Circular 2016/1W: Agreement making and bargaining during a caretaker period

Last updated: 09 May 2016

This page is: current

Issued 09 May 2016

  1. The following arrangements will apply in respect of agreement making during the caretaker period.
  2. The caretaker period begins at the time the House of Representatives is dissolved and continues until the election result is clear or, if there is a change of government, until the new government is appointed.

Bargaining and the Caretaker Conventions

  1. Responsibility for observing the Caretaker Conventions rests with agency heads or, in cases where they are involved, with ministers. The application of the conventions in individual cases requires judgement and common sense, informed by the particular context.
  2. The principles and practices associated with the conventions include that government agencies should avoid activities that could "implement or entrench a policy, program or administrative structure which is politically contentious".
  3. In light of this, at the commencement of the caretaker period, agency heads should review any activities to be undertaken towards making a new enterprise agreement under the Bargaining Policy.
  4. During the caretaker period, agencies may consider it appropriate to avoid taking significant steps in the bargaining process. This may include holding a ballot, commencing an access period or making a wages offer.
  5. Policy exemptions require ministerial approval and as such cannot be granted during the caretaker period.
  6. Other more routine steps involved in the process may be able to continue. Appendix A outlines the recommended approach for agencies in specific situations.
  7. Internal consultation may continue during the caretaker period. However, agencies should acknowledge that they are in the caretaker period and explain the implications for the next steps in the bargaining process.
  8. Once the caretaker period commences, unless there is a legal or statutory requirement to proceed with a vote or take another significant step involved in the bargaining process, it may be preferable to defer until after the election. Agencies should consider deferring steps in the bargaining process which may require advice to ministers until after the caretaker period.
  9. If a vote has been held before the caretaker period has commenced, the agreement may be finalised by the Fair Work Commission during the caretaker period.

The APSC's role during the caretaker period

  1. The APSC will continue to provide feedback to agencies on remuneration proposals and draft agency enterprise agreements against the Bargaining Policy during the caretaker period.
  2. Consistent with the Bargaining Policy, the APS Commissioner must approve a proposed enterprise agreement prior to a ballot. Agencies may continue to submit remuneration proposals or agreements to the APSC for the Commissioner's approval during the caretaker period. The Commissioner will consider whether to approve remuneration proposals or agreements on an individual basis, depending on the circumstances.

Common law agreements or determinations

  1. Agencies may continue to make common law agreements or determinations during the caretaker period where it is appropriate to set terms and conditions using this type of workplace instrument.

Further information and advice

  1. Should you require any further information or assistance on this matter, please contact your APSC Relationship Manager.

Appendix A

Suggested approach during the caretaker period
Bargaining status Suggested approach
Proposed agreement has not been approved under the bargaining policy. May seek the Commissioner's approval under the Bargaining Policy.

The Commissioner will consider whether it is appropriate to approve in all of the circumstances, and may decide to defer a decision during the caretaker period.

Exemptions cannot be granted, as these would require ministerial approval.
Proposed agreement has been approved under the Bargaining Policy, yet to commence the access period. The agency should consider whether commencing the access period would be consistent with the Caretaker Conventions.

Deferring commencement of the access period is likely to be the most appropriate course of action in most circumstances.
Access period already underway when election is announced. The agency should consider whether proceeding with a ballot at the end of the access period is consistent with the Caretaker Conventions.

If a ballot will not go ahead, the access period should be terminated.

Terminating the access period and deferring the ballot is likely to be the most appropriate course of action in most circumstances.
Ballot underway when election is announced. Continue in accordance with legislative obligations.
Ballot successful and Fair Work Commission approval now required. Continue in accordance with legislative obligations.