In December 2023, the Office of Local Government issued a circular which advised of changes to the Local Government (General) Regulation 2021 – NSW Legislation to protect the workers from domestic or other waste management services. As result, when organising tenders for domestic or other waste management services councils must request undertaking from tenderers.
Does your council include continuity of employment and the undertaking in tenders and contracts?
“Undertaking” means that tenderers will agree to offer employees of the incumbent contractor continuity of employment with the new contract. If accepted, employment will be on at least the same terms as the individual’s current employment without loss of entitlements and with increases in accordance with the applicable industrial instrument of the Local Government (State) Award.
As a reminder, the sections of the Local Government (General) Regulation 2021 which contain information regarding the undertaking and the content of the undertaking are:
Ø Section 170 provides that “tender proposal documents for domestic or other waste management services must provide details of the employees who currently provide the service and the terms on which they are employed. This information must be provided in a way that protects the privacy of individual workers. This information is not required to be included if the council cannot reasonably obtain access to the information”.
Ø Section 173 provides that ”tender submissions for the performance of domestic or other waste management services to contain 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:
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- the employment will be on at least the same terms as the individual’s current employment, and
- the employment will be taken to be a continuation of the individual’s current employment with no loss of entitlements, and
- the tenderer will pay an annual increase in the individual’s base rate pay in accordance with the applicable industrial instrument or the Local Government (State) Award if there is no applicable instrument”.
- Section 173(6) provides that “an individual, to which an undertaking relates, may take action to enforce the undertaking as if the undertaking were a contract between the tenderer and the individual”
- Section 177 provides that “tender submissions for the performance of domestic or other waste management services cannot be considered by a council unless they contain the required undertaking”.
- Section 178 provides that “councils must ensure that every contract they enter into as a result of a tender submission they accept, is with the successful tenderer and in accordance with the tender. This means that the terms and conditions of any contract for the performance of domestic or other waste management services must reflect the undertaking given by the tenderer”
- Section 178(1A) provides that “a council must not accept a tender submission for a proposed contract 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.
One may ask: “What if there is no waste contract in place when the tender documents are prepared, hence there is no incumbent to provide the information requested in the Local Government (General) Regulation 2021”?
In this case, tenderers must provide undertaking with their submission that if successful, they will conform with the Regulation 173(4) and (5) and provide the required details several weeks before the end of the contract term and on completion of the contract term.
If you need assistance with your waste tender, please contact Strategic Procurement Solutions via email: [email protected]