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This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Local Government Amendment
(Employment Protection) Bill 2003
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Local Government Act 1993 No 30 2
Schedule 1 Amendments 3
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE COUNCIL,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Parliaments
Legislative Council
2003
New South Wales
Local Government Amendment
(Employment Protection) Bill 2003
Act No , 2003
An Act to amend the Local Government Act 1993 to provide employment
protection for certain staff members transferred from the employment of one
council to another council due to the constitution, amalgamation or alteration of
council areas; and for other purposes.
Clause 1 Local Government Amendment (Employment Protection) Bill 2003
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Local Government Amendment (Employment
Protection) Act 2003.
2 Commencement
This Act commences on a day or days to be appointed by
proclamation.
3 Amendment of Local Government Act 1993 No 30
The Local Government Act 1993 is amended as set out in
Schedule 1.
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Local Government Amendment (Employment Protection) Bill 2003
Amendments Schedule 1
Schedule 1 Amendments
(Section 3)
[1] Section 213 Facilitating provisions of proclamations
Insert after section 213 (1):
Note. If a proclamation for the purposes of this Division transfers staff
members (other than senior staff) from the employment of one council to
another council, the provisions of Part 6 of Chapter 11 apply in relation
to the transferred staff members.
[2] Section 218C Facilitating provisions of proclamations
Insert after section 218C (2):
Note. If a proclamation for the purposes of this Division transfers staff
members (other than senior staff) from the employment of one council to
another council, the provisions of Part 6 of Chapter 11 apply in relation
to the transferred staff members.
[3] Section 354A
Insert after section 354:
354A Ministerial approval for certain termination payments to senior
staff
(1) A council must not make a payment to the general manager or
other senior staff member of the council in relation to his or
her termination of employment (including termination on the
ground of redundancy) without first obtaining the Minister's
approval to the payment.
(2) The Minister may refuse to approve a payment under
subsection (1) if the Minister is not satisfied the payment is
appropriate.
(3) A payment referred to in subsection (1) that is made without
the Minister's approval:
(a) is to be repaid to the council, and
(b) is a debt due to the council recoverable by the council
or the Minister in any court of competent jurisdiction.
(4) Subsection (1) does not apply to payments of a kind exempted
from this section by the regulations.
(5) To remove doubt, this section extends to:
(a) a termination payment made under a contract and to an
ex gratia termination payment, and
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Local Government Amendment (Employment Protection) Bill 2003
Schedule 1 Amendments
(b) a termination payment made under a contract entered
into before the commencement of this section.
[4] Chapter 11, Part 6
Insert after Part 5 of Chapter 11:
Part 6 Arrangements for council staff affected
by the constitution, amalgamation or
alteration of council areas
354B Definitions
(1) In this Part:
former council, in relation to a transferred staff member,
means the council that employed the staff member
immediately before the transfer day.
new council, in relation to a transferred staff member, means
the council into whose employment the staff member was
transferred on the transfer day.
proposal means:
(a) a proposal made under section 215 to constitute one or
more areas, or
(b) a proposal made under section 218E to amalgamate one
or more areas, or
(c) a proposal made under section 218E to alter the
boundaries of one of more areas.
proposal period means (subject to subsection (2)) the period:
(a) starting on the day the proposal is made, and
(b) ending on the following day:
(i) if the Minister decides not to proceed with the
proposal--the day that decision is made under
section 215 or 218E,
(ii) if the Minister refers the proposal to the
Boundaries Commission or the Director-General
but decides to decline to recommend to the
Governor that the proposal be implemented--the
day that decision is made,
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Local Government Amendment (Employment Protection) Bill 2003
Amendments Schedule 1
(iii) if the Minister recommends to the Governor that
the proposal be implemented--immediately
before the date specified in the proclamation
implementing the proposal.
transfer day, in relation to a transferred staff member, means
the day on which the staff member was transferred, by a
proclamation made for the purposes of Division 1 or 2A of
Part 1 of Chapter 9, from the employment of one council to
another council.
transferred staff member means a member of the staff of a
council who is transferred to the employment of another
council:
(a) by a proclamation for the purposes of Division 1 of Part
1 of Chapter 9 that constitutes one or more areas, or
(b) by a proclamation for the purposes of Division 2A of
Part 1 of Chapter 9 that:
(i) amalgamates one or more areas, or
(ii) alters the boundaries of one or more areas.
(2) The Minister may, by notice in writing to a council, extend the
proposal period in relation to that council by determining an
earlier date for the start of the period than the date the
proposal is made under section 215 or 218E.
354C No forced redundancy of affected staff members during
proposal period
The employment of a member of staff of a council that is
affected by a proposal (other than of a senior staff member)
must not be terminated, without the staff member's
agreement, during the proposal period on the ground of
redundancy.
354D Preservation of entitlements of transferred staff members
(1) A transferred staff member's employment (other than that of
a senior staff member) continues on the same terms and
conditions as the terms and conditions that applied to the staff
member immediately before the transfer day, subject to
section 354E.
(2) Subsection (1) applies until other provision is duly made
under any Act or law.
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Local Government Amendment (Employment Protection) Bill 2003
Schedule 1 Amendments
(3) Neither the contract of employment nor the period of
employment of a transferred staff member is taken to have
been broken by the transfer for the purposes of any law, award
or agreement relating to the employment of that staff member.
(4) A transferred staff member is not entitled to receive any
payment or other benefit merely because the staff member
ceases to be a staff member of the former council.
(5) The transfer of a transferred staff member does not affect any
accrued rights the staff member had immediately before the
transfer, including in relation to recreation leave, sick leave,
long service leave and superannuation, but does not entitle the
staff member to claim dual benefits of the same kind for the
same period of service.
354E Certain increases or decreases in staff entitlements during
proposal period not binding on new council without approval
(1) This section applies to a determination of the terms and
conditions of employment of staff members of a council that
is made during the proposal period, and extends to any such
determination made in an industrial agreement with or on
behalf of the staff members, in an employment contract with
a staff member or in an employment policy of the council.
(2) After the transfer day:
(a) the new council is not bound by any such
determination, and
(b) any such determination is to be disregarded for the
purposes of section 354D (1),
unless the determination has been approved by the Minister
under this section or the approval of the Minister is not
required under this section.
(3) If an application is made to the Minister for approval of a
determination to which this section applies, the Minister may
refuse to approve the determination only if the Minister is
satisfied that the determination arises from or is in
anticipation of the proposal and would result in an
unjustifiable increase or decrease in the obligations of the new
council in relation to transferred staff members.
(4) A determination to which this section applies is not required
to be approved by the Minister if:
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Local Government Amendment (Employment Protection) Bill 2003
Amendments Schedule 1
(a) it complies with the requirements of regulations made
for the purposes of this section, or
(b) the Minister determines in writing that approval is not
required.
354F No forced redundancy of transferred non-senior staff
members for 3 years after transfer
A transferred staff member's employment with the new
council (other than a senior staff member) must not be
terminated, without the staff member's agreement, within 3
years after the transfer day on the ground of redundancy
arising from the transfer of the staff member's employment.
354G Lateral transfer of non-senior staff members
(1) This section applies if:
(a) a council employs transferred staff members, and
(b) within 12 months after the transfer day, the general
manager proposes to make an appointment to a position
within the organisational structure of the council, other
than a senior staff position, and
(c) a transferred staff member (other than a senior staff
member) was, immediately before the transfer day,
performing substantially the same duties for the staff
member's former council as are required to be
performed in the position to be filled.
(2) The council:
(a) must notify its staff members of the position and give its
staff members a reasonable opportunity to apply for the
position, and
(b) must not externally advertise the position.
(3) A person who:
(a) applies for appointment to a position referred to in this
section, and
(b) is employed by the council at the time of making the
application, and
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Local Government Amendment (Employment Protection) Bill 2003
Schedule 1 Amendments
(c) is a person referred to in subsection (1) (c),
must be considered for appointment to the position in
preference to any other applicant for the position who is not
such a person.
(4) If there is more than one person referred to in subsection (3)
who is eligible for appointment to a position, the applicant
who has the greatest merit, determined in accordance with
section 349 (2) and (3), is to be selected.
(5) Subject to subsection (4), sections 348 and 349 do not apply
to an appointment to a position referred to in this section and
the Council may not decide, under section 350 (b), that those
sections apply to the appointment.
354H External advertising not required in certain circumstances
(1) This section applies if:
(a) a council employs transferred staff members, and
(b) within 12 months after the transfer day, the general
manager proposes to make an appointment to a position
within the organisational structure of the council, other
than a senior staff position, and
(c) the general manager is satisfied that one or more of the
transferred staff members (other than a senior staff
member) are suitably qualified for the position,
but does not apply if the Minister is satisfied that the transfer
of staff resulted from an alteration of the boundaries of the
council's area and did not result in the transfer to the council
of a significant number of staff.
(2) The council:
(a) must notify its staff members of the position and give its
staff members a reasonable opportunity to apply for the
position, and
(b) must not externally advertise the position.
(3) Section 348 does not apply to an appointment to a position
referred to in this section.
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Local Government Amendment (Employment Protection) Bill 2003
Amendments Schedule 1
[5] Schedule 8 Savings, transitional and other provisions consequent
on the enactment of other Acts
Insert at the end of clause 1 (1):
Local Government Amendment (Employment Protection)
Act 2003
Page 9
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