The Stay at Home Direction — the first 24 hours for councils
As we are now all well aware, without any prior warning to the sector, consequent upon the existing SA Public Health Act 2011 and the Emergency Management Act 2004 emergency declarations, the Premier yesterday announced proposed directions, now contained in the Emergency Management (Stay at Home) (COVID-19) Direction 2020 (the Stay at Home Direction).
The Stay at Home Direction will operate for a defined period, from 12:01am today, ending on 12:01am on 25 November 2020.
The immediate issues for the consideration of CEO’s are:
- determining which employees are ‘essential workers’, and are required to be present at the workplace, and which employees may work from home;
- the holding of in person meetings, including ordinary council meetings, during the defined period; and
- the closure of ‘non-essential’ services, including the council’s principal office.
Essential workers are defined under the Stay at Home Direction as a ‘person who performs work that is essential for the continued operation’ of a number of prescribed activities, including ‘government or local government services (whether provided by government, local government or outsourced’.
Clause 3(o) provides that it is for the CEO to determine who is an essential worker for the purposes of ensuring the continued operation of the council.
Of course, as always, any such determination must also take into account the council’s (and the CEO’s) overriding obligation to ensure the health, safety and welfare of council employees under the Work, Health and Safety Act 2012 (WHS Act).
Clause 5 of the Stay at Home Direction provides that all persons in South Australia must stay at home for the duration of the defined period, unless they have a reason to leave home that falls under Part 3, Reasons to leave home.
Clause 6(1) of Part 3 sets out the list of essential goods or service that a person may leave home to obtain, but it is not lawful to leave home for the purposes of attending at a public meeting, including a council meeting.
However, clause 8 provides that a person may leave home for the purposes of undertaking duties as an essential worker.
In our view, and noting our previous advice on these issues, elected members are not ‘workers’ for the purposes of the statutory regime in South Australia. Hence, it is not open for a CEO to determine under clause 3(o) that an elected member is an essential worker, performing work that is essential for the continued operation of the council, requiring their attendance at the premises for the purposes of a council meeting.
Rather, the matters which appropriately fall within the scope of essential services, are matters such as:
- basic sanitation, through the provision of sewage and waste disposal services;
- health care, through the provision of immunization services and access to medical specialists;
- services to ensure the safety of residents, including the inspection and pruning as required, of trees and vegetation, and the maintenance of roads;
- providing assistance to the vulnerable in the community, including by facilitating transportation to, and from, medical appointments and to purchase food and other essentials;
- providing, and maintaining, crucial infrastructure such as clean water and waste water management services;
- regulatory roles, including the capture and impounding of dangerous dogs and dogs wandering at large;
- ensuring that the environmental health obligations of service providers are maintained; and
- providing child care and aged care services.
Accordingly, for the defined period (and, potentially, beyond, subject to any further Directions which may be issued) those councils which have re-commenced ‘in person’ ordinary council meetings, will be required to revert to the position, as set out under the Minster’s Electronic Participation in Council Meetings Notice (No 1) 2020 (Notice 1).
Under Notice 1, councils have already amended their respective Code of Practice for Access to Meetings and Documents (the Code), to enable electronic participation in council meetings.
This Notice also amended section 81, to insert subsection (3a), which provides that if an ordinary meeting has been scheduled but the meeting cannot now be held at the designated place as a result of the public health emergency (in this instance, as required under the Stay at Home Direction), the Chief Executive Officer may appoint a different place for the ordinary meeting to take place. This can be electronically in accordance with section 81(8) of the Act.
This power is conferred directly upon the Chief Executive Officer without there being any need to follow a rescission or amendment process.
As part of a CEOs obligation to manage the day to day operations of the council under the Act, the CEO is required to give effect to the council’s obligations under the Stay at Home Direction.
The business that may be transacted at the principal office of the council is not an essential good or service that falls within Part 3, Reasons to leave home, unless the individual employees located at that office have been determined by the CEO to be an essential worker. In which case, however, the office is not required to be open, just accessible to the worker.
Accordingly, and as was the case earlier this year, noting there has been no prior warning in relation to the Directions announced by the Premier yesterday, it is our advice that the CEO’s over-riding obligations, both under the Stay at Home Direction, as well as for the health, safety and welfare of the Council’s employees, elected members and members of the community under the WHS Act, must (and do) take precedence.
The principal office of the council can be, and should be, closed with immediate effect, without waiting for a resolution from the council, as a governing body, pursuant to section 45 of the Act.
Such administrative action is not only lawful in the circumstances, (and, indeed, required under the Stay at Home Direction) but is also justifiable, reasonable and responsible.
In these circumstances, unless there is a specific delegation to the CEO under section 44 of the Act, we recommend that after taking such measures, a report should be prepared for the consideration of the council at its next meeting, for the purpose of obtaining endorsement of this action.
Given the ongoing uncertainty in relation to these issue, CEO’s may also wish to consider preparing a report for the consideration of the council, with an amended Instrument of Delegation under the Act, which includes a delegation to the CEO under section 45, as amended by the Ministers Public Health Emergency: Public Access and Public Consultation (No 2), delegating the power to the CEO to make decisions regarding the closure of the principal office.
As always, we are here to assist councils navigate their way through these challenging times. Please do not hesitate to contact us if we can assist your council.
If you have any questions, please do not hesitate to contact: