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Circular 2019/1 - Agreement making and bargaining during a caretaker period

Agreement making and bargaining during a caretaker period

  1. The following arrangements will apply in respect of agreement making, or other workplace arrangements in lieu of bargaining, 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.

Application of Caretaker Conventions

  1. Paragraph 1.6 of the ‘Guidance on Caretaker Conventions 2018’ published by the Department of the Prime Minister and Cabinet identifies that Caretaker Conventions apply to all Commonwealth departments, agencies and other bodies. This includes statutory authorities and government companies.

Bargaining and the Caretaker Conventions

  1. The 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 or workplace arrangements under the Workplace Bargaining Policy 2018 (the Policy).
  4. During the caretaker period, agencies may consider it appropriate to avoid taking significant steps in such processes. This may include holding a ballot, commencing an access period, or signing a determination made under the Public Service Act 1999 to provide general wage increases.
  5. Policy exemptions require ministerial approval and as such should not 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. Agencies should consider deferring steps in the bargaining process which may require advice to ministers until after the caretaker period.
  9. 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.
  10. If a vote has been held before the caretaker period has commenced, the agreement may be lodged with the Fair Work Commission for approval 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, draft agency enterprise agreements and other workplace arrangements against the Policy during the caretaker period.
  2. Consistent with the Policy, the APS Commissioner must have approved a proposed enterprise agreement prior to it being put to a ballot.
  3. The Commissioner will not consider approving remuneration proposals for enterprise agreements, determinations providing wage increases on an expired enterprise agreement or proposed enterprise agreements during the caretaker period.

Determinations

  1. Agency heads should not make determinations under the Public Service Act 1999, or other legislation, as an option in lieu of bargaining during the caretaker period.
  2. However, agencies may continue to submit determinations to the APSC to apply the APS Commissioner’s 12-week rule announced on 30 October 2018.
  3. Agencies may also continue to seek APSC feedback on proposed draft determinations during the caretaker period. Appendix B outlines the recommended approach for agencies in specific situations.

Common law agreements

  1. Agencies may continue to make common law contracts 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.

Issued 11 April 2019.

Appendix A

Suggested approach during the caretaker period in enterprise bargaining.

Bargaining status Suggested approach
Proposed agreement has not been approved under the Policy.

The agency may seek APSC feedback against the Policy.

The Commissioner will not consider approving proposed enterprise agreements  during the caretaker period.

Exemptions cannot be granted, as these would require ministerial approval.

Proposed agreement has been approved under the Policy but is 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 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.

A ballot underway when the election is announced. Continue in accordance with legislative obligations.
A ballot is successful and Fair Work Commission approval is now required. Continue in accordance with legislative obligations.

Appendix B

Suggested approach during the caretaker period when proposing to introduce a determination as an option in lieu of bargaining.

Bargaining status Suggest approach

A draft determination to apply annual wage increases in conjunction with an expired enterprise agreement has not been approved under the Policy.

The agency may seek APSC feedback against the Policy.

The Commissioner will not consider approving remuneration proposals and draft determinations during the caretaker period.

Exemptions cannot be granted, as these would require ministerial approval.

A draft determination to provide annual remuneration increases is approved by the APS Commissioner, but it has not yet been signed by the Agency Head.

The Agency Head should consider whether signing the determination is consistent with the Caretaker Conventions.

Deferring the Agency’s Head approving the draft determination is likely to be the most appropriate course of action.

An enterprise agreement is approved by the Fair Work Commission more than 12 weeks after it was voted up by employees and is eligible for an early first pay increase. The agency may act in accordance with the APS Commissioner’s decision of 30 October 2018.