of the new local government. However, new local governments should be mindful of anti-discrimination, freedom of association and general protections laws when making decisions in this regard.
If the new local government chooses not to modify or replace the employment contracts, policies and procedures which applied to the transferring employees’ employment with the continuing local government prior to the changeover day, those existing instruments will continue to apply to the transferring employees and the new local government after the changeover day, as if a reference to the continuing local government was a reference to the related new local government.
Some transferring employees may be required to commence duties for the new local government under the direction of the Transfer Manager prior to the changeover day. Such employees will remain employed by the continuing local government until the changeover day.
This will have implications in relation to work health and safety obligations and the Transfer Managers should be aware of their obligations under the Work Health and Safety Act 2011 (Qld). From a practical perspective, it is important that it is clear to such employees who they are taking instructions from, and reporting to, during this transition period.
New local governments will be responsible for:
- the costs associated with any transferring employees made available by the continuing local government to the Transfer Manager for the related new local government prior to the changeover day; and
- any amounts payable to transferring employees who are retrenched or made redundant on or after the changeover day.
This is something Transfer Managers will need to take into account when utilising transferring employees prior to the changeover day and when placing transferring employees into the interim organisational structure.
New and continuing local governments will also need to consider these amounts when calculating the cash assets to be transferred from the continuing local government to the related new local government on the changeover day.
Effective, ongoing communication is one of the keys to successfully managing the de-amalgamation process. It will not only provide clarity and certainty to employees throughout a potentially stressful process, it will also assist the new and continuing local governments to retain key employees.
New and continuing local governments should be mindful of their consultation obligations under applicable industrial instruments and should also consider these guiding principles:
- be upfront with employees that will and will not be impacted by the de-amalgamation;
- be proactive in providing information to employees to prevent it coming to their attention indirectly;
- be consistent in all communications with employees – consider nominating defined contact persons and put key communications in writing to avoid confusion;
- pick an appropriate forum for all communications, which may be through unions, by mass written communications or personally; and
- respond to all employee concerns in a timely manner.