Circular 2022/4: Making new industrial arrangements and enterprise bargaining during a caretaker period

Published

Making new industrial arrangements and enterprise bargaining during a caretaker period

  1. The following arrangements will apply in respect of making new industrial arrangements. This includes bargaining for new enterprise agreements, remuneration for common law agreements, or considering whether to make a determination providing remuneration increases under the Public Service Act 1999 or other enabling legislation, during the caretaker period.
  2. During the caretaker period, successive governments have followed a series of practices, known as the ‘caretaker conventions’, which aim to ensure that their actions do not bind an incoming government and limit its freedom of action.
  3. 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 as per paragraph 2.3 of the ‘Guidance on Caretaker Conventions 2021’, as published by the Department of the Prime Minister and Cabinet.

The caretaker conventions and Commonwealth workplace relations

  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 any activity that "implements or entrenches a policy, program or administrative structure which is politically contentious".[1]
  3. In light of this, at the commencement of the caretaker period, Agency Heads should review any activities associated with the making of new industrial arrangements. This may include assessing the progress of any enterprise bargaining process or an Agency Head’s decision to make a determination providing remuneration increases, in compliance with the Government’s Public Sector Workplace Relations Policy 2020 (the Policy).
  4. During the caretaker period, agencies may consider it appropriate to avoid taking significant steps in enterprise bargaining. This may include commencing an access period or undertaking a formal enterprise agreement ballot under the Fair Work Act 2009 (FW Act), or making a wages offer in negotiations.
  5. Other more routine steps involved in the enterprise bargaining process or the steps necessary to make a determination providing remuneration increases, may be able to continue. Appendix A outlines the recommended approach for agencies in specific situations.
  6. Internal consultation may also 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 enterprise bargaining.
  7. It may be preferable to avoid proceeding with an enterprise agreement ballot or other significant step in the bargaining process once the caretaker period commences, unless there is a legal or statutory requirement to continue or finalise a particular process.
  8. If a successful enterprise agreement ballot was held before the caretaker period commenced, then the enterprise agreement having been ‘made’ by employees may be progressed for consideration by the Fair Work Commission during the caretaker period, as is legally required under the FW Act.

The role of ministers

  1. Under paragraph 14 of the Policy, exemptions from any provision of the Policy are to be approved by the Minister for the Public Service and the agency’s portfolio Minister.
  2. Agencies should also consider deferring steps in the bargaining process, where these may require advice to, or consultation with, ministers.
  3. Exemptions to parts of the Government’s Policy require ministerial approval and as such cannot be granted during the caretaker period.

The APSC's role during the caretaker period

  1. The Australian Public Service Commission (APSC) will continue to provide feedback and advice to agencies on remuneration and trade-off proposals, draft determinations and draft enterprise agreements against the Policy during the caretaker period.
  2. Consistent with the Policy, the Australian Public Service (APS) Commissioner must approve a proposed enterprise agreement before it is balloted by employees, and approve a draft determination before it is made by an Agency Head.
  3. Agencies may continue to submit draft determinations or draft enterprise agreements to the APSC for the APS Commissioner's approval during the caretaker period. Approvals may be granted in certain circumstances. Further details are at Appendix A.

Common law agreements

  1. Agencies may continue to make common law agreements during the caretaker period where it is appropriate to set terms and conditions using this type of workplace instrument.
  2. The APSC will continue to assess remuneration proposals for common law agreements for compliance with the Policy. Approval of a remuneration proposal for common law agreements however will not be provided until after the caretaker period.

Further information and advice

  1. Should you require any further information or assistance on this matter, please contact your APSC Relationship Manager or contact the workplacerelations@apsc.gov.au mailbox.
  2. Further information on the caretaker conventions, including guidance, is available on the Department of the Prime Minister and Cabinet’s webpage.
  3. This Circular supersedes Circular 2019/1: Agreement making and bargaining during a caretaker period.

Appendix A

Suggested approach during the caretaker period
Scenario Desired approach
REMUNERATION AND TRADE-OFF PROPOSALS
An agency is seeking approval of a remuneration or trade off proposal.
  • The APS Commissioner will not approve remuneration or trade-off proposals during the caretaker period.
DETERMINATIONS
An agency is planning to hold a sentiment survey to determine if employees would support a determination in lieu of bargaining a new enterprise agreement.
  • The agency may continue to educate employees about the prospect of a determination and how the approach differs from bargaining for a replacement enterprise agreement.
  • The agency should consider whether proceeding to conduct a survey of staff during the caretaker period is appropriate.  
  • Deferring the conduct of a survey is likely to be the most appropriate course of action in most circumstances.
An agency is seeking approval of a draft determination.
  • The APS Commissioner will continue to approve draft determinations only providing for remuneration adjustments, where they are compliant with the Policy.
  • For draft determination only providing for remuneration adjustments, a sentiment survey of staff will need to have been completed before the caretaker period commences.
  • The APS Commissioner will not approve draft determinations that contain both remuneration adjustments and other terms and conditions i.e. comprehensive determinations.
ENTERPRISE AGREEMENTS
An agency is seeking approval of a draft enterprise agreement.
  • The APS Commissioner may consider approving a draft enterprise agreement where, prior to commencement of the caretaker period, approval has been obtained for a remuneration proposal and, where applicable, a trade-off proposal.
  • If a draft enterprise agreement is approved by the APS Commissioner in these circumstances, the agency should consider whether commencing an access period or ballot would be consistent with the caretaker conventions. 
The proposed enterprise agreement has been approved under the Policy, but the agency 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 likely to be the most appropriate course of action in most circumstances.
An access period is already underway when election is announced and the Caretaker period commences.
  • The agency should consider whether proceeding with a ballot at the end of the access period is consistent with the caretaker conventions.
  • If an agency determines that a ballot should 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.
An enterprise agreement ballot is underway when election is announced.
  • The agency should continue in accordance with legislative obligations under the FW Act.
An enterprise agreement ballot is successful and Fair Work Commission approval is now required.
  • The agency should continue in accordance with legislative obligations under the FW Act.
EXEMPTIONS
An agency is seeking a full or partial exemption from the Policy or part of the Policy applying to their circumstances.
  • Exemptions cannot be granted as these would require ministerial approval.



[1]Refer to paragraph 5.1, Guidance of on Caretaker Conventions 2021, Department of the Prime Minister and Cabinet, page 4.

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