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Bargaining framework supporting guidance

Please note - this is an archived publication.

Introduction

Australian Public Service (APS) Bargaining Framework

The APS Bargaining Framework ('Bargaining Framework') sets out Australian Government policy as it applies to workplace relations arrangements in APS agencies in respect of their APS employees. It provides a framework for the management of workplace relations in the APS consistent with both the broader principles of Australian Government workplace relations policy, and legislative requirements. To this end, the Bargaining Framework operates within the legislative framework of the Fair Work Act 2009 , Public Service Act 1999, and other Commonwealth laws.

The Bargaining Framework balances the workplace interests of the Australian Government with those of APS employees.

The aim of the Bargaining Framework is to implement the Government's workplace relations policy with respect to APS employment, namely to:

  • support the concept of 'one APS' and facilitate mobility across the APS by achieving greater commonality of terms and conditions;
  • ensure fairness and flexibility;
  • promote productivity;
  • provide for sustainable and affordable remuneration arrangements;
  • provide for enterprise agreements, negotiated at the individual agency level, as the principal means of setting terms and conditions of employment for non-Senior Executive Service level employees;
  • enshrine accountability for compliance with the APS Bargaining Framework with individual agencies; and
  • respect and facilitate the role of unions in the workplace.

From time to time, the Australian Public Service Commission (APSC) will issue APSC Circulars to provide information regarding relevant aspects of workplace relations policy and legislation. These circulars, and the former Workplace Relations Advice series, will be made available on www.apsc.gov.au.

This document provides guidance for agencies on the implementation of the Bargaining Framework when making workplace agreements and other workplace arrangements with their employees. It is not a definitive guide to all aspects of the Government's workplace relations policy or federal workplace relations legislation.

This January 2011 edition of the Supporting Guidance replaces the September 2009 edition of the Supporting Guidance to the Australian Government Employment Bargaining Framework in relation to APS employees.

Application of the Bargaining Framework

APS agencies are to apply the Bargaining Framework in regard to employees engaged under the Public Service Act 1999 (Public Service Act).

Australian Government policy is for the Bargaining Framework to apply to enterprise agreements, determinations made under section 24(1) of the Public Service Act and common law agreements. APS agencies are to also ensure that workplace policies and practices are consistent with the APS Bargaining Framework.

APS agencies

The Australian Government requires all APS agencies to comply with the relevant sections of the Bargaining Framework in respect of APS employees.

Non-APS Commonwealth authorities and other government employers

The Australian Government's workplace relations policy for non-APS Commonwealth Authorities and other Australian Government employers, including Members of Parliament Staff, can be found in the Australian Government Employment (Non-APS) Bargaining Framework and its Supporting Guidance. Where an APS agency has dual staffing powers (that is, they employ employees under legislation other than the Public Service Act), the Non-APS Bargaining Framework will apply to the non-APS employees employed at those agencies.

To avoid any doubt, the APS Bargaining Framework and the Non-APS Bargaining Framework do not apply to the Australian Defence Force or Government Business Enterprises (GBEs), although GBEs are encouraged to apply the policy set out in the Non-APS Bargaining Framework where it is appropriate to do so.

Types of workplace arrangements

Enterprise agreement

An enterprise agreement is as defined in the Fair Work Act 2009 (Fair Work Act).

Determination

A determination is a legislative instrument made by an authorised person under section 24(1) of the Public Service Act which sets out terms and conditions. A determination may apply to an individual employee or a group of employees.

Common law arrangement

For the purposes of the Bargaining Framework, a common law arrangement should be a written agreement made between an APS agency and another party, generally, an employee of that agency.

Key links in the Bargaining Framework

Agency heads

Agency heads are responsible for the application of the Bargaining Framework within their respective APS agencies.

Each Agency Head is to:

  • apply the Bargaining Framework in their agencies, consistent with the legislative framework;
  • ensure that all workplace arrangements are consistent with the Bargaining Framework and Australian Government policy, unless specifically agreed by the Special Minister of State for the Public Service and Integrity;
  • engage in good faith with employees and their representatives in negotiating enterprise agreements and making other workplace arrangements;
  • advise the agency Minister of any significant proposed workplace relations initiatives prior to implementation;
  • advise the agency Minister and the Special Minister of State for Public Service and Integrity or the APSC of any workplace matters (potential or actual) which could significantly affect delivery of services and any proposed response

With respect to enterprise agreements, each Agency Head is to:

  • seek the approval of a proposed bargaining position prior to issuing a notice of employee representational rights to employees under the Fair Work Act, in accordance with the processes outlined under Part 1.11;
  • once approval for the proposed bargaining position is obtained from the APSC or the Special Minister of State for the Public Service and Integrity, issue a Notice of Employee Representational Rights to their employees at the commencement of bargaining, consistent with the Fair Work Act;
  • negotiate an enterprise agreement with their non-SES employees (and SES employees where applicable) consistent with the APS Bargaining Framework and the requirements of the Fair Work Act;
  • provide regular updates on bargaining to the APSC;
  • seek the APSC's views on potential disputes prior to initiating Fair Work Australia proceedings or seeking legal advice;
  • ensure the terms of a proposed enterprise agreement are provided to the APSC for an assessment for consistency with the Bargaining Framework, and seek the approval of that proposed enterprise agreement in accordance with the processes outlined under Part 1.11;
  • ensure any inconsistencies between the terms of a proposed enterprise agreement and Bargaining Framework are either:
    1. rectified prior to seeking the approval of agreement from the Special Minister of State for the Public Service and Integrity; or
    2. drawn to the attention of the Special Minister of State for the Public Service and Integrity when requesting the approval of the Minister to proceed;
  • provide the APSC with a copy of the enterprise agreement following final approval from employees.
  • With respect to a determination which applies to a group of employees, Agency Heads are to follow their obligations with respect to enterprise agreements.
  • An exception to this requirement is where a determination is necessary solely to preserve pre-existing terms and conditions immediately following a Machinery of Government change, in conjunction with the machinery of government protections and regulations under the Public Service Act and Public Service Regulations 1999.

Agency Heads are to ensure that any individual arrangements, including determinations or common law arrangements, are consistent with the Bargaining Framework and Australian Government policy.

Agency Heads are also to ensure that relevant data and other information on the application of the APS Bargaining Framework within their agency is provided to the APSC in a timely fashion both regularly and from time to time as requested. Such information may include, but is not limited to:

  • provision of information on the number and terms of individual flexibility arrangements and employment instruments;
  • provision of information about workplace delegates rights protocols and practices;
  • orders made by Fair Work Australia in respect of the agency;
  • documents required under the Fair Work Act, such as the notice of employee representation rights issued by the agency; and
  • data on remuneration, terms and conditions of employment.

Australian Public Service Commission

The APSC is responsible for the development, application and interpretation of the Bargaining Framework.

The APSC is to:

  • publish and maintain the Bargaining Framework in accordance with Government policy;
  • provide APS agencies with information and advice on employment and workplace relations policy, legislation, and the application and interpretation of the APS Bargaining Framework through various means, including the issuing of APSC Circulars from time to time;
  • assess an agency's proposed bargaining position;
  • brief the Special Minister of State for the Public Service and Integrity, as required;
  • assess an agency's proposed enterprise agreement or collective determination and seek approval from the Special Minister of State for the Public Service and Integrity where the agreement is inconsistent with the Bargaining Framework;
  • as part of the briefing process for the Special Minister of State for the Public Service and Integrity, provide APS agencies with written advice on whether a proposed enterprise agreement or determination is consistent with the Bargaining Framework;
  • provide advice on whether any other workplace arrangement complies with the Bargaining Framework;
  • provide information, advice and recommendations on workplace arrangements which represent current best practice across Australian Government employment and are designed to improve the operation and administration of workplace arrangements in the APS, including through the provision, from time to time, of suggested model clauses for inclusion in workplace arrangements;
  • provide information and advice to agencies on specific workplace relations matters, including consistency of workplace arrangements with the Bargaining Framework, where the agency requests;
  • report to the Special Minister of State for the Public Service and Integrity, both regularly and upon request from time to time, on the application of the APS Bargaining Framework, compliance with other Australian Government workplace relations policies such as the provision of facilities to bargaining representatives, and on other workplace arrangements applying in Australian Government employment; and
  • monitor decisions made by Fair Work Australia on matters of interest such as good faith bargaining and seek advice from DEEWR where necessary to enable the provision of advice to agencies on any relevant implications.

Department of Finance and Deregulation (Finance)

The role of Finance is to assess the affordability of APS agreements where proposed wage outcomes are in excess of the Average Annualised Wage Increase (AAWI) parameters outlined under Parts 2 and 3 of this Supporting Guidance.

Finance will:

  • examine proposed increases to remuneration and an agency's financial position to determine whether affordability parameters are met, as required; and
  • provide advice to the APSC and the agency on the affordability of a proposed enterprise agreement as required as part of the assessment process.

Department of Education, Employment and Workplace Relations (DEEWR)

The APSC has a Memorandum of Understanding with the Workplace Relations Legal Group of the Department of Education, Employment and Workplace Relations (DEEWR) and works in partnership with DEEWR on workplace relations legal matters affecting Australian Government employment. In particular, it is important that DEEWR be kept fully informed of legal advice that impacts on the interpretation of the Fair Work Act. Agencies are therefore reminded that, under clause 10 of the Legal Services Directions, copies of such legal advice should be provided to DEEWR in addition to being provided to the APSC.

Fair Work Australia and the Fair Work Ombudsman

Fair Work Australia and the Fair Work Ombudsman do not have a direct role in the application of the Bargaining Framework. However, under the Fair Work Act, Fair Work Australia performs a number of functions relevant to agreement making. These functions include approving enterprise agreements, overseeing right of entry and industrial action, dealing with disputes, and providing assistance and advice about its functions and activities.

Similarly, the Fair Work Ombudsman is responsible for monitoring compliance and investigating breaches of the Fair Work Act and fair work instruments, and providing education, assistance and advice to employees, employers and organisations on the application of legislation and other general workplace relations enquiries.