Monday, 15 March 2021

Changes to the Local Government Act 2020 for Senior Officers and introduction of the Gender Equality Act 2020: What local government and public sector employers need to know

Changes to the Local Government Act and Employment of Senior Officers

On 24 March 2020 the new Local Government Act 2020 (Vic) (2020 LG Act) received royal assent, and is intended to wholly replace the provisions of the Local Government Act 1989 (Vic) (1989 LG Act).

From April 2020, the 2020 LG Act has been implemented in stages, with the final stage taking effect from 1 July 2021. Certain provisions of the 1989 LG Act, including those relating to the employment of Senior Officers, will continue to apply until that date.

Senior Officer Provisions under 1989 LG Act and 2020 LG Act

A Senior Officer is defined by section 3 of the 1989 LG Act as:

  1. the Chief Executive Officer;
  2. a member of Council Staff who has management responsibilities and reports directly to the Chief Executive Officer;
  3. any other member of Council staff whose total remuneration exceeds the threshold set by the relevant minster (currently $151,000).

Sections 94AB, 94B and 95A of the 1989 LG Act provide for specific restrictions in respect to the appointment of Senior Officers by local government, including that they may only be appointed after the position has been publicly advertised, their contracts must specify performance criteria for the purpose of reviews of the Senior Officer’s performance and the date on which it expires, which must be a date that is not more than five years after the date on which it commences.

On the expiry of a Senior Officer’s contract, the Senior Officer may be invited to enter into a new contract and any contract which does not comply with the requirements under the 1989 LG Act is void.

However, the 2020 LG Act repealed the relevant sections in respect to Senior Officers under the 1989 LG Act, effective on 1 July 2021.

The 2020 LG Act does not contain any specific provisions in respect to the employment of Senior Officers by local government. This means that from 1 July 2021 the terms, conditions and processes of employing new Senior Officers will be at the complete discretion of each individual employer in the local government industry.

For existing Senior Officers, their employment will generally continue according to the terms of their current employment contracts and will not otherwise be impacted by the repeal of the 1989 LG Act. However, it may be the case that some provisions of their current employment contracts may no longer be relevant or enforceable if they specifically refer to, or are contingent upon, the 1989 LG Act.

As outlined above, under the 1989 LG Act, the date of expiry for employment contracts for Senior Officers must be not more than five years on the date on which it commences. However, Senior Officers can be invited to enter into a new contract at the cessation of the maximum term, which has resulted in an industry-wide practice of successive maximum term appointments of Senior Officers.

Once the implementation of the 2020 LG Act is complete on 1 July 2021, there will no longer be a maximum or minimum time period for engaging a former Senior Officer. Employers will need to consider this on a case-by-case basis. Particularly, employers will need to consider whether a permanent appointment may be more beneficial than successive maximum term contracts.

How can local government employers approach this in the most strategic way?

Firstly, we recommend that employers review and consider the employment contracts of their Senior Officers to determine:

  1. the length of time remaining until expiry of the contracts and any relevant notice period should their employment be terminated prior to the expiry of the contract;
  2. whether there are any terms within the contracts that may be impacted or void due to the repeal of the 1989 LG Act; and
  3. whether the employer wishes to employ these individuals beyond the expiry of their current employment contract.

From there, local government employers can then determine whether they wish to continue to employ their Senior Officers after the expiry of their current contract, or consider other options such as revised employment contracts and updated terms and conditions.

We can assist local government employers in determining the most appropriate and strategic way to manage the transition to the 2020 LG Act from an employment law perspective.

Gender Equality Act 2020

The Gender Equality Act 2020 (the GE Act) will take effect 31 March 2021 and will apply to certain organisations that have 50 or more employees, including the public sector, universities and local councils (described as ‘defined entities’). Once it commences, the Act requires defined entities to take positive action to achieve gender equality within their organisation. It also aims to benefit the wider community by eliminating systematic causes of gender inequality in policy, programs and service delivery.

What are defined entities’ obligations?

Under the Act, defined entities will be required to:

  1. Conduct a workplace gender audit every four years beginning in 2021. The defined entity is to have regard to:
    1. the state and nature of gender inequality within the organisation’s workplace;
    2. the workplace gender equality indicators;
    3. any targets or quotes prescribed in relation to the defined entity; and
    4. the disadvantages or discrimination that a person may experience on the basis of certain factors including age, disability, ethnicity and sexual orientation.
  2. Develop and implement a Gender Equality Action Plan (GEAP)
    1. A defined entity must prepare, submit and publish a GEAP every four years, beginning 31 October 2021.
    2. results of a workplace gender audit; and
    3. strategies for achieving workplace gender equality.
  3. Publicly report on their progress in relation to workplace gender equality.
  4. Promote gender equality in policies, programs and services that impact the public.
  5. Complete gender impact assessments.

The Act will also establish a Public Sector Gender Equality Commissioner, who will support defined entities to comply with the Act, provide advice and education programs, and assist in resolving disputes in the workplace relating to systematic gender equality issues.

Every second year after a defined entity has submitted its GEAP, it must submit a progress report to the Commissioner, which must:

  1. state the progress of the measures and strategies set out in the GEAP;
  2. demonstrate progress with respect to certain defined indicators; and
  3. for any gender impact assessment undertaken, outline how a particular policy, program or service was developed or varied.

What steps should employers take?  

Defined entities should ensure that their organisation already has, or is in the process of, developing a GEAP. There is guidance available on the Victoria State Government website, which sets out what is required to be included in the GEAP and provides additional recommended steps that an organisation can follow to ensure that the GEAP is clear, actionable and based on data and meaningful consultation.

Please contact our firm if you wish to discuss any aspect of this article or require assistance in implementing any of our recommendations.

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This article was produced by HR Legal. It is intended to provide general information only in summary format on legal issues. It does not constitute legal advice, and should not be relied on as such.

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