Introduction

Described as the most comprehensive reform to local government in Victoria for 30 years, the Local Government Bill 2019 was passed by the Victorian Parliament on 17 March 2020 and has become law in the form of the Local Government Act 2020 (LG Act 2020).

The LG Act 2020 will replace the current Local Government Act 1989 (LG Act 1989), which was described in Parliament as ‘outdated, incoherent and enmeshed in prescriptive detail.'[1]

When will the LG Act 2020 be implemented?

The LG Act 2020 came into operation on 25 March 2020, but the commencement of a range of provisions is staggered across various dates from 6 April 2020 onwards.[2] This approach is intended to ensure councils have sufficient time to understand and comply with the new statutory requirements, and for supporting resources such as guidelines to be developed.

Until specific provisions of the new LG Act 2020 commence, councils are to continue to comply with the LG Act 1989. Where the LG Act 2020 requires a council to develop a new policy or plan, councils will, as a general rule, have six months after the commencement date to comply with that statutory obligation.

What changes will the LG Act 2020 introduce?

From an employment perspective, key changes can be found in Part 2, Division 7 of the LG Act 2020, and can be summarised as follows:

What has been repealed?

Senior Officer provisions

Importantly, the category and regulation of 'senior officers', a feature of the LG Act 1989 since the early 1990s, will cease to exist once the employment provisions of the LG Act 2020 come into operation on 1 July 2021.[9]

Senior officer contracts entered into before 1 July 2021 will remain in full force and effect under ordinary principles of statutory interpretation and contract law until their termination or expiry, but councils will need to start thinking about how they wish to employ their most senior staff after 1 July 2021. For example, will councils wish to attract candidates by moving to ongoing permanent employment? Or is the capacity to go to market at regular intervals more attractive? How will the policies referred to above engage with this issue? Does your enterprise agreement restrict your council from engaging temporary/maximum term employees?

And what about enterprise agreements that contain provisions or carve-outs affecting a category of employee that no longer exists after 1 July 2021? This issue will of course vary from council to council depending on the wording of the enterprise agreement.

Complaints

Sections 103 to 110 of the LG Act 1989, dealing with complaints against the CEO and the appointment of a probity auditor, were repealed on 6 April 2020.[10] Interestingly, there are no provisions in the LG Act 2020 that replace these obligations, although councils may choose to make similar provision in their Complaints Policies (to be adopted under s 107 of the LGA 2020) and Regulations may also be made in this regard in due course.

Confidentiality of personnel matters

Under s 89(2)(a) of the LG Act 1989, a council or special committee was able to resolve that a meeting be closed to members of the public if the meeting was discussing ‘personnel matters’. Section 89 was repealed on 1 May 2020[11] and no equivalent head of ‘confidential information’ is included in the LG Act 2020. Councils will therefore need to consider the manner in which personnel matters are reported under the new confidentiality regime.

Under the LG Act 2020, from 24 October 2020, a member of council staff, a councillor, or a member of a delegated committee who intentionally or recklessly discloses confidential information will commit an offence be liable to pay a significant penalty of 120 penalty units (approximately $19,800).^[12] There are limited exceptions to this, such as where the council determines that the information should be publicly available. Importantly, this offence does not currently apply to members of council staff.

[1] Second Reading Speech, 28 November 2019 per Gavin Jennings, p 4497.

[2] Victorian Government Gazette, No. S 148 Tuesday 24 March 2020.

[3] LG Act 2020, s 45.

[4] LG Act 2020, s 46(4)(a).

[5] LG Act 2020, s 48(2).

[6] LG Act 2020, s 49.

[7] LG Act 2020, s 52.

[8] LG Act 2020, ss 48(4) and (5)

[9] LG Act 2020, s 362(1).

[10] LG Act 2020, s 359 (f).

[11] LG Act 2020, s 360(b)

[12] LG Act 2020, s 125.