Local Government Act Amendments

The 2023 and 2024 Local Government Amending Acts have amended the Local Government Act 1995 to implement significant reforms. One set of amendments most recently came into effect on 7 December 2024, with others still awaiting proclamation.

As a result there are new obligations local governments need to be aware of, especially as the practical implications of these changes become clearer. The amendments relate to:

• the roles and duties of Council, Elected Members, the Mayor and the CEO;
• the requirement for Council to 'respect' the separation of the Council and CEO as well as to 'support' the 'respectful and fair' treatment of employees;
• the regulation of payments to Elected Member for legal costs;
• superannuation arrangements for Elected Members;
• communication agreements between the Council and CEO;
• reporting mechanisms for breaches of Elected Member Codes of Conduct; and
• prohibitions on 'significant acts' during caretaker periods.

For example, new section 2.7(3) of the LG Act requires Council to 'have regard' to the separation of the Council's 'governing' role from the CEO's 'executive' role. In parallel, new regulations will implement a 'communications agreement' between the Council and CEO. Together, these provisions require local governments to consider existing policies/procedures (if any) about Council communication with the City's administration and ensure the scope of Council's role is adequately reflected in those procedures.

Having carefully reviewed the amendments and considered their likely impact on the way local governments operate, we can assist your local government to understand them and comply.

Work Health Safety

Local governments continue to adapt to the introduction of the 2022 WHS Act, with WorkSafe increasing its focus on compliance in the sector. The key areas our local government clients are focussing on in 2025 include due diligence and officer duties, contractor management and medicinal cannabis.

WHS due diligence duties

Under the Work Health and Safety Act 2020 (WA) () an officer of a ‘person conducting a business or undertaking’ (PCBU) has ongoing due diligence obligations to ensure the PCBU is complying with its with safety duties. Officer due diligence under the WHS Act is a personal, non-delegable duty that requires continuous compliance given an officer can be the subject of a prosecution for failing to comply with their due diligence obligations in circumstances where the PCBU has not been prosecuted and there has been notifiable incident. It is often not clear in the local government context who are officers for these purposes.

MinterEllison's 'Officer Mapping Framework' can assist in identifying those local government employees who will be considered 'officers' for the purpose of the WHS Act and therefore have due diligence responsibilities. This involves reviewing organisational structures, job descriptions, delegations, and key policies as well as considering participation in decision making processes.

Once officers have been identified, MinterEllison can provide training to officers and other relevant senior staff on their duties, how they can meet those duties and how others in the organisation can support and assist them.

Contractor management and WHS duties

Most local governments rely extensively on contractors when providing services to their communities – including landscape maintenance, waste collection and construction. Some of this work is high risk work or work that requires specialist skills.

While the contractor will itself be a PCBU, the local government will owe duties under the WHS Act to the contractor and to the employees of the contractor (and any sub-contractors).

To ensure it is managing contractors in a way that enables it to meet its various obligations under the WHS Act, a local government needs to have an effective contractor management system in place which provides for:

• the evaluation and selection of contractors;
• engaging and onboarding of contractors;
• monitoring contractor WHS performance; and
• reviewing contractor performance.

Many of the serious WHS incidents that occur in local governments relate to contractors. Local governments are increasingly finding themselves the subject of WorkSafe investigations where the employees of contractors are injured.

Our team can assist by conducting a WHS audit of contractor management arrangements and make recommendations on how to fill any identified gaps to ensure compliance with WHS duties. We also routinely advise local governments on responding to serious incidents and WorkSafe investigations.

Medicinal cannabis

Given the increased use of medicinal cannabis and its impact on fitness for work, we recommend local governments review their current drug and alcohol policy, not only to ensure employees are aware of their WHS obligations when taking medicinal cannabis, but also to reflect the guidance from WorkSafe WA.

WorkSafe WA has recently issued an information sheet regarding medicinal cannabis in the workplace. This makes the following points:

• medicinal cannabis may affect a person’s capacity to safely drive, operate machinery and perform complex tasks. The effect and duration of the drug’s action can vary widely;
• in general, a person should not drive for at least 8 hours after taking a THC dose. Driving and testing positive for THC is an offence in WA;
• medicinal cannabis affects concentration and attention. Ingested medicinal cannabis has an effect within 30-60 minutes that may persist for 8-24 hours;
• CBD has a lower risk than THC for driving but its sedative effect cannot be ignored; and
• workers have a duty to notify their employer they are taking a prescribed medicinal cannabis product.

Industrial bargaining

Two years on from the move to the State industrial relations system, there continue to be various industrial relations issues local governments are grappling with due to the application of the Industrial Relations Act 1997. Proceedings in the Western Australian Industrial Relations Commission are proving significantly different to the equivalent proceedings in the Fair Work Commission.

The key issues include:

• trying to ensure the terms and conditions in the new industrial agreements are not too different from the terms and conditions employees were used to under the Federal industrial relations system while at the same time ensuring the industrial agreement complies with applicable legislation (including the recently amended Minimum Conditions of Employment Act), the State Awards (which apply to previously federally covered local governments from 1 January 2025) and applicable WAIRC decisions;
• where a new industrial agreement has not been registered and the local government has a new state instrument (NSI) that continues to apply, ensuring that employees are paid any State Award entitlements that may apply because of the operation of section 41(9) of the IR Act;
• developing bargaining strategies that ensure the local government can manage relevant unions. This includes dealing with attempts by unions with whom a local government hasn't previously bargained to participate in bargaining and/or become parties to industrial agreements;
• if agreement cannot be reached, considering what steps can be taken under the IR Act to overcome bargaining issues and have industrial agreements registered.

Our team has been assisting local governments with all of these issues including providing representation in WAIRC proceedings.

If you are about to commence bargaining, we can assist with developing a bargaining strategy and can conduct a compliance review of your proposed agreement. If you have been bargaining for some time but are unable to conclude bargaining, we can suggest some options for progressing bargaining.

Checklist

Here is our list of the current things for local governments to action:

• Have you considered the most recent reforms to the Local Government Act 1995 and how these impact your relevant policies and procedures?
• Is your WHS framework fit for purpose including identification of responsible officers and establishment of a robust contractor management framework?
• How are you dealing with medicinal cannabis and does your fitness for work process need to be adjusted to account for its increasing use?
• Have you considered the current status of your transitional industrial instruments and updated your bargaining strategy in light of recent developments?