Code of Conduct for Council Employees - commences next week

LG Leader March 2018

By now council’s will be aware that a new Code of Conduct for Council Employees (“new Code”) will come into operation on 2 April 2018. Unlike its predecessor, the new Code, prescribed within Schedule 2A of the Local Government (General) Regulations 2013, omits from its content any clauses that specifically deal with employee behavior, responsibilities and relationships within council. Rather, the new Code deals solely and exclusively with gifts and benefits.

For a detailed overview of the new Code, see our LG Alert titled “New Code of Conduct for Council Employees” here.

There is no doubt that once the new Code is applied, there will be questions asked about its practical application.

For example, the new Code does not differentiate between benefit and hospitality. Given that “benefits” is not defined in the legislative scheme for these purposes, it is necessary to consider the ordinary and natural meaning of the noun. Relevantly, therefore, a kindly act, again or an advantage (in terms of something with a pecuniary value being provided without cost to the recipient) lend support to the proposition that hospitality, the conferring of a gift of food and/or drink and/or entertainment without charge to the recipient is objectively and reasonably within the conspectus of the conferral of a benefit. Accordingly, it can be said that any reference to “benefits” contained within the new Code also includes hospitality.

The additional proposition is that some council’s are contemplating the introduction of its own Code of Conduct to embody organisational and cultural expectations of conduct. Of course, it is acceptable to take this approach provided the councils own Code does not deviate from the legislative requirements contained within schedule 2A, the Local Government Act 1999, WorkHealth and Safety Act 2012, the Fairwork Act 1994 and any relevant award or enterprise agreement.

In this instance, such a Code of Conduct will operate as a policy document as opposed to a regulatory tool and legal instrument.

Time will tell whether the revised approach becomes easier to apply.