Please note - this is an archived publication.
APS Agencies are to:
1.1 Set out Senior Executive Service (SES) employees' terms and conditions in either:
- determinations made under the Public Service Act 1999 or individual common law arrangements; or
- where a majority of SES officers choose, in an SES enterprise agreement separate to that agency's non-SES enterprise agreement;
1.2 Set out non-SES employees' terms and conditions in one enterprise agreement per agency , other than in exceptional circumstances as approved by the Prime Minister and the Special Minister of State for the Public Service and Integrity, with coverage excluding SES employees except for the following limited cases:
- small agencies where the nature of the work and benefits does not differ considerably between SES and non-SES; or
- defined specialist SES in non-managerial positions;
1.3 Comply with all relevant legislative requirements;
1.4 Facilitate productive workplace relations and collective bargaining in good faith with employees and their representatives;
1.5 Ensure an employee's right to representation in the workplace is respected;
1.6 Apply the right of entry and freedom of association provisions contained in the Fair Work Act 2009 in a fair and reasonable manner;
1.7 Ensure all enterprise agreements, determinations made under the Public Service Act 1999, common law arrangements, and workplace policies and practices are clear, easy to read, and streamlined;
1.8 Seek the inclusion of relevant model clauses, as advised by the Australian Public Service Commission (APSC), in terms and conditions instruments;
1.9 Submit proposed bargaining positions, enterprise agreements and collective determinations to the APSC for assessment prior to seeking Ministerial approval;
1.10 Comply with any instruction issued by the Public Service Commissioner in relation to administering the Bargaining Framework; and
1.11 Obtain Ministerial approval in relation to enterprise agreements and collective determinations.
1.1 Senior Executive Service (SES) terms and conditions
1.1.1 It is Australian Government policy that agencies are to set out the terms and conditions for SES employees and their equivalents in either:
- determinations made under the Public Service Act;
- individual common law arrangements; or
- where a majority of SES officers in an agency choose, in an SES enterprise agreement separate to that agency's non-SES enterprise agreement.
SES enterprise agreement options
1.1.2 Given the different nature of the duties of SES and non SES employees, where a majority of affected SES level employees choose to negotiate an enterprise agreement, it is Government policy that a separate enterprise agreement for SES level employees be negotiated.
1.1.3 A 'majority of SES officers' means either 50 per cent plus one affected SES employees in the agency (or relevant business function where the agency chooses to implement separate enterprise agreements) or, if a vote is conducted, a majority of affected SES employees in the agency who vote.
1.1.4 An 'affected SES employee' means an SES employee who may be covered by the enterprise agreement during its nominal duration.
1.1.5 It is Government policy that a separate enterprise agreement will be made between an agency and SES employees under this option in all cases other than the following:
- small agencies where SES and non-SES level employees have uniform or highly similar functions and conditions; or
- defined specialist SES employees in non-managerial positions.
1.1.6 Agencies considering a single enterprise agreement applicable to both SES and non-SES employees are encouraged to consult with the APSC about the application of these exceptions.
1.1.7 Agencies considering including SES-equivalent classifications (i.e. other classifications described in Groups 9-11 of the Public Service Classification Rules 2000) in an otherwise non-SES enterprise agreement should seek the agreement of the APSC to do so before proceeding.
SES individual arrangement options
1.1.8 Where no applicable enterprise agreement is in place in an agency, SES employees' terms and conditions of employment will remain subject to all applicable minimum standards contained in a relevant award (such as the APS Award 1998) and relevant legislation.
1.1.9 Agencies should be conscious that determinations and common law arrangements may be more limited in their operation than enterprise agreements (for instance, they must comply in every respect with the conditions of an applicable award other than where an exemption for high income earners applies, whereas a enterprise agreement can, subject to the Better Off Overall Test, alter those conditions).
1.1.10 When using common law arrangements, APS agencies must include provisions which:
- allow the common law arrangement to be overridden by any subsequent s 24(3) determination; and
- include dispute resolution arrangements.
1.1.11 Agencies should note that Fair Work Australia has no capacity to hear and determine disputes in relation to common law arrangements (other than in relation to a safety net contractual entitlement outlined in ss 541 & 542 of the Fair Work Act). Agencies should seek advice from the APSC about options for dispute resolution arrangements.
1.1.12 APS agencies should note that a determination cannot be used to set salary for superannuation purposes in the Commonwealth Superannuation Scheme (CSS), the Public Sector Superannuation Scheme (PSS) and the Public Sector Superannuation Accumulation Plan (PSSAP) as a determination is not considered to be an 'agreement' for the purposes of those schemes. Accordingly, a determination cannot provide that an employee's salary for superannuation purposes is anything other than the default treatment of salary for superannuation purposes under the relevant scheme's rules and legislative requirements. Should an agency and the relevant employee wish to alter the employee's salary for superannuation purposes; a separate common law arrangement will be required for this purpose.
1.1.13 Further information on the use of determinations and common law arrangements is available for agencies from their APSC client contact team
1.1.14 As the issues associated with determinations and common law arrangements will vary on a case by case basis, agencies are invited to contact the APSC for further advice.
Existing SES employees' Australian Workplace Agreements (AWAs)
1.1.15 In accordance with the Government's workplace relations policy all existing workplace agreements, including Australian Workplace Agreements, will continue to operate until they are terminated or replaced in accordance with the provisions of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009.
1.1.16 Further information on the termination or replacement of existing workplace agreements is available for agencies from the APSC.
1.2 Non-SES employees' terms and conditions
1.2.1 It is Australian Government policy that terms and conditions for non-SES employees be negotiated separately by each agency in an enterprise agreement made under the Fair Work Act.
One non-SES enterprise agreement per agency
1.2.2 It is Australian Government policy that agencies should seek to cover all of their non-SES employees in one enterprise agreement per agency, other than in exceptional circumstances with the agreement of the Prime Minister and the Special Minister of State for the Public Service and Integrity.
1.2.3 Agencies considering multiple enterprise agreements to accommodate distinct groups within the agency should therefore consult with the APSC in the first instance to determine whether the proposed arrangements are consistent with the APS Bargaining Framework.
1.2.4 While there are some distinct operational groups where it is appropriate to apply separate terms and conditions (for example, groups with specialist skills differentiated from the broader agency to which they are attached), these cases would be the exception rather than the norm. Agencies are not to enter into multiple collective agreements where doing so would lead to a harsh or oppressive result for the employees concerned, or for the purposes of providing inferior terms and conditions to any group of employees.
Determinations and common law agreements
1.2.5 For non-SES employees, a determination or a common law agreement is not a satisfactory alternative to an enterprise agreement to set terms and conditions in the medium to long term. However, it may be necessary for short-term, interim periods (such as following the establishment of a new agency) to use a determination or common law agreements to set terms and conditions of employment while an enterprise agreement is negotiated. Agencies who consider that they would not be able to conclude negotiations for an enterprise agreement within twelve months should contact the APSC to discuss their options.
1.2.6 Agencies who wish to provide for terms and conditions for employees in addition to those available under an enterprise agreement should utilise a flexibility term, as described under Part 1.3, rather than a determination or common law agreement.
1.2.7 Further information on the use of determinations and common law agreements is available for agencies from the APSC.
Existing non-SES employees' AWAs
1.2.8 In accordance with the Government's workplace relations policy, all existing workplace agreements, including Australian Workplace Agreements, continue to operate until they are terminated or replaced in accordance with the Fair Work Act or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 as appropriate.
1.2.9 Further information on the termination or replacement of existing workplace agreements is available for agencies from the APSC.
1.3 Compliance with all relevant legislative requirements
1.3.1 All workplace arrangements must comply with all relevant legislative requirements, including but not limited to provisions relating to employee representation and good faith bargaining. Key employment-related legislation affecting APS agencies includes the:
- Public Service Act 1999 ;
- Fair Work Act 2009 ;
- Fair Work (Transitional Provisions and Consequential Amendments) Act 2009;
- Long Service Leave (Commonwealth Employees) Act 1976;
- Maternity Leave (Commonwealth Employees) Act 1973;
- Paid Parental Leave Act 2010; and
- Privacy Act 1988.
1.3.2 In addition to the above, agencies may also be subject to other agency-specific legislation containing employment-related provisions.
1.3.3 In particular, agencies should be aware of the following requirements:
Notice of employee representational rights
1.3.4 At the commencement of bargaining, employees must be provided with a notice of employee representational rights as detailed at s 174 of the Fair Work Act. This notice must be provided as soon as practicable, and not later than 14 days, after the notification time for the agreement. In the context of APS employment, the notification time will generally be the time where the agency agrees to bargain, or initiates bargaining, for the agreement.
1.3.5 The prescribed notice can be found at Attachment A. Agencies should note that the prescribed notice cannot be amended other than as provided for in the notice.
1.3.6 This notice specifies that the employee may appoint a bargaining representative to represent the employee:
- in bargaining for the agreement; and
- in a matter before Fair Work Australia that relates to bargaining for the agreement.
1.3.7 The notice also explains that:
- if the employee is a member of an employee organisation that is entitled to represent the industrial interests of the employee in relation to work that will be performed under the agreement; and
- the employee does not appoint another person as his or her bargaining representative for the agreement;
- the organisation will be the bargaining representative of the employee.
1.3.8 The notice must also explain the effect of s 178(2)(a) of the Fair Work Act (which deals with giving a copy of an instrument of appointment of a bargaining representative to an employee's employer).
1.3.9 Agencies should provide the APSC with a copy of the notice of employee representational rights given to employees at the time it is distributed, and advise the APSC of the composition of bargaining units as soon as practicable.
1.3.10 Under the Fair Work Act, an employee can appoint a bargaining representative for a proposed enterprise agreement. Where an employee is a member of a union, that union will be taken to be their bargaining representative unless the employee appoints another person or revokes the status of the union as their representative. Where an employee appoints another person or revokes the status of the union as their representative, the Fair Work Act requires that this be done in writing.
1.3.11 As with other employers under the Fair Work Act, agencies are not permitted to seek control of, or influence over, the appointment of bargaining representatives. Agencies should also note that under the Fair Work Regulations, a bargaining representative of an employee must be free from control by the employee's employer or another bargaining representative and free from improper influence from the employee's employer or another bargaining representative.
1.3.12 There is no limit to the number of bargaining representatives who may take part in negotiations for a new enterprise agreement. However, in cases where the bargaining process is not proceeding efficiently or fairly because there are multiple bargaining representatives (s 229(4)(a)(ii) of the Fair Work Act), Fair Work Australia may make a bargaining order. Agencies considering applications for such an order must consult with the APSC in the first instance.
1.3.13 In addition to the obligation to provide the APSC with a copy of the notice of employee representational rights at the time it is distributed, and advise the APSC of the composition of bargaining units as soon as practicable, agencies must also advise the APSC that they have commenced bargaining and provide periodic updates as to the status of the bargaining process.
Good faith bargaining
1.3.14 The Fair Work Act outlines legal requirements which must be met by all bargaining representatives in relation to good faith bargaining.
1.3.15 It is also a matter of longstanding Australian Government policy that agencies will bargain with their employees in good faith.
1.3.16 These requirements are further discussed under Part 1.4 below.
1.3.17 The Fair Work Act enshrines the right of employees to be represented and provides that every employee is free to decide whether or not to join and be represented by a union in the workplace, including in bargaining.
1.3.18 It is unlawful for anyone to try to stop an employee exercising this choice by threats, pressure, discrimination or victimisation.
1.3.19 Employees have the right to seek advice, assistance and representation from their union in the workplace. Workplace delegates will be able to represent their colleagues in the workplace.
1.3.20 Under the Fair Work Act, agreements must not contain unlawful terms. A term of an enterprise agreement will be an unlawful term if it:
- is a discriminatory term;
- is an objectionable term;
- would be inconsistent with the unfair dismissal provisions of the Fair Work Act;
- would be inconsistent with the industrial action provisions of the Fair Work Act;
- would be inconsistent with the right of entry provisions of the Fair Work Act; or
- would result in an exercise of State or Territory occupational health and safety rights in a way that is inconsistent with the right of entry provisions.
Matters not pertaining to the employment relationship
1.3.21 Matters which do not pertain to the employer-employee relationship or employer-union relationship cannot be enforced in an agreement, and protected industrial action during bargaining cannot be taken in relation to such a matter.
Clauses required by legislation
Nominal expiry date
1.3.22 An enterprise agreement must specify a nominal expiry date of not more than four years after the day on which Fair Work Australia approves the agreement (s 186(5) of the Fair Work Act).
1.3.23 The Australian Government recommends that, subject to meeting the good faith bargaining requirements of the Fair Work Act, APS agencies seek to include a common NED of 30 June 2014 in enterprise agreements.
1.3.24 The Fair Work Act requires all enterprise agreements to include a consultation term relating to major workplace change where the change is likely to have a significant effect on employees, and that allows for the representation of those employees for the purposes of consultation. Where a consultation term is not included in an enterprise agreement, the term provided in regulation 2.09 of the Fair Work Regulations 2009 is taken to be part of the enterprise agreement (s.205(3)) of the Fair Work Act).
1.3.25 In addition to meeting these minimum requirements, agencies may wish to also incorporate in their consultation term the other routine consultation arrangements or processes within their agency. This may include arrangements regarding the establishment and operation of the agency's consultative committees and consultation on matters affecting employees or the workplace. .
1.3.26 In developing a consultation term, APS agencies may, subject to negotiations with bargaining representatives, incorporate the term provided at Fair Work Regulation 2.09, adopt a recommended model term circulated by the APSC, or otherwise include their own consultation term, subject to that term meeting the requirements of the Fair Work Act.
Individual flexibility arrangements
1.3.27 The Fair Work Act requires all enterprise agreements to include a flexibility term which enables the effect of an enterprise agreement to be varied to meet the genuine needs of an individual employee and their employer. Where a flexibility term is not included in an enterprise agreement, the term provided in regulation 2.08 of the Fair Work Regulations 2009 is taken to be part of the enterprise agreement (s.202(4) of the Fair Work Act).
1.3.28 In keeping with the Fair Work Act, flexibility arrangements must meet the following requirements:
- An individual arrangement is to only include things that would be permitted in an enterprise agreement, and not include things that would be unlawful in an enterprise agreement;
- The arrangement must be genuinely agreed by the employee and must result in the employee being better off against their enterprise agreement than if they had not entered into an individual flexibility arrangement;
- The arrangement is to be agreed to by the employee and employer and not required to be approved, or consented to, by another person (except where the employee is under 18 where a parent is to sign);
- The arrangement is to include the provisions by which either party (or both) can terminate the arrangement; and
- A copy of the individual arrangement is to be given to employee within 14 days of being agreed to.
1.3.29 Consistent with the requirements of the Fair Work Act, an employee and employer may agree in an individual flexibility arrangement to trade off certain terms and conditions of employment as specified in the agency's flexibility term, providing the employee is better off against their enterprise agreement than if they had not entered into an individual flexibility arrangement. However, the terms and conditions in a flexibility arrangement are not to undercut legislated minima, such the National Employment Standards. For example, an arrangement is not to provide less than the minimum entitlement to annual leave in exchange for additional remuneration. Similarly, as a matter of Government policy, personal/carer's leave entitlements are not to be traded away.
1.3.30 In developing a flexibility term, APS agencies may, subject to negotiations with bargaining representatives, incorporate the term provided at Fair Work Regulation 2.08, adopt a recommended model term circulated by the APSC, or otherwise include their own flexibility term, subject to that term meeting the requirements of the Fair Work Act.
1.3.31 An agency's flexibility term is expected to be the sole mechanism for providing additional or different terms and conditions to those otherwise available through an enterprise agreement for individual non-SES employees. Individual determinations made under the Public Service Act or supplementary common law arrangements for non-SES employees are not to be used other than in exceptional circumstances, and only after consultation with the APSC.
1.3.32 Agencies are required to provide the APSC with details regarding the number and terms of individual flexibility arrangements entered into, as requested from time to time.
Dispute resolution clause
1.3.33 All enterprise agreements must contain a procedure that allows Fair Work Australia, or another person who is independent of the employers, employees, or employee organisations covered by the Agreement, to settle disputes (s 186(6) of the Fair Work Act).
1.3.34 Other collective arrangements in the APS, such as collective determinations made under the Public Service Act, should include a dispute resolution clause on the same basis as those required in enterprise agreements under the Fair Work Act.
1.3.35 It is Australian Government policy that all workplace arrangements in the APS must include procedures which facilitate the resolution of disputes at the workplace level in the first instance. Only in cases where a dispute cannot be resolved through workplace-based processes should it be referred to an external party for assistance with resolution.
1.3.36 Where a dispute cannot be resolved at the workplace level and requires external assistance, dispute resolution arrangements should provide for initial external assistance to take the form of mediation or conciliation. Should that be unsuccessful, dispute resolution arrangements should provide for access to arbitration by Fair Work Australia as the final avenue for resolution following exhaustion of all other options.
1.3.37 It is Government policy that the resolution of disputes in the APS should occur in good faith and therefore follow the same principles as the good faith bargaining requirements detailed at s 228 of the Fair Work Act.
1.3.38 The Fair Work Regulations contain a model clause for dispute resolution which meets the requirements outlined above. When developing an enterprise agreement or collective determination, agencies may, subject to negotiations with bargaining representatives, incorporate this model dispute resolution clause, adopt a recommended model clause circulated by the APSC, or otherwise include their own dispute resolution clause subject to that term meeting the requirements of the Fair Work Act and the policy settings outlined above.
1.3.39 Agencies may also wish to consider the following issues if drafting their own clause:
- To be cautious in considering any proposal to broaden the scope of the clause beyond matters that arise under the enterprise agreement or the NES; and
- To be clear about the role of Fair Work Australia. The options available to Fair Work Australia in the model term in FW Regulation 6.01 are an appropriate guide to use. Where Fair Work Australia is expected to deal with a dispute by arbitration, this must be expressly stated in the dispute resolution term to give them the authority to do so.
1.4 Facilitate productive workplace relations and collective bargaining in good faith
1.4.1 Agencies will facilitate productive workplace relations with employees and their representatives. Agencies will work with employees and their representatives to ensure that APS agencies have workplace relations which value communication, consultation, cooperation and input from employees.
Good faith bargaining
1.4.2 It is a requirement of the Fair Work Act that agencies will bargain with their employees in good faith.
1.4.3 Agencies will observe the right of employees to appoint their own bargaining representatives to represent them in bargaining for a proposed enterprise agreement. If employees are union members and the union is entitled to represent the industrial interests of the employees in relation to their work, then agencies will recognise the unions as the bargaining representatives for those employees.
1.4.4 Chapter 2, Part 2-4, Divisions 3 and 8 of the Fair Work Act provide the legislative framework for appointing bargaining representatives and negotiating with bargaining representatives, including defining good faith bargaining.
1.4.5 The principles of good faith bargaining apply to all bargaining representatives (defined in the Fair Work Act as employers, employee organisations – provided an employee is a member and union can represent their industrial interests, and any other person appointed as a bargaining representative by an employee or employer).
1.4.6 If a bargaining representative considers that negotiations are not proceeding in good faith, a bargaining representative may refer the matter to Fair Work Australia. In determining matters related to good faith bargaining, Fair Work Australia may, on application by a bargaining representative, make a bargaining order or a serious breach declaration directing the parties to undertake certain courses of action as it sees fit.
1.4.7 Agencies considering referring a good faith bargaining matter to Fair Work Australia are to consult with the APSC before any referral or request is made.
1.4.8 Good faith bargaining includes:
- attending, and participating in, meetings at reasonable times;
- disclosing relevant information (other than confidential or commercially sensitive information) in a timely manner;
- responding to proposals made by other bargaining representatives for the agreement in a timely manner;
- giving genuine consideration to the proposals of other bargaining representatives for the agreement, and giving reasons for the bargaining representative's responses to those proposals;
- refraining from capricious or unfair conduct that undermines freedom of association or collective bargaining; and
- recognising and bargaining with other bargaining representatives for the agreement.
1.4.9 Good faith bargaining requirements do not require:
- a bargaining representative to make concessions during bargaining for the agreement; or
- a bargaining representative to reach agreement on the terms that are to be included in the agreement.
Consultation on other workplace arrangements
1.4.10 Agency Heads will genuinely consult with employees and their representatives in good faith in relation to other workplace arrangements, such as determinations.
1.5 Respecting employees' right to representation
1.5.1 Agencies should ensure an employee's right to representation is respected. The role of workplace representatives, including union delegates and employee representatives, is to be respected and facilitated.
1.5.2 An individual employee's choice to be represented must be respected by all parties in the workplace. Where an employee elects to be a member of a union, their agency must respect the employee's right to deal on workplace matters through their representative.
1.5.3 It is the Government's expectation that agencies and employee representatives, including unions, will work together collaboratively and professionally.
1.5.4 In accordance with longstanding practice, agencies are to provide the facility for an employee to have their union membership fees deducted from their pay upon the request of the employee.
Facilities for bargaining representatives
1.5.5 In order to facilitate a collaborative and professional relationship between agencies, unions and bargaining representatives across the APS, Attachment B sets out the facilities which agencies are to provide to unions and other bargaining representatives in the context of negotiating enterprise agreements.
1.5.6 Agencies are advised that the specific facilities outlined at Attachment B are to be considered the minimum standard. It is not intended that any existing facilities provided be reduced where they exceed the minima. Where Agencies consider that the provision of facilities further to those provided under existing protocols, or custom or practice, is likely to enhance or expedite the bargaining process, they are encouraged to consult with employees and their representatives on any such provision.
Ongoing facilities for union delegates
1.5.7 Agencies are encouraged to enter into discussions with employees and their representatives in order to facilitate arrangements for workplace representatives that take into account the agency and the employee representatives' specific needs.
1.5.8 To best facilitate this, agencies should develop a framework, similar to that provided at Attachment C, in consultation with all relevant unions with coverage of that agency's employees which outlines responsibilities and obligations in relation to delegates' rights within the workplace.
1.5.9 It is recommended that each agency develops, in consultation with unions, a timely process to resolve issues arising from these arrangements.
1.5.10 Agencies should review their existing frameworks, developed under the 1 September 2009 edition of the Bargaining Framework, to ensure consistency with the updated requirements.
Facilities for union communication with employees
1.5.11 Agencies will seek to facilitate official union communication with employees by means including:
- The use of email as a means of communicating with all employees. Delegates have the right to email employees in their workplace as set out in the Principles for Workplace Delegates at Attachment C, subject to the reasonable use of this right. Agencies which currently provide superior arrangements should continue to do so. Agencies should consider requests from unions for all-staff emails and seek to facilitate these requests where possible, subject to operational requirements;
- The provision of notice boards or other designated areas for the display of union information outside of public contact areas. These notice boards may be physical, or provided via an agency Intranet site or similar means if it is more practicable to do so;
- Other means of information sharing, including written materials, electronic billboards, and access to websites;
- Providing facilities for paid or unpaid group or individual meetings between employees and their representatives.
1.5.12 The provisions described above represent minimum standards. It is in no way intended to reduce rights under existing protocols, or custom and practice. In this context, agencies should note that there is no expectation that any existing arrangements should be reduced where those arrangements exceed the minima. Where Agencies consider that the provision of facilities further to those provided under existing protocols, or custom or practice, is likely to enhance or expedite the bargaining process, they are encouraged to consult with employees and their representatives on any such provision.
1.5.13 The APSC will periodically ask agencies to report on the implementation of delegates' rights frameworks.
1.6 Application of the right of entry and freedom of association provisions of the Fair Work Act in a fair and reasonable manner
1.6.1 Agencies should apply the right of entry and freedom of association provisions of the Fair Work Act in a fair and reasonable manner.
1.6.2 The Government recognises the legitimate role played by unions in the workplace, including the rights and obligations provided for under legislation. The Government recognises the legitimate role of unions to act on behalf of their members and for the benefit of workers and to organise and bargain collectively.
1.6.3 It is Australian Government policy that agencies should facilitate employee access to their unions, or other representatives, in the workplace in a fair and reasonable way. This includes the provision of information to employees by their representatives.
1.6.4 The Government expects that all arrangements will take into account the specific circumstances of an agency and will not prejudice the efficient operation of, or service provision by the agency.
1.7 Ensuring clear, easy to read, streamlined instruments
1.7.1 Enterprise agreements may include as much or as little detail as agreed between agencies and bargaining representatives, subject to satisfying the requirements of the Fair Work Act.
1.7.2 However, as a general principle, it is Australian Government policy that APS enterprise agreements, determinations, common law agreements, and workplace policies and practices be clear, easy to read, and streamlined in order to maximise their accessibility for all APS employees.
1.7.3 The terms of enterprise agreements should facilitate ongoing productivity initiatives and the capacity to meet changing and evolving business needs in a fair and reasonable manner.
1.8 Seek the inclusion of relevant model clauses in terms and conditions instruments
1.8.1 When developing enterprise agreements and other workplace arrangements, agencies should actively consider how those instruments can better support the concept of 'one APS', as outlined in Ahead of the Game: Blueprint for the Reform of Australian Government Administration.
1.8.2 To assist agencies in doing so, from time to time the APSC will circulate recommended terms and conditions (which may include specific entitlements, or ranges of entitlements) which agencies may seek to include in enterprise agreements and other instruments through good faith bargaining
1.8.3 Model clauses and other advice on specific entitlements issued by the APSC will serve as guidelines only. They are not intended to prevent agencies from bargaining employment terms and conditions in good faith or to limit agencies' capacity to do so. To this end, a failure to achieve all of the recommended terms and conditions, or incorporate suggested model clauses, through a good faith bargaining process shall not be cause to determine that a proposed agreement cannot proceed or is inconsistent with the Bargaining Framework.
1.9 Submit proposed bargaining positions, enterprise agreements and collective determinations to the APSC for assessment
1.9.1 Agencies are to provide proposed enterprise agreements and collective determinations to the APSC to be assessed against the APS Bargaining Framework and the recommended terms and conditions. The APSC in assessing agreements aims to promote consistency with Australian Government workplace relations policy.
1.9.2 This requirement also applies to an agency's proposed bargaining position, which must be assessed by the APSC before the agency issues of a notice of employee representational rights.
1.9.3 The APSC will endeavour to identify potential non compliance with legislative requirements during formal assessments of enterprise agreements and where an agency has requested assessment of other workplace arrangements.
1.10 Comply with any instruction issued by the APS Commissioner in relation to administering the APS Bargaining Framework
1.10.1 Consistent with the responsibility for the APS Bargaining Framework and broader APS employment and workplace relations matters, the Commissioner may issue circulars or other instructions to agencies regarding the administration, interpretation, implementation, or application of the APS Bargaining Framework from time to time. These circulars or other instructions may be communicated broadly, or provided to a particular agency in the context of that agency's own circumstances.
1.10.2 These instructions may include requests to provide data or other information to assist the APSC in discharging its responsibilities. As has previously been the case, information to be collected from agencies will include salary, performance pay, characteristics of individual arrangements, and other key terms and conditions at the discretion of the APSC.
Industrial disputes and related matters
1.10.3 Agencies should inform their Minister and the APSC at the earliest possible time where industrial action, either protected or unprotected, is being engaged in, threatened, impending, or probable.
1.10.4 Agencies should also inform their Minister, the Special Minister of State for the Public Service and Integrity, and the APSC at the earliest possible time where they become involved in matters before Fair Work Australia or in any court matter that is of a workplace relations nature.
APSC assistance in dispute mediation
1.10.5 The APSC may be able to assist in the mediation of disputes at the request of an agency where circumstances warrant external assistance. Agencies wishing to utilise this option are encouraged to contact the APSC to discuss options for assistance.
1.11 Obtain Ministerial approval in relation to enterprise agreements and collective determinations
Approval of proposed bargaining positions
1.11.1 Agencies are 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.
1.11.2 To better support the concept of 'one APS', agencies should seek to include recommended terms and conditions in enterprise agreements and other instruments as outlined under Part 1.8 above. Accordingly, where an agency's proposed bargaining position is in line with recommended terms and conditions, the APSC will certify on behalf of the Special Minister of State for the Public Service and Integrity that the proposed bargaining position is consistent with the Bargaining Framework and recommended terms and conditions.
1.11.3 Where an agency's proposed bargaining position is not in line with the Bargaining Framework and/or the recommended terms and conditions, approval from the Special Minister of State for the Public Service and Integrity is required.
1.11.4 Agencies will be required to outline their business case as to how they intend to move towards the recommended terms and conditions, or otherwise why they cannot do so.
1.11.5 The involvement of the agency's Minister in this process is a matter for the agency to discuss with its Minister. However, it is the Government's expectation that, as a minimum, the Agency Head would clear a proposed bargaining position before it is provided to the APSC.
Approval of proposed enterprise agreements
1.11.6 Agencies are to seek the approval of the Special Minister of State for the Public Service and Integrity of a proposed enterprise agreement ahead of putting any such agreement to staff vote.
1.11.7 Where the content of a proposed enterprise agreement has not deviated from the approved bargaining position as outlined above, and the proposed agreement is otherwise consistent with the Bargaining Framework, the APSC will certify on behalf of the Special Minister of State for the Public Service and Integrity that the proposed enterprise agreement is consistent with the Bargaining Framework and recommended terms and conditions.
1.11.8 Where the content of a proposed enterprise agreement has deviated from the approved bargaining position as outlined above, and/or the proposed agreement is otherwise inconsistent with the Bargaining Framework, direct approval from the Special Minister of State for the Public Service and Integrity is required. In these cases, agencies will be required to provide an explanation as to why deviations have occurred or provisions inconsistent with the Bargaining Framework and/or recommended terms and conditions are proposed.
1.11.9 The involvement of the agency's Minister in this process is a matter for the agency to discuss with its Minister. However, it is the Government's expectation that, as a minimum, the Agency Head would clear a proposed enterprise agreement before it is provided to the APSC.
Approval for exceptional circumstances
1.11.10 There are a number of situations outlined in this Supporting Guidance where approval is required to deviate from the Bargaining Framework on the basis of exceptional circumstances. Where approval for any exceptional circumstances matters is required outside of the above bargaining position and agreement approval processes (for example, because a matter has arisen during the course of bargaining), agencies should brief their Minister to write to the Special Minister of State for the Public Service and Integrity seeking approval of the relevant matters.
Issues arising in the course of negotiations
1.11.11 In addition, agencies should inform the APSC where significant issues arise during the course of negotiations which could substantially alter the outcome of the bargaining process. Where necessary, agencies may seek approval from the Special Minister of State for the Public Service and Integrity should they wish to alter their bargaining position during the course of negotiations.