Boroondara City Council v Australian Municipal, Administrative, Clerical and Services Union
[2022] FWC 998
•3 MAY 2022
| [2022] FWC 998 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.739—Dispute resolution
Boroondara City Council
v
Australian Municipal, Administrative, Clerical and Services Union
(C2022/2003)
Australian Municipal, Administrative, Clerical and Services Union
v
Boroondara City Council
(C2022/2320)
| DEPUTY PRESIDENT GOSTENCNIK | MELBOURNE, 3 MAY 2022 |
Alleged dispute about any matters arising under the enterprise agreement and the NES;[s186(6)]
Introduction and background
This decision concerns two applications made respectively by Boroondara City Council (the Council) and the Australian Municipal, Administrative, Clerical and Services Union (ASU) pursuant to s 739 of the Fair Work Act 2009 (Act) for the Commission to deal with a dispute in accordance with the dispute settlement term in clause 6 of the Boroondara City Council Enterprise Agreement 2021 (Agreement).
In short compass, the Council currently provides in-home services to aged care residents in its catchment area under the Commonwealth’s Home Support Programme. Following recommendations made by the Royal Commission into Aged Care Quality and Safety, the Commonwealth’s Home Support Programme is to cease and will be replaced by the Support at Home Program. The Council says it does not have the internal capacity to provide the expanded range of services to be delivered under the Support at Home Program nor do its staff possess the expertise or skillset to deliver the Support at Home Program services to people with high care need. The Council has proposed to exit from the provision of some services funded by Commonwealth’s Home Support Programme but to continue providing services that are not Commonwealth’s Home Support Programme or Support at Home Program funded. If this proposal proceeds, the Council will have several excess staff who are currently delivering services under the Commonwealth’s Home Support Programme. Consequently, there will be a need for the termination of the employment of some staff on redundancy grounds and/or the redeployment of some staff.
The dispute arises because it is contended by the ASU that the Council has not complied with its obligation under clause 4 of the Agreement to consult staff about major workplace change.
To resolve the dispute by arbitration, the parties have, by consent, proposed that I answer the following questions:
1. Has the Council provided all the relevant information about the proposed changes that has been sought by the Australian Services Union in correspondence leading to this dispute, or has been identified in its submissions and evidence filed in this dispute, in accordance with clause 4.2(c) of the Agreement?
2. Pursuant to clause 4 of the Agreement, is the Council obliged to provide any response received from an affected employee, or their representative, to the Council’s Councillors?
3. In light of the answers to Questions 1 and 2 above, has the Council failed to comply with clause 4.2(b), by denying affected employees and their representative, a ‘reasonable opportunity’ to respond to the proposed changes prior to a definite decision being made by Council?
Most of the background factual matters are not in dispute and the witnesses who prepared statements filed in the proceeding were not required for cross examination.
The Council provides in-home aged care services to eligible Boroondara residents aged 65 and over. These services include transport, personal care, respite care, domestic assistance, food preparation, home maintenance and modifications, and social support. The services are delivered to approximately 2,103 residents and the Council currently employs 52 operational staff to deliver these services, and 18 office-based support staff.[1]
Since 2016 community aged care services have been provided through the Commonwealth’s Home Support Programme. Whereas previously local governments were the sole provider of in-home aged care services in Victoria, since the commencement of the Commonwealth’s Home Support Programme, private and not-for-profit agencies also received funding to provide these services. The introduction of private providers had the result that demand for Council provided services has reduced. The Council has, over the past 5 years, experienced a decline in demand of in excess of 40% of the aged care services offered by Council.[2]
As earlier noted, in March 2021 the Royal Commission into Aged Care Quality and Safety recommended, inter alia, that a new aged care program which combines the existing Commonwealth Home Support Programme, Home Care Packages Program, and Residential Aged Care Program, including Respite Care and Short-Term Restorative Care be introduced; that block funding to the Commonwealth’s Home Support Programme providers cease; and that an individualised funding model be introduced. That new model is the Support at Home Program, which entails the provision of a significantly expanded range of services, including providing services to clients with high care needs who are not currently supported under the Commonwealth Home Support Programme.[3]
Given these developments, the Council gave consideration to whether it should cease providing aspects of its Commonwealth Home Support Programme services to residents. It did so because the Council considers that it does not have the capacity nor the expertise and skill base to provide an expanded range of services to be delivered under the Support at Home Program. The Council also maintains that its ongoing subsidy to provide Commonwealth Home Support Programme services is anti-competitive and likely to be in breach of the National Competition Policy.[4]
In the second half of 2021, the Council approached the Australian Government to better understand the process of relinquishing the Commonwealth Home Support Programme services. In the result, the Council understood that relinquishing the Commonwealth Home Support Programme services was subject to Australian Government approval, and conditional on the Australian Government selecting a proposed alternative transitional provider. The Australian Government also advised the Council that it should undertake several steps to enable the commencement of the selection process. At a meeting of the Council on 29 November 2021, the Council resolved to obtain feedback from Commonwealth Home Support Programme service clients and affected employees in January 2022 on a proposed staged transition of the Commonwealth Home Support Programme services to an alternative provider, should the Australian Government nominate a provider and to present any feedback to a meeting of the Council in early 2022.[5]
In February 2022, the Australian Government advised the Council that it was prepared to allow Council to cease the Commonwealth Home Support Programme services at the expiry of the service agreement and that it nominated mecwacare, a not-for-profit organisation, as the preferred alternative provider of the services.[6]
Following the Australian Government’s advice noted above, the Council proposed to cease delivering several of the Commonwealth Home Support Programme services. The services it proposes no longer to deliver from 30 June 2022 are personal care, respite care, domestic assistance (including escorted shopping), food preparation, and home maintenance and modifications. Under its proposal the Council would continue to deliver several services not affected by the changes to the funding model under the Support at Home Program and which involve the provision of social support, community transport, and other active ageing services providing connection with the community and which aim to reduce social isolation and improve health and wellbeing.[7] The proposal is said to directly impact 61 staff, and indirectly affect six staff.[8] The proposed cessation of service would occur on a staged basis with the affected services provided to clients within Kew and Balwyn to cease on 30 May 2022 and those provided to clients within Camberwell, Hawthorn, Ashburton and Canterbury to cease on 27 June 2022.[9] The main rationale underpinning the proposal is earlier set out,[10] but there are other reasons. One is that an increase in the number of home care packages and service providers resulting from changes to the aged care system has led to a decline in the number of persons choosing to access aged care service through the Council.[11]
At a meeting of Council on 11 April 2022, the Council resolved on an in-principal basis to transition the in-home Commonwealth Home Support Programme services of domestic assistance, personal care, respite care, meal preparation, property maintenance and property modifications, by 30 June 2022 to the Australian Government’s nominated provider, mecwacare; to work with it and the Australian Government to ensure the smooth transition of the Council’s current in-home Commonwealth Home Support Programme services clients by 30 June 2022; and to support any client not wishing to transition to mecwacare to transition to an alternative provider by 30 June 2022.[12]
That consultation about the proposal began on or about 22 February 2022 and the steps that have thus far been taken by the Council to consult are not in dispute. On 22 February 2022, the Council held small group meetings through Microsoft Teams with affected employees,[13] during which employees were notified about the nature of the proposed changes and afterwards they were notified in writing.[14] On 23 February 2022, the Council conducted a department-wide briefing about the proposed changes at which the ASU representatives attended as observers.[15]
After representations were made for the ASU to conduct a paid meeting with affected employees, the ASU met with those employees to discuss the proposed changes on 3 March 2022.[16]
As is evident from the questions posed by the parties the issue in dispute is whether further or additional steps are required to be taken in order that Council meets its obligations under clause 4 of the Agreement. Central to the dispute is the adequacy of information provided by the Council to affected employees and the ASU during the consultation process and the communication of any responses to the proposed changes given by the affected employees and the ASU to Councillors before any final decision is made. The parties have variously engaged in communications and have exchanged correspondence about these issues, which for present purposes need not be reproduced in detail.[17] It is sufficient to observe that between 7 March 2022 and 24 March 2022, the ASU requested, and the Council declined, to provide various forms of information said to be relevant information about the proposed changes.
Following a conference before me on 4 April 2022 to deal with the dispute resolution application made by the Council, representatives of the ASU met with representatives of the Council on 5 April 2022. During that meeting the ASU representatives were provided, in confidence, an oral summary of the information that would be provided to Councillors before the Council voted on the proposed changes on 11 April 2022.[18] During the meeting Ms Emma Bagg, an ASU Organiser asked whether any response to the proposed changes that the ASU prepared, would be provided to the Councillors as part of the report/briefing the Councillors receive before 11 April 2022. Mr Nicholas Lund, the Council’s Manager - Liveable Communities said that “we decide what is relevant information that goes to the Councillors” or words to that effect and did not commit to providing any response prepared by the ASU or affected employees to the Councillors.[19]
The ASU says it and the affected employees are entitled pursuant to clause 4.2(c) of the Agreement to the information described below:
1. Information relating to the proposed changes to the Aged Care Services provided to Councillors for the purposes of the meeting of Boroondara City Council (the Council) on 29 November 2021.
2. Information provided to the Australian Government by the Council in connection with the Aged Care Services and/or the proposed changes to the Council’s the Aged Care Services in or around December 2021.
3. Any information provided to clients of the Aged Care Services in relation to the proposed changes.
4. Any information, including surveys, scripts and instructions, used by the Council to communicate to clients about the proposed changes.
5. Information contained in Attachment 1 to the Aged Services Reform officer report provided to Councillors for the purposes of the Council meeting on 11 April 2022.
6. Any performance reporting documentation providing information on the standards of performance achieved by the Council in the provision of their Aged Care Services.
7. Any comparative modelling or benchmarking Council has produced, or commissioned, in relation to the provision of Aged Care Services as compared to other local governments and non-government providers of equivalent aged care services.
8. In relation to the Aged Care Services:
(a) Actual financial results for the past 5 years showing the total income/ cost of the service and including:
· Quantity of services delivered
· Total cost of output and services analysed by cost category
· Analysis of revenue by source (funding and user fees)
(b) Client numbers for the previous 5 years and projected client numbers for future 5 years.
(c) Itemised costs for the provision of the Aged Care Services for the previous 5 years.
(d) Projected costs for the continued provision of the Aged Care Services by Council.
(e) Details of any strategic business plan for the Aged Care Services showing analysis of the future demand for services and the mix of services to be provided.
(f) Details of the funding model that would operate in respect of any continued provision of the Aged Care Services, including the extent to which the program would need to be subsidised by taxpayer income.
9. Any external consultancy report obtained by the Council relating to the Aged Care Services and/or the proposed changes.
10. Any existing skills-based assessment or evaluation of the Council’s capacity to continue providing the Aged Care Services.
11. Any business or strategic review undertaken for the Aged Care Services over the last 5 years including the analysis of alternative service delivery models (use of contractors compared to direct provision for example).
12. Any cost/benefit analysis or financial viability modelling undertaken in relation to the proposed changes and any alternatives to the proposed changes.
13. Itemised cost to Council of proceeding with the proposed changes including the cost of all redundancies and costs relating to client transition.
14. Savings expected as a result of implementing the proposed changes.
Consideration
Proper construction of clause 4
Before turning to the questions posed by the parties it is necessary to say something about the proper construction of the various obligations imposed by clause 4 of the Agreement which is reproduced below.
4. Consultation regarding major workplace change
4.1 Council to notify
(a) Where a responsible manager of the Council is proposing major changes in production, program, organisation, structure or technology that are likely to have significant effects on employees, the Council must notify the employees who may be affected by the proposed changes and their nominated union, legal or other representatives, if any, prior to a definite decision being made.
(b) Significant effects include termination of employment; major changes in the composition, operation or size of the Council’s workforce or in the skills required; the elimination or diminution of job opportunities, promotion opportunities or job tenure; the alteration of hours of work; the need for retraining or transfer of employees to other work or locations; and the restructuring of jobs. Provided that where this agreement makes provision for alteration of any of these matters an alteration is deemed not to have significant effect.
4.2 Council to discuss change
(a) The Council must discuss with the employees affected and their representatives, if any, the introduction of the changes referred to in clause 4.1(a), the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees and must give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes.
(b) The discussions must commence, and employees must have a reasonable opportunity to respond, prior to any definite decision being made by the Council to make the changes referred to in clause 4.1(b).
(c) For the purposes of such discussion, the Council must provide in writing to the employees concerned and their representatives, if any, all relevant information about the changes including the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees provided that the Council is not required to disclose confidential information if the disclosure of which would be contrary to the Council’s interests.
The construction of provisions of an enterprise agreement begins with a consideration of the ordinary meaning of the words, read in context, taking account of the evident purpose of the provisions or expressions being construed. Context may be found in the provisions of the agreement taken as a whole, or in their arrangement and place in the agreement. The statutory framework under which the agreement is made or in which it operates may also provide context, as might an antecedent instrument or instruments from which a particular provision or provisions might have been derived. The industrial context in which an agreement is made and operates is also relevant. Thus, the language of an agreement is to be understood in the light of its industrial context and purpose, not in a vacuum or divorced from industrial realities. But context is not itself an end and a consideration of the language contained in the text of the agreement being considered remains the starting point and the end point to the task of construction. A purposive approach to interpretation is appropriate, not a narrow or pedantic approach.[20]
Broadly speaking, clause 4 of the Agreement imposes four obligations on the Council related to consultation. The first is to notify affected employees and their representatives of any proposed major change in production, program, organisation, structure or technology that are likely to have significant effects on employees.
There is no dispute about the following matters: that the proposal under consideration is a proposed major change within clause 4.1(a); that the proposal is likely to have significant effects within clause 4.1(b) on the affected employees; that the affected employees and the ASU were notified of the proposal by the Council; and that the notification was given prior to a definite decision being made.
The second obligation is to conduct discussions with affected employees and their representatives before a final decision about the changes is made, about the implementation of the proposed changes, the likely effects on the affected employees the changes will have and measures to avert or mitigate the adverse effects of the changes.
The third is to give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes and to allow employees a reasonable opportunity to respond before a definite decision is made by the Council to make the changes.
The fourth, for the purposes of the discussions, is to provide in writing to the affected employees and their representatives all relevant information about the changes, save for such information that is caught by the confidential information exception.
Dealing first with the fourth obligation – to provide in writing to affected employees and their representatives “all relevant information about the changes”. It seems accepted, and I agree, that the obligation to provide all relevant “information” does not require the provision of relevant documents. On its proper construction, clause 4(c) does not impose upon the Council an obligation to provide copies of all documents relating to the proposed changes. The obligation to provide all relevant information about the changes is not an exercise of discovery of relevant documents that occurs in a litigation. The obligation is narrower and requires the provision of relevant information in writing as distinct from orally about the proposed changes.[21]
However, to properly understand the information that is relevant and therefore which must be provided, it is necessary first to appreciate the purpose for which the information is to be provided and the evident purpose of the right the employees be consulted, through notification and subsequent discussions, about proposed changes found in clause 4. After notification, consultation under clause 4 occurs in discussions between the Council and the affected employees and their representatives. During the discussions, the affected employees and their representatives may raise matters in relation to the proposed changes and the Council is required to give prompt consideration to those matters. As is evident from the text of clause 4, the notification obligation is engaged at proposal stage as distinct from after a definite decision to introduce a change has been made. And the discussions are to occur before any final decision is made. The relevant information, as clause 4.2(c) makes clear, is to be provided “for the purpose of such discussion”. The requirement to provide all relevant information is therefore aimed at aiding and informing the discussions required by clause 4.2(a).
Putting to one side the confidential information exception in clause 4.2(c), the relevant information that must be provided includes information about the nature of the changes proposed, the expected effects of the changes on employees and any other matters likely to affect employees. The Council contends that notwithstanding the reference to “including”, which precedes a description of relevant information subject matters in clause 4.2(c), properly construed the list of matters enumerated is exhaustive. This is because the last of the matters is a catch all which requires the provision of information about “any other matters likely to affect employees”.
This contention is rejected. The last of the enumerated matters is not a general catch all provision but is confined in scope and subject matter to information about matters “likely to affect employees”. As is evident from clause 4.2(a), the matters for discussions about the changes are not confined to discussions about the effect of the changes on employees and adverse effects mitigation measures – as though the introduction of the changes were a fait accompli – but includes discussions about the introduction of the changes. Given that the discussions are required once the changes are proposed and before a decision to implement the changes is made, this must necessarily include an opportunity for employees and their representatives through the discussions to seek to persuade the Council not to proceed with the proposed changes, or to modify the proposed changes, or to delay the planned implementation date of the proposed changes, or to implement different changes to those proposed. Once this is understood, it is clear that clause 4.2(c) contains a non-exhaustive list of matters about which relevant information in writing must be provided. The overarching obligation is to provide all relevant information in writing “about the changes” – that is, information on the subject of or concerning the changes proposed.
As the requirement to provide all relevant information is for the purposes of the discissions required by clause 4.2(a), that which is relevant information seems to me to be any information “about the changes” that is likely to inform the subject matter of those discussions. That subject matter is the introduction of the changes, the effects the changes are likely to have on employees and measures to avert or mitigate the adverse effects of such changes on employees. The information must exist and be in the possession or knowledge of the Council – there is no requirement for the Council to go searching for information, although the requirement to respond promptly to matters raised during discussions, if those matters fall properly within the subject matters for discussion, might have this result.
Given the stage at which discussions are required under clause 4 and the subject matter of those discussions, it appears to me that an evident purpose of the provision is to afford affected employees and their representatives the opportunity to have real input into the changes proposed, including by proposing alternatives, before any final decision about the changes is made. Logically, employees and their representatives cannot effectively or fully raise matters for consideration during discussions as contemplated by clause 4.2(a) nor provide a response as contemplated by clause 4.2(b), if those discussions are not informed by the provision of all relevant information.
Question 1
Council contends that it has provided information in writing to the affected employees and the ASU relating to the three categories of matters listed in clause 4.1(c). That may be so, but it is no answer to question 1. The ASU contends that relevant information about the proposed changes includes information:
· on which the decision to introduce the proposed changes is founded upon, including information that supports an alternative action to that proposed by the foreshadowed change;
· about the proposed changes;
· about how the proposed changes will affect employees if a definite decision is made.
The information in the second dot point above merely reflects the overarching obligation rather than providing any helpful description of particular information that the Council is obliged to provide. The third dot point is uncontroversial and is contemplated in the second of the described matters – expected effects of the changes on employees – in clause 4.2(c). As I have earlier noted, the Council has advised affected employees of the underpinning rationale for the proposal. It seems to me that information about the underpinning rationale for the proposal, which is not confined merely to a statement of the rationale, is the very kind of information “about the changes” that must be provided in writing, so that affected employees and their representatives can effectively hold discussions, raise matters with the Council and provide a response. It is this kind of information which is contemplated by the first part of the proposition in the first dot point noted above. As to the second part – including information that supports an alternative action to that proposed by the foreshadowed change – if this is intended to mean information “about the changes” that might also support alternative action, then I agree. However, the Council is not required to search for or to provide information that supports alternative action simpliciter. The information must have the requisite connection, that is, it must be about the changes.
Put another way, while the Council is required to provide relevant information about its rationale for the changes so that discussions about alternatives may be had, it is not required to provide any information requested simply because the affected employees or their representatives say they need the information to mount a case against the proposed changes. The relevant information required is “about the changes” having regard to the purpose and content of the discussions required.
As detailed in the statement of evidence of Mr Lund and in the various attachments to his statement, which evidence was not the subject of cross-examination, the Council has provided information setting out the context and rationale of the proposed change, the services that it proposes to cease providing, the services that it will continue to provide, and the proposed transition arrangements for clients should the Council decide to proceed with the change. Information about the effects of the proposed changes on employees has been provided including about redundancies and available redeployment options. The Council has also provided information about the proposed organisational changes. It has outlined its consultation initiatives planned for the consultation period and has provided information about the ways in which affected employees could give feedback. It has also provided information about the available outplacement/career transition services that affected employees can access and it has provided information about available support to affected employees throughout the consultation.
Having regard to the construction of clause 4 of the Agreement discussed earlier, the issue requiring determination under question 1 is whether the information provided by the Council thus far is all relevant information about the changes or whether some or all of the additional information sought by the ASU as earlier detailed must be provided in order that the obligation under clause 4(c) be discharged.
The obligations under clause 4 of the Agreement begin when “a responsible manager of the Council is proposing major changes”. Discussions must commence, and employees must have a reasonable opportunity to respond, before any definite decision is made by the Council to make the changes. It seems clear that at least by 29 November 2021, if not earlier, the Council was proposing a major change. On that day at a meeting of Councillors, the Council decided by resolution, inter alia, to obtain feedback from Commonwealth’s Home Support Programme service clients and affected employees in January 2022 on a proposed, staged transition of the Commonwealth’s Home Support Programme services to an alternative provider, should the Australian Government nominate a provider.[22] This is important because it provides a useful reference point for the question of the relevant information that must be provided.
Turning then to the categories of information sought by the ASU. I should here observe that there is nothing in Mr Lund’s evidence suggesting that the information sought by the ASU is not information that the Council has or about which it has knowledge. The Council is not required to provide the information listed earlier falling into the following categories:
· Category 6, because the information sought is about the existing service rather than information about the changes proposed. Moreover, there is nothing in the Council’s rationale for the proposed changes which suggests that a rationale for the change is the standard of performance of its existing service offering.
· Category 7, because the information is sought about the existing service and its comparison to services provided by other government and non-government providers rather than information about the changes proposed and there is nothing in the Council’s rationale suggesting that the proposal is advanced because of or for reasons relating to its comparative benchmarked position vis-à-vis other providers.
· Categories 8(a), (c), (d) and (e), because the information sought is about the existing service, both past and projected future operations, rather than information about the changes proposed. Moreover, there is nothing in the Council’s rationale suggesting financial performance of its existing services or the financial results of the provision of those services is a factor underpinning the proposed changes.
· Category 11, because the information sought is about the review of the existing service over a period in the past and any alternative method of delivering those services rather than information about the proposed changes.
· Category 12, because it is concerned with a cost/benefit analysis or financial viability of the proposed changes and any alternatives to the proposed changes and as is apparent from the rationale for the proposed changes advanced by the Council and not challenged in the hearing, the rationale does not include a financial rationale.
Categories 3 and 4 seek information provided to clients of the Council’s existing Services in relation to the proposed changes and any information, including surveys, scripts and instructions, used by the Council to communicate to clients about the proposed changes. Mr Lund gave evidence that an earlier request by the ASU for information of this kind was declined because such information did not relate to the changes proposed for employees but rather it was informative of the proposed changes for clients.[23] This is a very narrow view of relevance in the context of clause 4 of the Agreement. Information provided to clients by the Council in relation to the proposed changes are plainly relevant to the proposed changes and have the capacity to inform affected employees about the effects the changes are likely to have on employees and about the introduction of the changes. That said Mr Lund annexed to his statement a template copy of correspondence sent to clients which appears on its face to contain all of the same information that has already been provided to the affected employees and the ASU.[24]
I have obviously not had the benefit of reviewing, because it has not been provided to me, any other information beyond the template letter that has been provided to clients nor any surveys, scripts, et cetera used by the Council to communicate with clients. However, if in amongst such material there is information about the changes, which is not personal information about a particular client, and which is not information that has already been provided to the affected employees and the ASU, then it should be provided.
Category 1 seeks information about the proposed changes which was provided to the Councillors for its meeting on 29 November 2021. Mr Lund gave evidence that such information or at least reports provided to Councillors is confidential information which was discussed during a close meeting. He said the reports contained business information that would prejudice the position of Council in commercial negotiations and private which would unreasonably expose the business, commercial or financial undertaking to the Council’s disadvantage.[25] These broad statements tell me very little about how the disclosure would be contrary to Council’s interest. But in any event the request for information that is made, is made or should be made in the knowledge that there is a confidential information exception to the provision of information in clause 4.
It may be inferred that the request for information does not include a request for the provision of confidential information properly falling within the exception. It is no answer to the request for the provision of information that some of the information might be confidential information falling within the exception. Bearing in mind that the obligation is to provide information, and not documents, there is no reason why information which is not properly confidential could not be provided. Because I do not know what information was provided to the Council at its meeting on 29 November 2021, I cannot assess whether any of the information is properly confidential within the meaning of the exception, or whether some of the information is not confidential and whether such information has not already been provided to the relevant employees and the ASU. But what cannot be allowed to happen is for the Council to hide, under the cloak of confidentiality, information that ought properly to be given to the relevant employees and to the ASU about the proposed changes.
The same analysis pertains to the information in category 5 in relation to the information in attachment 1 to the Age Services Reform officer report provided to Councillors in a council meeting on 11 April 2022.
There is no dispute that the information which is said to be confidential is about the proposed changes. The information contained in the material discussed above could be provided in a way that protects the Council’s interest. The information could be provided subject to a confidentiality undertaking being entered into by the relevant employees and the ASU, but plainly if the information is properly confidential information for the purposes of clause 4.2(c) of the Agreement, then there is no obligation to provide it whether such undertakings are forthcoming or not. But it will be rare that the whole of the information will be confidential. Information may be synthesised, summarised or documents containing information might be redacted such that some information which is about the proposed changes may nevertheless be given. There is nothing in the evidence of Mr Lund which suggests this cannot be done.
It may be that the Council has already provided this information in amongst the information that it has thus far provided to the relevant employees and the ASU, but if that were the case presumably Mr Lund would have said so in his evidence, but he does not. Thus, if there is information which has been provided to the Council, which has not already been provided to the relevant employees and the ASU, and which can be synthesised, summarised or redacted in a way to protect the Council’s interests vis-à-vis confidential information, then that information ought to be provided to the relevant employees and the ASU.
Category 2 seeks information provided to the Australian Government by the Council in connection with the Aged Care Services and/or the proposed changes to the Council’s Aged Care Services in or around December 2021.
Mr Lund gave evidence suggesting that the information requested is confidential principally based on particular terms in the grant agreement which require that each party not disclose the other party’s confidential information and that the Australian government had treated its communications with Council about the proposal as confidential by marking it as such and that it had on a number of occasions given directions to the Council about the treatment of its information.[26]
The request for information encapsulated in category 2 is not seeking information about what the Australian government said either orally or in writing to the Council. It seeks information that the Council provided to the Australian government in or around December 2021 about the proposed changes. Mr Lund does not say that the information that the Council provided to the Australian government is confidential, although the Australian government is required to keep it confidential. There is nothing in the extract of the grant agreement set out in Mr Lund’s statement which suggests that the Council is required to keep its own information given to the Australian government confidential save for information in connection with the awarding of any grant. There is also nothing in Mr Lund’s recount of the discussions with the Australian government which suggests that the Council is prohibited from disclosing information that it has provided to the Australian government about the proposed changes.
It may be that the Council has provided, in its information to the relevant employees and the ASU, information that it provided to the Australian government in or around December 2021 but if that were the case Mr Lund would have presumably said so and he does not say so in his evidence. Consequently, if there is information about the changes that the Council provided to the Australian government in or around December 2021 which has not already been provided to the relevant employees and the ASU, then that information ought to be provided to them.
Category 8(b) seeks information about client numbers for the past five years and projected client numbers for the future five years. As I have earlier noted a rationale for the proposed change that has been communicated to the relevant employees and the ASU is that an increase in the number of home care packages and service providers resulting from changes to the aged care system has led to a decline in the number of persons choosing to access aged care service through the Council. Mr Lund has given evidence that the Council “has experienced a greater than 40% decline in the use of aged care services offered by the Council in the past five years as a result of the increase in the number of” providers of the Commonwealth’s Home Support Programme.[27] Given that the decline in usage is an underpinning rationale for the proposed changes, information by reference to client numbers over the previous five years is information that should be provided. Moreover, it seems to me that the relevant employees and the ASU are entitled to properly understand the veracity of this underpinning rationale, and so if there is information about the projected number of clients who would use the existing Council services over the next five years or some lesser period than that information should be provided. Information about the rationale for the proposed changes is in my view information about the proposed changes.
Category 8(f) seeks information about the funding model that would operate in respect of any continued provision of the existing services, including the extent to which the program would need to be subsidised by taxpayer income. Although I do not consider all information falling within this category must be provided, given that a rationale for the proposed changes is that the need for ongoing subsidy to provide Commonwealth Home Support Programme services would be anti-competitive and likely to be in breach of the National Competition Policy, information about the extent of the estimated annual ongoing subsidy the Council would be required to provide to maintain the existing services (as distinct from the projected costs for the ongoing provision of the existing services) is relevant information about the proposed changes and so must be provided.
Category 9 seeks any external consultancy report obtained by the Council relating to the Aged Care Services and/or the proposed changes. For the reasons earlier set out, the requirement to provide information about the proposed changes is not a requirement to provide documents. This is plainly a request for documents.
Mr Lund gave evidence that that the Council has not engaged a consulting firm known as Mach2. However, he does not say that the Council has not engaged any external consultancy to provide the Council with a report about the proposed changes. Presumably if an external consultancy firm had not so been engaged, he would have said so. As I have said there is no obligation on the Council to provide documents, however, if the Council has engaged an external consultancy to provide it with a report or advice about the proposed changes then there is information about the proposed changes which will need to be provided. Such information may include a summary of any recommendations that the consultancy made about the proposed changes and information about such recommendations if any that have been adopted by the Council in formulating the proposed changes.
Category 10 seeks any existing skill-based assessment or evaluation of Council’s capacity to continue providing aged care services. On its face this category also seeks a document or documents, which for reasons I have earlier set out, the Council is not required to provide. However as one of the rationale for the proposed change is a view by Council that it does not have internal capacity to provide the expanded range of services to be delivered under the Support at Home Program nor do its staff possess the expertise or skillset to deliver the Support at Home Program services to people with high care need, information about the existing staffs’ skill-base is information that should be provided because it is relevant to understanding this rationale for the proposed change and so it is information about the proposed changes.
Category 13 seeks information about the cost to the Council of proceeding with the proposed changes while category 14 seeks information about the expected savings that will result if the proposed changes proceed. As I have earlier noted, while financial considerations do not seem to underpin any of the rationale for the proposed changes, the kind of information sought by categories 13 and 14 appear to be to be information about the changes which will plainly have a bearing on what relevant employees and the ASU might be able to say about the proposed changes and any alternatives that it or they might propose in any response. An itemised costing is too broad a request. I consider that information about the total cost of the proposal if implemented, the total cost of any redundancies if the proposal is implemented, and the total annual projected savings, if any, to the Council if the proposal is implemented, should be provided.
During the hearing, the ASU made clear that the only information that is sought is that which is set out in attachment A to its written outline of submissions. Consequently, the first question posed by the parties needs necessarily be modified to exclude reference to information sought in earlier correspondence from the ASU to the Council.
With that modification, for the reasons given above the answer to the first question is no.
Question 2
The second question requires a consideration of whether pursuant to clause 4 of the Agreement, the Council is obliged to provide any response received from an affected employee, or the ASU, to the Council’s Councillors.
The Council contends there is no such obligation expressed in clause 4 and none can be implied. It contends the Local Government Act 2020 (Vic) (LG Act) makes sharp distinctions about the responsibilities for the employment relationship, and the responsibilities of Councillors. It says that under the LG Act the Council’s Chief Executive Officer is responsible for the engagement of employees on behalf of the Council. The CEO is provided with the function of, inter alia, “all staffing matters, including appointing, directing, managing and dismissing members of Council staff.” The Council contends that the LG Act expressly disavows any responsibility for Councillors in relation to employment relationships and the role of a Councillor does not include the performance of any responsibilities or functions of the CEO.
Section 43(4)(c) of the LG Act imposes an obligation on the CEO to consult members of Council staff affected by a proposed organisational restructure, before implementing the organisational restructure, while under s 43(3)(c) the CEO is responsible for managing interactions between members of Council staff and Councillors and ensuring that policies, practices and protocols that support arrangements for interaction between members of Council staff and Councillors are developed and implemented. The Council says that considering s 43(3)(c), the Commission cannot (presumably absent a provision in the Agreement to the contrary) require the CEO, currently Mr Storer, to do that which he has determined not to do in exercising his responsibility.
There can be little doubt that there is a delineation of responsibility for staffing and employment related matters, including consultation, as between the CEO and the Councillors, as the Council contends. But that provides no answer to question 2. Nor do generalised suggestions that the process of decision making at council meetings is a political process have no bearing on the obligations which clause 4 of the Agreement imposes.
It is uncontroversial that a decision whether to proceed with the proposed change will be made by the Council at a meeting of the elected Councillors. One of the roles of every Councillor under the LG Act is to participate in the decision making of the Council.[28] But the role of a Councillor does not include the performance of any responsibilities or functions of the CEO.[29] Thus is it not the role of a councillor to perform any of the functions discussed above which are assigned to the CEO under the LG Act, including therefore, consultation with staff above organisational changes.
That said, it does not follow that the decision maker, being the Councillors at a relevant meeting of the Council are not required, under clause 4 of the Agreement to consider the views expressed by employees and their representatives during discussion. The text and context of clause 4 and its evident purpose earlier discussed, tell against a construction which would have the result that a decision maker could proceed to make a final decision about proposed changes without knowing the matters raised by relevant employees or their representative in any response.
The plain purpose of the requirement for the Council to give prompt consideration to matters raised by the employees and/or their representatives in relation to the changes in clause 4.2(a) and for employees to have a reasonable opportunity to respond, prior to any definite decision being made by the Council to make the changes in clause 4.2(b), is to give the relevant employees and their representatives an opportunity to influence the final decision. These provisions would be rendered inutile and provide no right at all if the response to the change proposal advanced by affected employees and their representatives which could affect or influence the final decision were not communicated to the decision maker. Plainly not every matter raised by relevant employees and their representatives during the discussions need be communicated to the Councillors. Some and often may matters raised will not likely affect the final decision, for example, questions about available redeployment or the amount of redundancy pay or the existence of outplacement and other support services, which can be quickly answered. But matters raised by relevant employees and their representatives in a response which involve advocating for an alternative proposal or for changes to the proposal or its timed implementation or which oppose any change at all rationally have the capacity to influence the decision and therefore should be known the decision maker, otherwise the right to be given a reasonable opportunity to respond before any definite decision is made by the Council is no opportunity at all.
The Council also contended that the right under clause 4.2(b) is confined to affected “employees” and it is they, as opposed to the ASU, who must be given a reasonable opportunity to respond. True it is that the ASU does not have a right under clause 4 to independently participate in the consultation process. It does so as a representative of the affected employees, or some of them. Read in the context of the clause 4 as a whole, clause 4.2(b) which requires a reasonable opportunity be afforded to employees to respond, also contemplates a reasonable opportunity be afforded to an effected employee’s representative, if the response is to be given by the representative on behalf of or for the affected employee or employees whom the representative represents. A response given by a representative of an employee, is a response given for or by the employee.
Not every consultation about Council proposed major changes will require responses of affected employees or their representatives to be communicated to the Councillors. Final decisions about many such change proposals will likely not involve a decision of the Councillors at all. A major change involving an internal organisational restructure would likely be a case in point. But here the final decision is to be made by the Councillors at a council meeting and so to give effect to the evident purpose of the consultation provision in clause 4, the responses of affected employees or their representatives must be made known to the Councillors. This does not mean, for example, that a comprehensive written alternative proposal by one or more affected employees or their representatives need be put before the meeting of Councillors. An accurate summary of the response would in my view suffice. But no information to the Councillors about relevant responses will not suffice.
For completeness I do not accept the ASU’s contention that consultation must occur between the decision maker being the Councillors and the affected employees and their representatives. Nor do I accept that in order that the affected employees have a genuine opportunity to influence the final decision that it is necessary for the Councillors to engage in some form of open forum discussion canvassing the affected employees’ views. The Council, like many organisations, operates through its officials and senior management. Councillors, like members of a board of a private sector organisation, need not and generally do not engage with employees in the cut and thrust of consultation about major change. That is what the senior staff of the organisation are employed to do. In the present circumstances, that which is required is that the decision maker, the Councillors, know that one or more responses have been given and are accurately appraised of the content of any response.
It seems to me that responses of employees or their representatives which oppose any change, or which contain or advocate alternative proposals, or which contain or advocate for changes to the proposal or its timing would all rationally have the capacity to influence the decision. For these reasons, the answer to the second question is yes, in the circumstances relating to the proposed changes subject to these dispute applications.
Question 3
The third question asks whether in light of the answers to Questions 1 and 2, the Council has failed to comply with clause 4.2(b) by denying affected employees and their representative a ‘reasonable opportunity’ to respond to the proposed changes prior to a definite decision being made by Council.
So much of the Council’s contention which relates to the confined nature of the obligation to provide a reasonable opportunity to respond has already been dealt with above. It is uncontroversial that despite being asked to do so, the ASU as a representative of some of the affected employees has not provided a response. Whilst I accept that a response given should be informed by relevant information provided and that if all relevant information is not provided it cannot be said that a reasonable opportunity to respond has been given. Nevertheless it seems to me, given the information to hand and having regard to [35] of Mr Lund’s statement which was not contested, relevant employees represented by the ASU and the ASU have had an opportunity to provide their response to the extent that the response would have constituted an opposition to the proposal and to the extent that the response would constitute a proposed alteration to the timing of the implementation of the response.
But it must be accepted that in framing an alternative proposal to the proposed changes or in advancing alterations to the proposed changes, neither the affected employees nor the ASU could have completely or effectively prepared and given such a response without having all relevant information to hand.
Whilst I cannot accept that the Council has failed to comply with clause 4.2 (b) of the Agreement, because the reasonable opportunity to be provided is measured by reference to a period of time before a final decision is made, and in the instant case no final decision is made, I am able to say that if a final decision is made without the relevant employees and their representatives being provided with the information that I have earlier identified and a period to respond is not allowed, then the relevant employees or the ASU as a representative of those employees wishing to respond on behalf of those it represents, the Council will not have been given a reasonable opportunity to provide a response.
In its written submissions and during the oral hearing, the ASU contended that it requires a period of six weeks from the date on which it receives the information it has sought to provide a written response to the proposed changes.
Given the information that I have identified as being required to be provided, the information already provided, the consultation that has thus far occurred between the Council and the affected employees and the ASU, it would have been folly for the ASU to have undertaken no work on a response to the proposed changes. The ASU also contended that it might wish to engage an expert to provide it with advice about an alternative proposal. This may be so, but one would have expected that if the ASU genuinely wish to advance an alternative proposal requiring an expert that it would have taken steps to engage an expert long before now. The consultation process is an opportunity to be informed about proposed changes and to influence a final decision. It is not a mechanism through which to delay or frustrate. I do not consider that a further six-week period within which a response might be provided is reasonable in all of the circumstances.
I propose instead that the Council provide the information that I have identified to the relevant employees and to the ASU by no later than Monday, 9 May 2022 and that the affected employees and the ASU on behalf of any affected employee give a response in writing to the Council by the earlier of 23 May 2022 or within 14 days after the date on which the information is provided to affected employees and the ASU by the Council. This will provide a reasonable time for relevant employees and/or the ASU to respond and it will allow the Council time to arrange a meeting of the Councillors at which the proposed changes, informed by any responses received, are to be considered and then adopted, rejected or modified before the proposed date of the first of two phased service withdrawals.
Conclusion
For the reasons given:
· The answer to question 1 as modified is “no”.
· The answer to question 2 is “yes” in the circumstances relating to the proposed changes subject to these dispute applications.
· In answer to question 3 the Council will not comply with clause 4.2 (b) if it does not provide further relevant information about the proposed changes and allows a further period for responses to the proposed changes to be given.
Order
I order as follows:
1. On or before Monday, 9 May 2022 the Boroondara City Council (Council) must provide the following information to affected employees and to the Australian Municipal, Administrative, Clerical and Services Union (ASU):
· Information provided by the Council:
oto clients of the Commonwealth’s Home Support Programme services currently operated by the Council about the proposed changes; and
oto staff of the Council used for the purpose communicating with these clients about the proposed changes,
other than information that the Council has already provided affected employees and the ASU;
· Information provided to the Councillors:
oAt a meeting on 29 November 2021 about the proposed changes; and
oAbout the content of attachment 1 to the Age Services Reform officer report provided to a Council meeting on 11 April 2022,
other than information that the Council has already provided affected employees and the ASU;
· Information provided by the Council to the Australian Government in connection with the proposed changes in or around December 2021 other than information that the Council has already provided affected employees and the ASU;
· Information about client numbers accessing the Commonwealth’s Home Support Programme services operated by the Council over the period of 5 years ending on 30 June 2021 and projected client numbers that might access these services each year in a period five years beginning on 1 July 2021;
· Information about the estimated annual ongoing subsidy that the Council would be required to provide to maintain the existing services;
· Information about the proposed changes obtained from any external consultant engaged by the Council about the proposed changes including any recommendations made about the proposed change;
· Information about the current skill-base of existing employees engaged by the Council in the provision of Commonwealth’s Home Support Programme services currently operated by the Council;
· Information about the estimated total cost to the Council if the proposed change is implemented;
· Information about the estimated total redundancy costs that will be incurred by Council if the proposed change is implemented;
· Information about the estimated cost saving the Council expects annually if the proposed change is implemented.
2. The Council must allow the affected employees or their representatives a period until the earlier of 23 May 2022 or 14 days after the date on which the information in [1] above is provided by the Council to affected employees and the ASU, to provide the Council with a response to the proposed change.
3. Any response received the by Council by the due date, or an accurate summary thereof, must be provided by relevant responsible officers of the Council to the Councillors before the Councillors make a final decision about the proposed change.
4. In this order, “proposed change” means the changes proposed by the Council to the service delivery of in-home aged care services to residents of the Council discussed at [17]-[26] of the witness statement of Mr Nicholas Lund, Manager - Liveable Communities.
5. Nothing in this order requires the Council to provide information that is confidential information the disclosure of which would be contrary to the Council’s interests.
DEPUTY PRESIDENT
Appearances:
Mr L Howard of Counsel for the Council
Mr A White of Counsel for the ASU
Hearing details:
2022
Melbourne (via video)
27 April
Written submissions:
The Council, 13 April 2022
The ASU, 20 April 2022
[1] Witness Statement of Nicholas Lund, Manager - Liveable Communities, at [5]-[7]
[2] Ibid at [8]-[13]
[3] Ibid at [14]-[16]
[4] Ibid at [17]
[5] Ibid at [18]-[20]
[6] Ibid at [21]
[7] Ibid at [22]-[24]
[8] Ibid at [25]
[9] Ibid at [26]
[10] See Ibid at [17]
[11] Ibid at Annexure NL-3
[12] Witness statement of Emma Bagg, ASU Organiser at Attachment Q at p 124
[13] Ibid at [20]
[14] Ibid at [21]
[15] Ibid at [22]
[16] Ibid at [24]-[25] and Attachment H at pp 73-85
[17] See Witness statement of Emma Bagg, ASU Organiser at [26]-[59] and the annexures referred to therein; Witness Statement of Nicholas Lund, Manager - Liveable Communities, at [45]-[49], [72]-[74]
[18] Witness statement of Emma Bagg, ASU Organiser at [37]
[19] Ibid
[20] WorkPac Pty Ltd v Skene [2018] FCAFC 131 at [197] and the authorities referred to therein; see also King v Melbourne Vicentre Swimming Club Inc [2020] FCA 1173 at [122]-[130] and the authorities referred to therein (The analysis of the principles of construction set out therein were not disturbed on appeal: see King v Melbourne Vicentre Swimming Club Inc [2021 FCAFC 123, 308 IR 171 at [40]-[43])
[21] See Seaman and Ors v First Mildura Irrigation Trust [1994] FCA 1233 at [67], 55 IR 360 at 380-381; Australian Licenced Aircraft Engineers Association v Qantas Airways Ltd [2013] FCCA 592, 234 IR 418 at [103]-[104]
[22] Witness Statement of Nicholas Lund, Manager - Liveable Communities, at [20]
[23] Ibid at [85]
[24] Ibid, attachment NL-15
[25] Ibid at [75]
[26] Ibid at [78] – [80]
[27] Ibid at [13]
[28] Section 28(1)(a)
[29] Section 28(3)
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