What you need to know
- Councils are now required to include detailed information about current employees in their domestic or other waste management services tender documents.
- If that information is included in the tender documents, tenderers must undertake to offer existing employees terms of employment equivalent to or better than their current conditions. This includes maintaining existing entitlements and annual pay increases aligned with relevant awards or agreements.
- The onus is on the tenderer to comply with these employee protection clauses. Non-compliance can lead to disqualification from the tender process or legal consequences post-award.
- A Council cannot accept a tender submission until it has consulted with and satisfied the relevant trade union, adding another layer of complexity and risk to the tender process.
- These amendments could lead to increased operational costs due to higher wage bills. Accordingly, it is imperative to factor these into any tendering strategy to maintain profitability while complying with the Amendments.
Overview of the new Regulations
In December 2023, the Local Government (General) Regulation 2021 was amended by the Local Government (General) Amendment (Tendering) Regulation (No 2) 2023 (Amendments). The Amendments relate to local government waste management tenders, and place new obligations on both Councils and waste management contractors to mandate conditions of employment of incumbent waste employees and increase the oversight of trade unions in NSW’s waste industry.
Obligations on Council when Tendering waste management services
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 (i.e. salaries and leave entitlements), unless the council cannot reasonably obtain access to that information. The information must be de-identified to protect the privacy of individuals.
Obligations on Contractors when submitting a tender for waste management services
If the tender documents include the employee information referred to above then tender submissions must contain an undertaking that the tenderer will offer those employees continued employment:
- on at least the same terms as that individual’s current employment;
- that recognises the employee’s period of service with the incumbent provider; and
- that will pay annual increases in accordance with either the applicable industrial instrument or the Local Government (State) Award.
Assessment of Tender Submissions
The Amendments also prevent Councils from accepting tender submissions for domestic or other waste management services that contain an undertaking, except where:
- the council has consulted with each relevant registered organisation (i.e. trade unions); and
- each relevant registered organisation is satisfied that appropriate industrial arrangements will be in place to ensure compliance with the undertaking during the life of the contract.
Who can enforce an undertaking?
Councils or any individual who is subject to the undertaking may take action to enforce the undertaking of the Contractor.
If you are concerned about the Amendments or have any questions about how the Amendments may affect your business, we recommend you contact us to discuss.
