Part 2 Non-APS Policy

Section 1 – General

Introduction

57. The Non-APS Policy sets out Australian Government Policy as it applies to workplace arrangements with Commonwealth public sector employees employed under legislation other than the Public Service Act 1999 (non-APS employees).
58. This Section applies to non-APS agencies, except to the extent an agency is covered by Part 1.
59. An agency will remain subject to the Australian Government Public Sector Workplace Relations Policy 2023 (2023 Policy) until its bargaining process concludes if:
    1. the agency has not bargained an agreement under the 2023 Policy, and
    2. the agency commences bargaining for a new agreement by 1 July 2026, and
    3. the APSC has not advised the agency that the Public Sector Workplace Relations Policy 2026 applies.
60. In this Policy,‘Workplace arrangement’ means an enterprise agreement, common law arrangements, or a determination made under an agency’s relevant enabling legislation.

Objectives and agency responsibilities

61. The Government aims to position the Commonwealth as a model employer and employer of choice.
62. The Government is committed to providing pay increases to employees which are underpinned by productivity growth and delivered through fair and genuine negotiations between employers, employees, and unions.
63. Non-APS agencies should put in place workplace arrangements that facilitate the delivery of government services to the community. Workplace arrangements should provide the operational flexibility required by the agency.
64. Workplace arrangements should be simple, clear and easy to read.
65. When formulating proposed workplace arrangements (including adjustments to remuneration and conditions), agencies must have regard to:
    1. the Commonwealth Service-Wide Bargaining position or the APS Statement of Common Conditions
    2. their relevant modern award
    3. the Principles and objectives of non-APS bargaining, and
    4. the Government’s expectations expressed through APSC circulars and APSC guidance documents as issued from time to time.
66. Agencies are responsible for ensuring that their workplace arrangements, and workplace relations policies and practices are consistent with the Non-APS Policy and meet all legislative obligations.

Application

General

67. The Non-APS Policy applies to all non-APS Commonwealth entities, Government Business Enterprises, companies and Members of Parliament Staff (‘agencies’).
68. The Non-APS Policy does not apply to the Australian Defence Force, the High Court of Australia or agencies that engage staff exclusively in accordance with the Public Service Act 1999 (APS Agencies) except for Defence Housing Australia.
69. Where an APS agency has dual staffing powers (that is, they can employ employees under the Public Service Act 1999 and legislation other than the Public Service Act 1999), the non-APS Policy will apply to non-APS employees employed in those agencies. Where an APS agency with dual staffing powers is seeking to cover APS and non-APS employees under the same enterprise agreement, the APS Policy will apply to the negotiation of that enterprise agreement.
70. Exemptions to the Non-APS Policy, in whole or in part, will only be considered in exceptional circumstances. An application for exemption must be assessed by the APSC and is subject to endorsement from the agency’s portfolio Minister and approval from the Minister for the Public Service.

Limited coverage agencies

71. The following agencies (limited coverage agencies) are encouraged to apply the Non-APS Policy to the extent practicable, commensurate with their commercial and competitive circumstances:
    1. Government Business Enterprises
    2. Public Non-financial Corporations
    3. Public Financial Corporations, and
    4. entities exempt, or partially exempt, from section 22 of the Public Governance, Performance and Accountability Act 2013 (the Australian National University (ANU), the Australian Broadcasting Corporation (ABC) and Special Broadcasting Service Corporation (SBS)).
72. Before commencing negotiations, limited coverage agencies and companies are to consult the APSC and provide a summary of their bargaining position.
73. Limited coverage agencies and companies should engage with their portfolio Minister, shareholder Minister (if applicable) and the APSC on matters related to enterprise bargaining, industrial action or the making of other workplace arrangements.
74. The separate approval requirements at clauses 103 to 104 do not apply to limited coverage agencies.

Workplace arrangements

75. Agencies should implement workplace arrangements that enable sustainable, high performing public sector workplaces, and encourage principles that respect and facilitate the role of employee representatives, workplace union delegates, and other union officials.
76. Workplace arrangements must not allow for the cashing out of personal/carers’ leave.
77. Long service leave must be consistent with legislative requirements.
78. Workplace arrangements should facilitate support for the release of Defence Reservists for peacetime training and development.
79. Workplace arrangements are to incorporate family and domestic violence support. Agencies are encouraged to provide the maximum support available for employees affected by family and domestic violence, noting the privacy and safety of impacted employees is paramount.
80. Non-APS agencies are encouraged to recognise paid personal leave accruals where an employee moves to a non-APS agency from an APS agency or other Commonwealth entity.
81. Non-APS agencies are encouraged to facilitate recognition of annual leave accruals where an employee moves from an APS agency or other Commonwealth entity, in circumstances where the employee has made a request and the leave has not been paid out.
82. Workplace arrangements must not enhance existing redundancy, redeployment and reduction entitlements unless otherwise advised by the APSC. To avoid double-dipping on redundancy entitlements, workplace arrangements should include a mechanism that will reduce a retention period by the equivalent number of weeks that an eligible employee would be entitled to under the National Employment Standards (NES).
83. Workplace arrangements must not be amended to reduce ordinary hours of work to less than 37.5 hours per week.
84. Agencies must not increase superannuation contribution rates beyond the default Commonwealth superannuation fund rate under the Public Sector Superannuation Accumulation Plan (currently 15.4 per cent).
85. Workplace arrangements must not permit an employee to advance through a classification or broadband pay scale if they have not achieved at least a satisfactory (or equivalent) level of performance.

Changes to remuneration and conditions

86. Agencies may make remuneration and conditions adjustments within Government parameters, as advised by the APSC.
87. Changes to remuneration and conditions are to be affordable and funded from within existing agency budgets, without the redirection of programme funding.
88. Remuneration and conditions adjustments must not be funded through reductions in output or services, or increases in fees, charges, levies, or similar income sources beyond ordinary indexing practices.
89. Remuneration increases are to apply prospectively.

Industrial disputes

90. Agencies must consult with the APSC if there are significant industrial issues or proceedings at the workplace level. This includes:
    1. applications or proceedings in the Fair Work Commission in relation to bargaining
    2. emerging or actual industrial action
    3. significant or collective disputes arising under the terms of an enterprise agreement
    4. disputes about the interpretation or application of a Common Condition the agency has adopted.
91. Agencies must consult with the APSC on legal advice concerning a Common Condition in accordance with guidance issued by the APSC from time to time.

Section 2 – Enterprise agreements and collective workplace arrangements

General

92. This section applies to non-APS agencies and their employees except:
    1. an agency covered by clause 71
    2. an agency that has been approved to participate in Part A service-wide bargaining, covered by Part 1 of this Policy
    3. an agency covered by section 3.
93. Non-APS agencies are encouraged to bargain with their non-SES (or equivalent) employees to replace enterprise agreements in the lead up to their nominal expiry date, subject to clause 96.
94. Agencies must not put in place determinations in lieu of bargaining for a collective agreement. The APS Commissioner may approve determinations being made in special circumstances.
95. Enterprise agreements and comprehensive determinations are generally to be 3 years in duration. Approval for an enterprise agreement or comprehensive determination of a shorter duration may be sought from the APS Commissioner.
96. An Agency must not put in a place a new comprehensive collective arrangement that commences before 1 March 2027. The APSC will issue guidance about interim arrangements.

Principles and objectives of non-APS bargaining

Model employer

97. Bargaining conduct and outcomes will reflect best practice and recognise the role of the Government in setting the high standard of employer behaviours it champions. This includes exemplifying model behaviour in bargaining through demonstrated respect for the good faith bargaining requirement in the FW Act.

Attraction and Retention

98. Workplace arrangements should assist in attracting and retaining the best and brightest employees to serve the Australian community.

Administrative Efficiency, Productivity and Delivery

99. Workplace arrangements should enable increased administrative efficiency, productivity and support delivery of public services to Australian people and business. This may include increased commonality with the APS.

Fairness and Equity

100. Consideration should be given to how workplace arrangements might contribute to an inclusive and future-focused Commonwealth workforce.

Sustainability

101. Workplace arrangements need to support the ability of Commonwealth agencies to function efficiently, including by sustaining capacity and capability requirements.
102. Outcomes for agencies and employees will represent fair and fiscally responsible use of taxpayer money, in line with community expectations.

Approval requirements

103. Approval from the APS Commissioner must be obtained prior to any proposed increases in remuneration or changes to conditions with a financial impact being discussed with employees and/or their representatives. Agency Heads are to provide the APS Commissioner with a signed Funding and Remuneration Declaration, using the template provided by the APSC.
104. A draft enterprise agreement, or other collective workplace arrangement, is to be provided to the APS Commissioner for approval prior to the agency tabling its final position with employees and/or their representatives.

Conditions

105. Non-APS agencies are encouraged to incorporate the Common Conditions included in the Statement (once available) where practicable.
106. Genuine and effective consultation with employees and relevant unions is sound management practice. It fosters a positive and inclusive workplace culture, where the views of employees are considered and taken into account before decisions that substantially impact them are made or implemented.
107. Enterprise agreements and comprehensive determinations must be consistent with the consultation requirements of the FW Act. Agencies should implement arrangements that go beyond the requirements of the FW Act, noting that agencies are not required to include content that would be inconsistent with their legal obligations (for example ensuring compliance with privacy laws).
108. Enterprise agreements must include an individual flexibility term consistent with the requirements of the FW Act, varied to include remuneration.
109. Enterprise agreements and comprehensive determinations must include a dispute resolution term consistent with the FW Act. Agencies should be cautious in considering any proposal to broaden the scope of the dispute resolution clause beyond matters that arise under their enterprise agreement and the National Employment Standards.
110. Enterprise agreements and comprehensive determinations must include a delegates’ rights term consistent with the requirements of the FW Act.
111. Agencies may amend the employer contribution method of superannuation calculation to Ordinary Time Earnings, consistent with contemporary remuneration practices.

Section 3 – Common law arrangements

112. This Section applies to non-APS agencies with common law arrangements and their employees.
113. The Government promotes genuine good faith bargaining between employers, employees and their unions as the preferred practice for setting fair remuneration and conditions.
114. Agencies with an established practice of setting terms and conditions through common law arrangements may continue to do so, subject to any bargaining obligations applicable under the Fair Work Act.
115. The Government expects Agency Heads provide pay increases that do not exceed the Commonwealth pay offer and adopt entitlements consistent with other Common Conditions where appropriate.
116. Agencies must notify the APSC at least 30 days in advance of making proposed changes to their common law arrangements to increase remuneration or enhance terms and conditions.

Section 4 – SES equivalent employees

117. This Section applies to non-APS agencies and their SES-equivalent employees.
118. Agency Heads are to take all practical steps to moderate the growth of SES-equivalent total remuneration.
119. SES-equivalent employees, as key senior leaders, are not generally covered by enterprise agreements or other collective workplace arrangements.
120. Remuneration and conditions adjustments for SES-equivalent employees covered by individual arrangements are to be consistent with the Non-APS Policy.
121. The Agency Head is responsible for ensuring SES-equivalent pay increases are underpinned by productivity growth and represent fiscally responsible use of taxpayer money, in line with community expectations.
122. The approval of the APS Commissioner is not required, however agencies are to provide the APS Commissioner with information on SES-equivalent employee remuneration on request.