Local government employees to be covered by state industrial system
Why have we made these changes?
When will Queensland council employees transfer to the state system?
How will Queensland council employees transfer to the state system?
What are the indicia (indicators) of corporations and how are they being changed?
How will the amendments to the Industrial Relations Act affect council employees?
What about WorkChoices?
Under the new Local Government and Industrial Relations Amendment Act 2008, local government employees will be covered by the state industrial system, giving more stability and flexibility to councils across the state.
The Local Government and Industrial Relations Amendment Act 2008 does three important things:
- protects employees' existing rights and entitlements and ensures that there is no inadvertent loss of conditions
- converts the federal industrial instruments that applied to local government to state industrial instruments
- allows unions to 'follow their members' back into the state system.
Why have we made these changes?
The WorkChoices regime introduced by the former federal Government covers all employees of "constitutional corporations" which includes trading corporations. It is not clear which local governments are trading corporations. This situation has lead to inconsistency and uncertainty around council employees working conditions, awards and entitlements.
The federal Workplace Relations Act (non-Queensland Government link) will not be amended to allow local government to be covered by the state system until possibly as late as 1 January 2010.
Changes to the Industrial Relations Act 1999 (PDF, 1.9 MB) will ensure council employees are covered by the state industrial relations system before the local government merge on 15 March 2008 (council elections).
When will Queensland council employees transfer to the state system?
The critical date for local government employees to be in the state system is 15 March 2008 when some local governments merge.
If local government employees are in the state system before the mergers, the law that applies to the transfer of their employment and of their entitlements is much clearer – it will be state laws that apply. The new Act commences on 13 March 2008 and the employees will be covered by the state industrial system from that date.
How will Queensland council employees transfer to the state system?
The employees will be covered by the state system if the federal system no longer applies to them. The way to do this is ensure that local governments are not corporations. The Act amends the Local Government Act 1993 to take away some of the indicia (indicators) of a corporation.
What are the indicia (indicators) of corporations and how are they being changed?
The word 'corporation' is not defined for the purposes of the 'corporations power' in the Commonwealth Constitution.
The courts have held that an entity is most likely a corporation if it has:
- identity separate from its members
- the power to sue or be sued in its own name
- perpetual succession (the corporation continues forever until it is wound up)
- a common seal
- the power to hold property
- the power to make rules for its internal governance
The Act deletes the section in the Local Government Act that states that a local government is a body corporate with perpetual succession and a common seal. The Act makes explicit provision for this to ensure that legal proceedings can still be taken by and against local governments. The Act replaces the common seal with explicit provisions about signing documents and continues the ability of local governments to hold property.
Finally, the Act explicitly provides that the change in legal status of local governments has no effect on the local government's existence, continuance, assets, rights, liabilities or anything else.
How will the amendments to the Industrial Relations Act affect council employees?
The state laws include provisions of the Industrial Relations Act and Codes of Practice and Regulations made under the Local Government Act which:
- preserve an employee's continuity of service when they transfer – this means service with the old employer counts as service with the new employer for the purpose of accruing benefits like long service and annual leave
- protect all their accrued entitlements (e.g. sick leave balances and annual leave balances) which they take with them
- protect their on-going rights to receive the same wages and other benefits they had with the old employer.
These state laws have the combined effect of preventing a transferred employee getting a redundancy benefit on technical grounds or a pay out of accrued leave entitlements when some local governments merge on 15 March 2008, even though their job is not terminated. The employee will not be disadvantaged because all of the employee's entitlements are transferred with them.
What about WorkChoices?
The amendments to the Queensland Industrial Relations Act convert the federal WorkChoices industrial instruments to state instruments in ways that reverse many of the negative impacts of WorkChoices on awards and agreements.
Provisions in awards and agreement that were made ineffective by WorkChoices (e.g. prohibited matters such as union encouragement or trade union training leave) are made effective again.
Where necessary, the model dispute settlement clause developed by the Queensland Industrial Relations Commission (QIRC) is inserted into the substitute State agreements.
The QIRC clause replaces the WorkChoices approach to dispute resolution which was designed to minimise the role of unions and the independent industrial relations commission in dispute resolution.
Last updated 22 July 2009
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