Chapter 11 How are councils staffed?
Introduction. The Chapter provides for the employment of staff to assist councils to exercise their functions. A council should have sufficient and appropriately qualified staff for the efficient and effective management of its organisation.The Chapter includes provision for the appointment by each council of a general manager and other senior staff and of a “public officer”. Some requirements concerning employment of staff are contained in other law (for example, industrial relations legislation).
332 Determination of structure
(1) A council must determine:• an organisation structure• those positions within the organisation structure that are senior staff positions• the resources to be allocated towards the employment of staff.(2) A council may not determine a position to be a senior staff position unless:(a) the responsibilities, skills and accountabilities of the position are generally equivalent to those applicable to the Executive Band of the Local Government (State) Award, and(b) the total remuneration package payable with respect to the position is equal to or greater than the minimum remuneration package (within the meaning of Part 3A of the Statutory and Other Offices Remuneration Act 1975) payable with respect to senior executive office holders whose positions are graded Level 1 (General Management).(3) For the purposes of subsection (2) (b), the total remuneration package payable with respect to a position within a council’s organisation structure includes:(a) the total value of the salary component of the package, and(b) the total amount payable by the council by way of the employer’s contribution to any superannuation scheme to which the holder of the position may be a contributor, and(c) the total value of any non-cash benefits for which the holder of the position may elect under the package, and(d) the total amount payable by the council by way of fringe benefits tax for any such non-cash benefits.
333 Re-determination of structure
The organisation structure may be re-determined by the council from time to time. It must be re-determined within 12 months after any ordinary election of the council.
Part 2 The general manager and other senior staff
334 Appointment of general manager
(1) A council must appoint a person to be its general manager. The person must not be a body corporate.(2) The position of general manager is a senior staff position.
335 Functions of general manager
(1) The general manager is generally responsible for the efficient and effective operation of the council’s organisation and for ensuring the implementation, without undue delay, of decisions of the council.(2) The general manager has the following particular functions:• the day-to-day management of the council• to exercise such of the functions of the council as are delegated by the council to the general manager• to appoint staff in accordance with an organisation structure and resources approved by the council• to direct and dismiss staff• to implement the council’s equal employment opportunity management plan.(3) The general manager has such other functions as may be conferred or imposed on the general manager by or under this or any other Act.
336 Filling of vacancy in position of general manager
(1) If a vacancy occurs in the position of general manager, the council must immediately appoint a person under section 334 to the vacant position or appoint a person to act in the vacant position.(2) A vacancy occurs in the position of general manager if the general manager:(a) dies, or(b) completes the term of his or her contract and is not re-appointed, or(c) resigns from the position, or(d) becomes a mentally incapacitated person and is removed from the position by the council because of that mental incapacity, or(e) is sentenced to imprisonment, or(f) is removed from the position for breach of or under the terms of the general manager’s contract with the council.(3) A person may be removed from office under subsection (2) (d) only if, taking into account the person’s past training, qualifications and experience relevant to employment as a general manager, the person’s performance as an employee, and all other relevant factors that it is reasonable to take into account, the person because of his or her mental incapacity:(a) would be unable to carry out the inherent requirements of the position of general manager, or(b) would, in order to carry out those requirements, require services or facilities that are not required by persons who are not mentally incapacitated persons and the provision of which would impose an unjustifiable hardship (within the meaning of the Disability Discrimination Act 1992 of the Commonwealth) on the council.
337 Council to be consulted as to appointment and dismissal of senior staff
The general manager may appoint or dismiss senior staff only after consultation with the council.
338 Nature of contracts for senior staff
(1) The general manager and other senior staff of a council are to be employed under contracts that are performance-based.(2) The term of a contract must not be less than 12 months or more than 5 years (including any option for renewal). A term that is less than 12 months is taken to be for 12 months and a term for more than 5 years is taken to be limited to 5 years.(3) Contracts may be renewed from time to time.(4) The Director-General may, by order in writing, approve one or more standard forms of contract for the employment of the general manager or other senior staff of a council.(5) A standard form of contract approved by the Director-General is not to include provisions relating to the level of remuneration or salary (including employment benefits) of the general manager or other senior staff of a council, performance-based requirements or the duration of the contract.(6) A council is not to employ a person to a position to which one or more standard forms of contract approved for the time being under this section applies or apply except under such a standard form of contract.(7) The council may include in an employment contract for the general manager or another member of the senior staff additional provisions to those contained in the standard form of contract but only if those provisions relate to any of the following:(a) the level of remuneration or salary (including employment benefits) of the person employed under the contract,(b) subject to subsections (1) and (2), performance-based requirements or the duration of the contract.(8) Despite subsection (6), the approval, amendment or substitution of a standard form of contract under this section does not affect any employment contract between a council and the general manager of the council or another member of the senior staff of the council if the employment contract was entered into before the approval, amendment or substitution of the standard form of contract.(9) However, subsection (6) does apply to the renewal of any such employment contract occurring after the standard form of contract is approved, amended or substituted and to all new contracts entered into after the standard form of contract is approved, amended or substituted.
339 Annual reporting of contracts for senior staff
The general manager must, at least once annually, report to the council on the contractual conditions of senior staff.
340 Industrial arbitration excluded
(1) In this section, a reference to the employment of the general manager or another senior staff member is a reference to:(a) the appointment of, or failure to appoint, a person to the vacant position of general manager or to another vacant senior staff position, or(b) the removal, retirement, termination of employment or other cessation of office of the general manager or another senior staff member, or(c) the remuneration or conditions of employment of the general manager or another senior staff member.(2) The employment of the general manager or another senior staff member, or any matter, question or dispute relating to any such employment, is not an industrial matter for the purposes of the Industrial Relations Act 1996.(3) Subsection (2) applies whether or not any person has been appointed to the vacant position of general manager or another vacant senior staff position.(4) No award, agreement, contract determination or order made or taken to have been made or continued in force under the Industrial Relations Act 1996, whether made before or after the commencement of this section, has effect in relation to the employment of senior staff members.(5) No proceedings for an order in the nature of prohibition, certiorari or mandamus or for a declaration or injunction or for any other relief, lie in respect of the appointment of or failure to appoint a person to the position of general manager or to another senior staff position, the entitlement or non-entitlement of a person to be so appointed or the validity or invalidity of any such appointment.
(1) If a person who is a senior staff member becomes bankrupt or makes a composition, arrangement or assignment for the benefit of the person’s creditors, the person must:(a) immediately give notice of the bankruptcy, composition, arrangement or assignment to the general manager, and(b) provide the general manager, within the time specified by the general manager, with any further information concerning the cause of the bankruptcy or of the making of the composition, arrangement or assignment required by the general manager.(2) If the person is the general manager, subsection (1) applies as if references to the general manager were references to the council.
342 Appointment of the public officer
(1) The general manager is to designate a member of staff as the public officer of the council.(2) The position of public officer may, but need not be, a senior staff position.
343 Functions of the public officer
(1) The public officer:• may deal with requests from the public concerning the council’s affairs• has the responsibility of assisting people to gain access to public documents of the council• may receive submissions made to the council• may accept service of documents on behalf of the council• may represent the council in any legal or other proceedings• has such other functions as may be conferred or imposed on the public officer by the general manager or by or under this Act.(2) The public officer is subject to the direction of the general manager.
Part 4 Equal employment opportunity
(1) The objects of this Part are:(a) to eliminate and ensure the absence of discrimination in employment on the grounds of race, sex, marital status and disability in councils, and(b) to promote equal employment opportunity for women, members of racial minorities and persons with disabilities in councils.(2) In this section, disability has the same meaning as in the Disability Discrimination Act 1992 of the Commonwealth.Note. The Disability Discrimination Act 1992 of the Commonwealth defines disability to include such things as loss of bodily or mental function, loss of a part of the body, malfunction, malformation or disfigurement of a part of the body and certain other conditions, disorders, illnesses and diseases. That Act makes it unlawful for an employer to discriminate against a person on the ground of the other person’s disability in certain contexts. These include in determining who should be offered employment (section 15 of that Act). Such discrimination is unlawful unless the person, because of his or her disability, would be unable to carry out the inherent requirements of the particular employment or would, in order to carry out those requirements, require services or facilities that are not required by persons without the disability and the provision of which would impose an unjustifiable hardship on the employer.
345 Preparation and implementation of EEO management plans
(1) A council must prepare and implement an equal employment opportunity management plan in order to achieve the objects of this Part.(2) The plan is to include provisions relating to:(a) the devising of policies and programs by which the objects of this Part are to be achieved, and(b) the communication of those policies and programs to persons within the staff of the council, and(c) the collection and recording of appropriate information, and(d) the review of personnel practices within the council (including recruitment techniques, selection criteria, training and staff development programs, promotion and transfer policies and patterns, and conditions of service) with a view to the identification of any discriminatory practices, and(e) the setting of goals or targets, where these may reasonably be determined, against which the success of the plan in achieving the objects of this Part may be assessed, and(f) the means, other than those referred to in paragraph (e), of evaluating the policies and programs referred to in paragraph (a), and(g) the revision and amendment of the plan, and(h) the appointment of persons within the council to implement the provisions referred to in paragraphs (a)–(g).(3) An equal employment opportunity management plan may include provisions, other than those referred to in subsection (2), that are not inconsistent with the objects of this Part.(4) A council may, from time to time, amend its equal employment opportunity management plan.
346 Inconsistencies with the Anti-Discrimination Act 1977
(1) The provisions of an equal employment opportunity management plan, to the extent of any inconsistency between those provisions and the provisions of the Anti-Discrimination Act 1977, prevail.(2) This section does not apply to or in respect of the provisions of a plan which are the subject of a reference under section 347 to the Anti-Discrimination Board or the Director of Equal Opportunity in Public Employment.Note. This section adopts the principles in section 122K of the Anti-Discrimination Act 1977. Those principles are designed to ensure that full effect can be given to the objects of this Part.
(1) Where the Minister is dissatisfied with any matter relating to the preparation, amendment or implementation of an equal employment opportunity management plan by a council or any failure or omission of a council with respect to the preparation, amendment or implementation of any such plan, the Minister may refer the matter to the Anti-Discrimination Board or the Director of Equal Opportunity in Public Employment.(2) The provisions of section 122N of the Anti-Discrimination Act 1977, and the succeeding provisions of Part 9A of that Act, apply to and in respect of a reference under this section to the Anti-Discrimination Board as if it were a reference under section 122M of that Act and as if the council were an authority within the meaning of that Part.
Part 5 Other provisions concerning staff
348 Advertising of staff positions
(1) When it is proposed to make an appointment to a position within the organisation structure of the council, the position must be advertised in a manner sufficient to enable suitably qualified persons to apply for the position.(2) If the position is a senior staff position, the requirement of this section is satisfied if the position is advertised at least twice in a daily newspaper circulating throughout the State.(3) This section does not apply to:(a) the re-appointment, under a new contract, of a senior staff member, or(b) the appointment of an employee if the term of employment is for:(i) not more than 12 months, or(ii) two or more periods that together are not more than 12 months in any period of 2 years.
349 Appointments to be on merit
(1) When the decision is being made to appoint a person to a position:(a) only a person who has applied for appointment to the position may be selected, and(b) from among the applicants eligible for appointment, the applicant who has the greatest merit is to be selected.(2) The merit of the persons eligible for appointment to a position is to be determined according to:(a) the nature of the duties of the position, and(b) the abilities, qualifications, experience and standard of work performance of those persons relevant to those duties.(3) In determining the merit of a person eligible for appointment to a position, regard is to be had to the objects of Part 4 of this Chapter (see section 344).
350 Appointments to which secs 348 and 349 do not apply
Sections 348 and 349 do not apply to:(a) an appointment by way of demotion, or(b) an appointment by way of lateral transfer, unless the council decides that those sections are to apply to the appointment.
(1) If a position (including a senior staff position) within the organisation structure of the council is vacant or the holder of such a position is suspended from duty, sick or absent:(a) the council, in the case of the general manager’s position, or(b) the general manager, in the case of any other position,may appoint a person to the position temporarily.(2) A person who is appointed to a position temporarily may not continue in that position:(a) if the holder of the position is on parental leave—for a period of more than 24 months, or(b) in any other case—for a period of more than 12 months.
352 Independence of staff for certain purposes
(1) A member of staff of a council is not subject to direction by the council or by a councillor as to the content of any advice or recommendation made by the member.(2) This section does not prevent the council or the mayor from directing the general manager of the council to provide advice or a recommendation.
(1) The general manager must not engage, for remuneration, in private employment or contract work outside the service of the council without the approval of the council.(2) A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member’s council duties unless he or she has notified the general manager in writing of the employment or work.(3) The general manager may prohibit a member of staff from engaging, for remuneration, in private employment or contract work outside the service of the council that relates to the business of the council or that might conflict with the member’s council duties.(4) A member of staff must not engage, for remuneration, in private employment or contract work outside the service of the council if prohibited from doing so under subsection (3).
354 Restriction on appointment of a former mayor or councillor
(1) A person who has held civic office in relation to a council must not be appointed to any paid position on the staff of the council within 6 months after ceasing to hold the office.(2) A purported appointment in contravention of this section is void.
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(b) a termination payment made under a contract entered into before the commencement of this section.
Part 6 Arrangements for council staff affected by the constitution, amalgamation or alteration of council areas
(1) In this Part:boundary alteration means an alteration of the boundaries of one or more areas by or under a proclamation under Chapter 9.
existing staff member of a transferee council means, in relation to a staff transfer occurring in connection with a boundary alteration, a person who was a member of the staff of the transferee council immediately before the transfer day and who has not ceased to be a member of that staff.
Note. In the case of a staff transfer effected in connection with the amalgamation of areas under Chapter 9, no members of staff continue in the employment of the councils of the areas being amalgamated because all those areas are dissolved. The members of staff would become employees of the newly constituted council.former council, in relation to a transferred staff member, means the council that employed the staff member immediately before 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,(iii) if the Minister recommends to the Governor that the proposal be implemented—immediately before the date specified in the proclamation implementing the proposal.remaining staff member of a transferor council means, in relation to a staff transfer occurring in connection with a boundary alteration, a person who was a member of the staff of the transferor council immediately before the transfer day and who has not ceased to be a member of that staff.
Note. In the case of a staff transfer effected in connection with the amalgamation of areas under Chapter 9, no members of staff continue in the employment of the councils of the areas being amalgamated because all those areas are dissolved. The members of staff would become employees of the newly constituted council.rural centre means a centre of population of 5,000 people or fewer, and includes a geographical area that is prescribed, or is of a kind prescribed, by regulations in force for the purposes of this definition as being a rural centre.
staff transfer means a transfer of staff from the employment of one council to the employment of another council by or under a proclamation under Chapter 9.
transfer day, in relation to a staff transfer, means the day on which the staff concerned were transferred from the employment of one council to the employment of another council.
transferee council, in relation to a staff transfer, means the council into whose employment the staff concerned were transferred on the transfer day.
transferor council, in relation to a staff transfer, means the council from whose employment the staff concerned were transferred on the transfer day.
transferred staff member means a member of the staff of a council who is transferred to the employment of another council by or under a proclamation under Chapter 9.
work base means the office, depot or other place of work at or from which any staff work.
(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 staff members
(1) If a staff transfer occurs, the employment of:(a) a transferred staff member, and(b) in the case of a boundary alteration:other than a senior staff member, continues on the same terms and conditions that applied to the staff member immediately before the transfer day, subject to section 354E.(i) a remaining staff member of the transferor council, and(ii) an existing staff member of the transferee council,(2) Subsection (1) applies until other provision is duly made under any Act or law.(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 transferee 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 transferee 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 transferee 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:(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 non-senior staff members for 3 years after transfer
If a staff transfer occurs, the employment of:(a) a transferred staff member, and(b) in the case of a boundary alteration: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 staff transfer.(i) a remaining staff member of the transferor council, and(ii) an existing staff member of the transferee council,
354G Lateral transfer of non-senior staff members
(1) This section applies if either:(a) the following subparagraphs apply:(i) a staff transfer occurs in connection with the constitution of a new area, whether as a result of the amalgamation of two or more areas or otherwise, and(ii) within 3 years after the transfer day, the general manager proposes to make an appointment to a position within the organisational structure of the council (the council), other than a senior staff position, and(iii) 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, or(b) the following subparagraphs apply:(i) a staff transfer occurs in connection with a boundary alteration, and(ii) within 3 years after the transfer day, the general manager of a council (the council) affected by the boundary alteration proposes to make an appointment to a position within the organisational structure of the council, other than a senior staff position, and(iii) a staff member (other than a senior staff member) of the council was, immediately before the transfer day, performing substantially the same duties for either or any of the affected councils 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(c) is a person referred to in subsection (1) (a) (iii) or (b) (iii), as the case requires,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 either:(a) the following subparagraphs apply:(i) a staff transfer occurs in connection with the constitution of a new area, whether as a result of the amalgamation of two or more areas or otherwise, and(ii) within 3 years after the transfer day, the general manager proposes to make an appointment to a position within the organisational structure of the council (the council), other than a senior staff position, and(iii) 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, and(iv) section 354G does not apply with respect to the position, or(b) the following subparagraphs apply:(i) a staff transfer occurs in connection with a boundary alteration, and(ii) within 3 years after the transfer day, the general manager of a council (the council) affected by the boundary alteration proposes to make an appointment to a position within the organisational structure of the council, other than a senior staff position, and(iii) the general manager is satisfied that one or more of the staff members (other than a senior staff member) of the council who were, immediately before the transfer day, members of the staff of either or any of the affected councils are suitably qualified for the position, and(iv) section 354G does not apply with respect to the position.(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.
354I Limitations on transfer of work base of non-senior staff
(1) This section applies, where a staff transfer occurs, to:(a) a transferred staff member, and(b) in the case of a boundary alteration:other than a senior staff member.(i) a remaining staff member of the transferor council, and(ii) an existing staff member of the transferee council,(2) The staff member must not be required by the council employing the staff member to be based within 3 years after the transfer day at a work base located:(a) in a case where the staff member is a transferred staff member—outside the boundaries of the area of his or her former council as they existed immediately before the transfer day, or(b) in a case where the staff member is a remaining staff member of the transferor council—outside the boundaries of the area of the transferor council as they existed immediately before the transfer day, or(c) in a case where the staff member is an existing staff member of the transferee council—outside the boundaries of the area of the transferee council as they existed immediately before the transfer day,unless the staff member gives his or her written consent to the change of work base or such a requirement would not cause the staff member to suffer unreasonable hardship because of the distance required to travel to the proposed work base.