Supplementary Agenda of General Meeting - Wednesday, 10 April 2024

Mayoral Minute No. MM1/24

Date of Meeting: 10/04/2024

9 AMENDMENTS TO WASTE TENDERING REQUIREMENTS UNDER THE LOCAL GOVERNMENT REGULATION

In December 2023 the NSW Government amended the Local Government (General) Regulation 2021 to introduce a range of new requirements on councils designed to provide stronger employment protections for waste management workers when council waste contracts are put out to tender. It is noteworthy that these amendments were developed in the absence of any local government or waste industry consultation process to ensure that the changes were workable.

The key provisions include requirements that:

· Tender proposal documents for domestic or other waste management services must include details of the individual employees who currently provide the service and the terms on which they are employed unless the council cannot reasonably obtain that information.

· Tenderers must include an undertaking that the tenderer will ensure that current employees (whether of the council or the current contractor) will be offered employment to continue to provide the service, and for anyone who accepts the offer of employment:

o The employment will be on at least the same terms as the individuals current employments, and

o The employment will be taken to be a continuation of the individuals current employment with no loss of entitlements, and

o The tenderer will pay an annual increase in the individuals base rate pay in accordance with the applicable industrial instrument or the Local Government (State) Award if there is no applicable instrument.

· Tender submissions cannot be considered by a council unless they contain the required undertaking.

· Councils must not accept a tender submission for a proposed domestic or other waste management service unless the council has consulted with each relevant union and the unions are satisfied that appropriate industrial arrangements will be in place to ensure compliance with the undertaking during the life of the contract.

· Terms and conditions contained in Domestic or other Waste Management services contracts that councils enter into with a successful tenderer, must reflect the undertaking given by the tenderer.

The practicality of these requirements is questionable and advice obtained by Local Government NSW from Arthur Moses SC has highlighted many problems with the amended Regulations (Attachment 1). Senior Counsel’s opinion is that “the amended Regulations are ambiguous, unworkable and apt to produce adverse consequences for councils, tenderers, employees, ratepayers, and the general public…”

As highlighted in the legal opinion (summarised at paragraph 45), taken together the amended Regulations:

(a) are internally inconsistent and poorly drafted;

(b) undermine relationships between incumbents and their employees;

(c) affect a far broader range of services and service providers than may have been intended;

(d) are unworkable in their application to service providers and employees who provide services to multiple clients;

(e) substantially advantage incumbents and reduce competition in the market for waste services, with flow on adverse cost and service quality consequences for councils, their ratepayers and the broader community; and

(f) provide unions with a broad and unreviewable veto power in respect of waste management arrangements, preventing or protecting tender processes with flow on adverse competition, cost and service quality consequences.

Having regard to the above, LGNSW has raised its concerns with the NSW Government and is seeking the support of councils across NSW in amplifying this advocacy.

Accordingly, I seek Councils support to:

1. Make representations to the NSW Government expressing concerns about the likely detrimental impact of the amendments on NSW Councils, and

2. Call on the NSW Government to reconsider the amendments as a matter of urgency and to engage in proper consultation with all relevant stakeholders on an appropriate way forward.

RECOMMENDATION

THAT Council writes to the Minister for Industrial Relations (NSW), Minister for Local Government (NSW), and local Members of Parliament (NSW):

1. Expressing serious concerns about recent amendments to the Local Government (General) Regulation 2021 made by the Local Government (General) Amendment (Tendering) Regulation (No 2) 2023 (NSW) on 15 December 2023, as highlighted in a legal opinion by Arthur Moses (Senior Council) dated 26 February 2024, and

2. Calling on the NSW Government to reconsider the amendments as a matter of urgency and to engage in proper consultation with all relevant stakeholders on an appropriate way forward.

The Honourable Cr PHILIP RUDDOCK

Mayor

Attachments:

1.⇩

Arthur Moses (Senior Counsel) Opinion on Waste Regulations

File Reference: F2004/08805

Document Number: D08853142