This is update number 3 in a series of updates that have been released over the past few months regarding Union member benefits which differ from non-union members, under the 2020 NSW Local Government (State) Award. Our first update (20/4/21) covered the Union Picnic Day. Our second (20/5/21) covered Disciplinary Procedures. This update covers Workplace Change.

Your award

This particular clause which other than the disciplinary procedures clause has far more potential than almost all the rest of the award provisions to affect a workers’ working conditions or even their employment future.

The clause refers to the Unions on twelve (12) separate occasions making the clause’s relevance to UNION MEMBERSHIP very important. (see below in blue)

The clause breaks down into several separate sections all of equal importance regarding the benefits and rights of a worker who BELONGS TO A UNION.

Protected by your unionClause 41 Workplace change makes it abundantly clear that an employer who is seeking to make changes that may have a significant effect (see definitions (i)(a)) on them must notify the effected employee/s AND THE UNION TO WHICH THEY BELONG at least 28 days before seeking to implement any proposed change.

IMPORTANTLY the 2020 Award also encourages employers to consult with relevant employees and/or UNIONS when developing options for proposed workplace change in the PRE-PROPOSAL STAGE (II).

A good employer will consult before making a definite decision to consider all appropriate options before making a decision they may need to reverse or alter after considering the required prompt consideration to matters raised by the effected employee/s and their UNIONS as per (III) PROPOSAL STAGE (c) and in the DECISION AND IMPLEMENTATION STAGE (IV).

It should be understood that the Award does not mention or require to provide such notice to anyone other than an affected employee AND THE UNION TO WHICH THEY BELONG.

Employers in our experience don’t ask non-union members who else they should notify or who they want to represent them.

In such cases NON-UNION MEMBERS ALMOST ALWAYS FIND THEMSELVES UNREPRESENTED at a time when their working conditions or even their employment is at risk.

Clause 41 Workplace change PROVIDES THE RIGHT TO UNION PARTICIPATION IN DISCUSSIONS including THE RIGHT FOR THE UNION TO PUT FORWARD SUGGESTIONS and for the employer TO PROVIDE THE UNION WITH ALL RELEVANT INFORMATION.

This assists the employee (UNION MEMBER) to receive proper representation before and during the workplace change process to achieve the best possible outcome.

Workers should be aware that past history has shown that workplace restructuring frequently occurs in many workplaces in local government.

It should also be understood that Councils are required under the NSW Local Government Act to review their organisational structure within 12 months of the council elections.

Elections for the next term are due in September this year which will require every Council to review its organisational structure and services within 12 months of this coming September.

  1.  WORKPLACE CHANGE

    (i) Definitions
    (a) In this clause:
    “Significant effects include:

  • termination of employment; or
  • major changes in the composition, operation or size of the employer’s workforce or in the skills required; or
  • the loss of or reduction in, job or promotion opportunities or job tenure; or
  • the alteration of hours of work; or
  • the need for employees to be retrained or transferred to other work or locations; or
  • job restructuring.

Provided that where the Award makes provision for the alteration of any of the matters referred to above such an alteration shall be deemed not to have significant effect.

(ii) Pre-Proposal Stage

  1. An employer may consult with relevant employees and/or unions, where appropriate, when developing options for proposed workplace change.
  2. Consultation under subclause (ii)(a) does not need to occur in writing.

(iii) Proposal Stage

  1. Employer’s duty to notify a proposed workplace change that is likely to have significant effects – Subject to the exceptions identified at subclause (v) of this clause, where the employer proposes a workplace change that is likely to have significant effects, the employer shall provide notice in writing and transmitted electronically (where available), to the employees who may be affected by the proposed change and the unions to which they belong at least twenty-eight (28) days prior to making a definite decision.
  2. Notice of proposed workplace change under subclause (iii)(a) shall include:
    1. the nature of the proposed change;
    2. the reasons for the proposed change;
    3. the positions likely to be affected; and
    4. such other information as is reasonable in the circumstances.
  3. Employer’s duty to discuss proposed workplace change – The employer shall discuss with the employees likely to be affected and the unions to which they belong, what effects the proposed change is likely to have on the employees and any alternative proposals. The employer shall give prompt consideration to matters raised by the employees and their unions in relation to the proposed change. These discussions shall commence as early as practicable.
  4. The employer shall provide all relevant information to the employees and the union to which they belong.
  5. The employer may reconsider the original proposed workplace change.
  6. Competitive tendering – Where employees who are adversely affected by the proposed changes request the employer’s assistance to submit an in-house bid and the employer refuses that request, the employer shall provide the reasons in writing.

(iv) Decision and Implementation Stage

  1. Employer’s duty to notify a definite decision that has significant effects – Subject to the exceptions identified at subclause (v) of this clause, where the employer has made a definite decision to introduce major workplace change that has significant effects on employees, the employer shall provide notice in writing and transmitted electronically (where available), to the employees who will be affected by the change and the unions to which they belong at least seven (7) days before a definite decision is implemented.
  2. The purpose of the Decision and Implementation Stage is for the employer to discuss with affected employees and the unions to which they belong, measures to minimise or mitigate the adverse effects of the definite decision. At this Stage the employer is not bound to give any further consideration to matters raised by the employees and their unions in relation to the proposed workplace change.
  3. Notice of a definite decision under subclause (iv)(a) shall include (where applicable):
    1. the nature of the definite change;
    2. the reasons for the definite change;
    3. the positions to be affected;
    4. in the case of termination of employment:
      • The number and category of employees whose employment is to be terminated; and
      • The period over which the terminations are likely to be carried out;
    5. such other information as is reasonable in the circumstances.
  4. Employer’s duty to discuss – The employer shall discuss with the employees affected and the unions to which they belong, measures to avert or mitigate any adverse effects of the change on employees and shall give prompt consideration to matters raised by employees and their unions.
  5. The discussions shall take place as soon as practicable after the employer has made a definite decision and shall cover measures to avoid or minimise any adverse effects on the employees. Measures to mitigate adverse effects on employees may include, consideration of re-training opportunities; redeployment (including redeployment into positions occupied by casual and labour hire staff); recruitment advice; the payment of relocation allowances; provision of additional notice; access to an employee assistance program; financial advice and such other assistance as may be reasonably available.
  6. Implementation – Subject to subclause (v) of this clause, the employer shall not implement a definite decision to introduce major workplace change that has significant effects on employees until the obligations under subclauses (iv)(a) and (iv)(d) of this clause have been met.

(v) Exceptional circumstances

  1. Notwithstanding the provisions of subclauses (iii) and (iv) of this clause, workplace change may be implemented in accordance with the timelines in column B that relate to the circumstances set out in column A in the table below.
  2. For the purpose of this subclause Exceptional Circumstances refers to workplace change that is the result of something that is unexpected and beyond the employer’s control that results in a significant loss of funding for positions or no useful work for employees in the foreseeable future.
  3. For the purpose of this subclause Written Notice means notification that is in writing and transmitted electronically (where available) to the employees affected by the change and the unions to which they belong. The Written Notice shall include (where applicable):
    1. the nature of the definite change;
    2. the reasons for the definite change;
    3. the positions to be affected;
    4. in the case of termination of employment:
      • The number and category of employees whose employment is to be terminated; and
      • The period over which the terminations are likely to be carried out;
    5. such other information as is reasonable in the circumstances.

Table