Posted on December 20, 2023 by Megan Hawley and Samantha Hainke

Protection for Councils’ Domestic and Waste Management Services Employees

On 15 December 2023, the Local Government (General) Regulation 2021 (LG Reg) was amended by the Local Government (General) Amendment (Tendering) Regulation (No 2) 2023 (Amending Regulation) to protect the employment of workers who provide domestic and waste management services contracts. The amendments require employees to be offered continued employment as part of any new tender for the services.

The new requirements will apply to services which are currently provided in-house by council employees and which a council proposes to outsource.

A new provision has been inserted into the LG Reg to define domestic or other waste management services as the storage, treatment, processing, collecting, removal, disposal, destruction, sorting or recycling of domestic waste and other waste.

Tender Proposal Documents 

Tender proposal documents issued by councils for domestic or other waste management services contracts must now include details of the individual employees who currently provide the service, and the terms on which the individuals are employed, unless the council cannot reasonably obtain access to that information: s170(1)(e) and s170(3) of the LG Reg. 

The provision of that information must protect the privacy of the individuals by removing identifying information or aggregating data from multiple individuals: s170(2) of the LG Reg. 

Tender Submission

The key part of the reforms is s173 of the LG Reg, which now provides that if the tender proposal document for domestic or other waste management services includes the information required by s170(1)(e), a tender submission must contain an undertaking that the tenderer will ensure that employees (either of the council or the current waste contractor) will be offered continued employment to continue to provide the service: s173 of the LG Reg.

The undertaking must ensure that if the tenderer is successful, then any employees who accept the offer of continued employment:

  • must be employed on at least the same terms as that person’s current employment; and    
  • will be taken to be a continuation of the individual’s current employment with no loss of entitlements.

The undertaking must also include that the tenderer will pay the annual increase in the individual’s base rate pay in accordance with either the applicable industrial instrument or the Local Government (State) Award: s173(b)(iii) of the LG Reg. 

Section 177 and 178 of the LG Reg have been amended such that councils cannot accept tender submissions for a proposed contract for domestic or other waste management services without the undertaking under s173, except where: 

  • the council has consulted with each relevant registered organisation (which include organisations under the Fair Work (Registered Organisations) Act 2009 (Cth) and industrial organisations of employees under the Industrial Relations Act 1996 (NSW); and
  • each registered organisation is satisfied that appropriate industrial arrangements will be in place to ensure compliance with the undertaking during the life of the contract. 

Councils may take available actions to enforce the undertaking of the tenderer under s173(7), and individuals who are the subject of the undertaking may also take action to enforce the undertaking as if the undertaking were a contract between the tenderer and the individual: s173(6) of the LG Reg. 

The amendments will apply to any new tenders.

The Amending Regulation can be found here

The Circular to Councils on the Amending Regulation issued by the Office of Local Government can be found here . 

If you have any questions in relation to this article, please leave a comment below or contact Megan Hawley on 02 8235 9703.

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