Peak Services Legal and Workforce Practice Manager Nikki Holden
One of the many benefits LGAQ membership offers councils is free access to the LGAQ IR (Industrial Relations) Helpdesk enquiry line, operated by Peak Services, which is staffed five days a week during and after work hours.
The Helpdesk provides prompt responses to often complex workforce issues involving the modern awards, certified agreements, employment contracts, employment standards and the operation of the Industrial Relations Act 2016.
This invaluable service receives, on average, 70 to 80 queries per month on employment and IR issues from councils seeking expert advice about high level human resources and industrial relations issues.
Each week, our experts tackle unique problems and offer solutions on a broad range of matters that ensure councils can move forward quickly and decisively in their daily operations.
A look into a typical week for our IR Helpdesk team offers a fascinating cross-section of the diversity of the issues Queensland’s councils of all sizes and their HR specialists frequently encounter. These are genuine queries received across a week by the Helpdesk—why not see if your answers line up with those of our IR experts?
On Monday, Melody received an enquiry about the portability of leave when an employee transfers from one council to another. Council questioned whether a current employee transferring to another Queensland council would mean the outgoing council was obligated to transfer the value of employee’s long service and personal leave to the new council.
Melody referred the council to section 284(3) of the Local Government Regulation 2012 (Regs), and to the continuity of service provision in section 132(1)(a) of the Industrial Relations Act 2016 (Act) for the purpose of personal leave and advised the council that it had to transfer the long service leave to the new council and pay the value of the long service leave to the new council.
She also advised the council that the employee’s personal leave balance will transfer to the new council but that there did not appear to be an obligation under the Act for the outgoing council to make payment of the balance of the personal leave to the new council.
On Tuesday, Brian had an enquiry from a council about a show cause process for a disciplinary matter, where an employee’s husband gave his written response to the show cause letter on behalf of his wife.
Brian advised the council it should write to the employee once again, requesting her written response to the show cause by a particular date, following which council would make its final decision on the show cause. Brian advised the council that it should do this to ensure that it provides the employee with procedural fairness.
On Wednesday, Natalie had an enquiry from a council about whether employees accrue Rostered Days Off (RDOs) on a public holiday that they have not worked. As an example, employee is contracted to do 7.25 hours per day but on a normal day works eight hours to accrue 0.75 hours per day. The council wanted to know that if an employee is rostered to work 10 days a fortnight but one of those days is a public holiday, does the employee accrue 0.75 on the public holiday?
Natalie referred to the Industrial Relations Act 2016 and advised the council that, in accordance with that Act, the employee should be paid public holiday at roster time for the day, at base rates with the effect that the employee accrues 0.75 hours towards their RDO on the public holiday.
On Thursday, Belinda had an enquiry from a council as to whether it would rely on a medical certificate issued by a naturopath. Belinda referred the council to the Industrial Relations Act 2016, under which a doctor’s certificate means a certificate signed by a person registered under the Health Practitioner Regulation National Law to practise in the medical profession, other than as a student.
After referring to the Health Practitioner Regulation National Law (Queensland), which defines health professions, Belinda advised the council that a naturopath is not listed as a health profession and that council should therefore not rely on a medical certificate issued by a naturopath.
On Friday, Andrew had an enquiry from a council about an employee’s entitlement to half pay for long service leave/annual leave with the following scenarios:
- Stream B employee requests leave at half pay during the “shut down” period over Christmas and may or may not have enough leave to cover the period.
- Stream B team mutually agrees to have extra time off in the Easter break over and above the public holidays, request leave at half pay to cover the period and may or may not have enough leave to cover the period.
- Stream B employee requests leave without pay even though they have enough leave entitlements to cover the leave.
Andrew noted that none of the relevant industrial instruments, including the Industrial Relations Act 2016, the Award or relevant Certified Agreement provided the ability for an employee to take annual leave or long service leave at half pay and that the taking of half pay for annual leave or long service leave was at the discretion of the employer.
Andrew advised that such matters were ordinarily outlined in the employer’s leave policy and suggested council implement a policy dealing with such requests (if it hasn’t already done so) to ensure there’s consistency in approvals.
In essence, if an employee has the requisite leave accrued, they should take the leave at full pay. In circumstances where an employee does not have the requisite annual leave accrued and is required to take extended leave due to a personal or family issue or other special circumstances, then this may be an example when half pay is granted for both annual leave and long service leave.
Regarding the scenarios, he advised:
- If the employee does not have enough leave over shutdown, then it may be acircumstance when half pay is granted and, more specifically, for a new starter who may not have been employed long enough with the council to accrue the requisite leave for shutdown.
- He did not believe this circumstance should entitle an employee to half pay.
- If the employee has sufficient leave, then it should be taken at full pay, except in circumstances as outlined above.
The following Monday, Melody had another enquiry about the basis of calculating the payment of wages to a supervisor under Stream A Award, required to work 36.25 hours a week, supervising employees under Stream B Award, required to work 38 hours a week, and whether the supervisor gets paid overtime.
Melody advised the council:
- The LGAQ’s position is that Stream A, Div. 2 Section 1 clause 15.1(e) provides that Council can determine that Stream A supervisors’ ordinary hours will be the same as the ordinary hours of the workers they employ. On this basis, no overtime is payable where the Stream A supervisors would ordinarily work a 36.25-hour week but instead work a 38-hour week because they supervise employees whose ordinary hours are 38 hours per week.
- The LGAQ is aware that some councils have historically paid the gap as overtime. The council advised it has paid the gap as overtime and this is an issue that is currently coming up for discussion in their Enterprise Bargaining (EB) negotiations.
- Advised that for the purpose of paying overtime, the hourly rate should be calculated by dividing the weekly wage by 36.25 or the fortnightly wage by 72.5 hours. To calculate the ordinary hourly rate, the calculation should be weekly wages divided by 38 hours.
The LGAQ is committed to providing its members with services that enable them to meet their financial goals as well as their responsibilities under the Local Government Act 2009. The LGAQ encourages its members to take full advantage of this complementary service, as it is up-to-date, informative and provides a useful independent sounding board for staff to talk through workforce issues and determine the most appropriate course of action.
Call the LGAQ IR Helpdesk on 1300 542 700 for more information and assistance from your friendly IR experts.
Please note: This article is not a comprehensive record, nor is it legal advice.