Legal Insights

Local Government tidbits – all you need to know before Christmas

By Lindy Richardson, Ross Jackson, Catherine Dunlop

• 17 February 2020 • 7 min read

With Christmas almost upon us, we have wrapped up some important employment-related developments for you to be aware of when heading into 2020.

The Local Government Bill 2019 (Vic) was introduced to the Victorian Legislative Council on 28 November 2019.

Our overview of its key reforms can be found here.

The Bill aims to overhaul the current Local Government Act 1989. Its changes fall under five themes: improved service delivery, councillor conduct, community confidence, strengthened local democracy, and a new relationship with the State Government. Importantly, reforms are proposed that will see much of the current Act’s regulation of senior officer employment removed.

The Bill may be passed in its current form or could be referred to a Parliamentary Committee for further scrutiny.

Maddocks will continue to monitor the Bill closely and run training sessions in 2020 to enable our clients to understand the staged commencement of the Bill and its implications for them.

Gender equality legislation

The State Government has introduced Australian-first gender equity laws that will apply to workplaces in the public service, local governments, universities and TAFEs, and organisations such as Victoria Police, Court Services Victoria and the Office of the Public Prosecutions. In total more than 300 organisations, and 380,000 employees, will be covered by the legislation.

The Gender Equality Bill 2019 will require local government (and other organisations covered) to:

  • publicly report their progress on key ‘workplace gender equality’ indicators such as equal pay, sexual harassment and career progression practices; and
  • implement Gender Equality Action Plans and undertake gender impact assessments.

The Bill also establishes a new Commissioner – the Public Sector Gender Equality Commissioner – to oversee and promote the new laws.

We will be tracking the progress of the Bill closely in 2020. Click here to view Minister for Women Gabrielle Williams’ press release.

Victoria’s industrial manslaughter Bill

Victorian Parliament has passed legislation establishing new offences of industrial manslaughter. The maximum penalties for these offences are huge, with up to $16.5 million fines for bodies corporate and up to 20 years’ imprisonment for individuals.

The laws will commence on a day to be proclaimed or on 1 July 2020 at the latest.

The legislation also aims to make sure that organisations maintain a culture of compliance with their OHS duties by way of work practices and procedures, policies and unwritten rules.

The Workplace Safety Legislation Amendment (Workplace Manslaughter and Other Matters) Bill 2019 introduces the new offences to the Occupational Health and Safety Act 2004. The offences will apply to employers and their ‘officers’, which includes individuals at the highest level of the organisation or who make decisions affecting its business or financial standing. To be found liable, an employer or officer must have:

  • engaged in negligent conduct;
  • that breaches an OHS duty owed to another person (including workers and members of the public);
  • causing the death of that person (including by serious injury or illness).

Senior officers of an organisation can be found separately liable in addition to an organisation. However, the offence will not apply to employees who are not ‘officers’.

To prepare for the legislation, councils should review all safety systems, policies and plans. They should review all potential workplace hazards, including mental health risks. More importantly, councils should work towards building a culture of safety in which employees at all levels understand, implement and speak up about all OHS matters.

Click here to view the Premier of Victoria’s press release.

Coalition announcement on changes to enterprise bargaining

The Morrison Government will consider making changes to the enterprise bargaining system in 2020.

Speaking at a Business Council dinner on 20 November 2019, Prime Minister Scott Morrison indicated that IR Minister Christian Porter will issue discussion papers next year to review the current system’s operation. The review will look into any ‘administrative clutter’ that may be hindering business improvements, ways of streamlining the national award system, and methods of making enterprise bargaining faster and simpler.

However, the Prime Minister emphasised that the business community needs to ‘marshal the evidence and make the case for change’.

Stay tuned for further updates in this space.

Oversight by IBAC, the Victorian Ombudsman, and VAGO

The Victorian Auditor-General’s Office (VAGO) in late November released two reports relevant to local government:

Report on sexual harassment in the Victorian Public Service

VAGO examined whether the eight departments of the Victorian public service provide workplaces that are free from sexual harassment, and whether they effectively prevent, report and respond to sexual harassment.

The report found that, across the Victoria public service, 1 in 14 respondents to the audit had experienced sexual harassment in the last 12 months, with no department free from sexual harassment and each able to ‘do more’.

The full report can be found here.

Results of the 2018-2019 local government financial and performance audits.

The full report (with interactive dashboard) can be found here.

The report is comprehensive, but at a high level found that:

  • Victorian councils generally continue to be financially sound
  • Combustible cladding, waste and recycling, and corporate governance failures are the key sector-wide developments of concern
  • Procurement processes, and asset management and valuation processes, are also sector-wide issues

Local Government Procurement Initiative

The Fair Work Ombudsman has recently started spruiking a ‘Local Government Procurement Initiative’ (Procurement Initiative), following its June 2018 Inquiry into the procurement of security services by local governments (report available here).

The Procurement Initiative appears to be voluntary at this stage, providing ‘best practice’ resources for use by local councils but allowing councils to decide whether or not to use those resources. The resources include a ‘Questionnaire for potential contractors – template’ and sample clauses for use in council contracts.

While the Procurement Initiative clearly seeks to encourage councils to improve procurement processes, councils should consider whether or not the resources provided are necessary and appropriate to use within their existing procurement frameworks.

Changes to the Protected Disclosure Act from 1 January 2020

Changes to Victoria’s public interest disclosure (PID) scheme will commence on 1 January 2020, impacting local councils and other public sector bodies. The updated scheme is intended to better facilitate confidential disclosures, and the investigation of improper conduct, in relation to public sector bodies and public officers.

The legislated changes will require local councils to update their policies and procedures in relation to PIDs.

The new legislative arrangements aim to:

  • improve access for those making PIDs, including by providing a lower threshold for making PIDs to IBAC);
  • improve flexibility for agencies investigating PIDs and PICs (public interest complaints), including by providing a ‘no wrong door’ principle for handling ‘misdirected’ PIDs made to a receiving agency.

A new Integrity and Oversight Committee has also been established as part of the new legislation, consolidating oversight of various Victorian integrity agencies, including IBAC.

An information sheet outlining the key changes is here.

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We will be covering these issues throughout our dedicated local government forums during 2020. Forum dates will be communicated early in the new year.

Looking to discuss employment related developments?

Contact the Employment & Workplace team.

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