Workplace Relations Advice 4 of 2010: Agreement Making During a Caretaker Period

1. The Australian Government Employment Bargaining Framework (Bargaining Framework) sets out the Australian Government's workplace relations policy in relation to its employees. APS agencies, non-APS authorities and relevant Ministers are required to implement the Bargaining Framework, including during the agreement making process.

2. During the caretaker period, the business of government continues and ordinary matters of administration still need to be addressed. However, 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. In summary, the conventions are that the government avoids:

• making major policy decisions that are likely to commit an incoming government;
• making significant appointments; and
• entering into major contracts or undertakings.

3. The caretaker conventions and practices have developed primarily in the context of the relationship between Ministers and their departments (and, by extension since the commencement of the Public Service Act 1999, executive agencies). The relationship between Ministers and other bodies, such as statutory authorities and government companies, varies from body to body. However, those bodies should observe the conventions and practices unless to do so would conflict with their legal obligations or compelling organisational requirements.

4. Regarding agreement making in the lead up to the federal election on 21 August 2010, the following arrangements should apply.

Ministerial approval of enterprise agreements

5. Where final Ministerial approval of a proposed enterprise agreement has been obtained prior to the commencement of the caretaker period, the agreement making process may continue (i.e. staff ballot and, lodgement with Fair Work Australia for approval).

6. However, where final Ministerial approval of an enterprise agreement has not been obtained prior to the commencement of the caretaker period, the agreement making process should be deferred until approval has been received from the relevant Minister following the federal election.

Ongoing bargaining arrangements

7. Where an agency has received in-principle agreement from their Minister in relation to their proposed bargaining position prior to the commencement of the caretaker period, it is expected that bargaining for that enterprise agreement would continue consistent with the good faith bargaining requirements set out in the Fair Work Act 2009 (FW Act).

• However, bargaining representatives are to be reminded of the requirement for an agency to seek Ministerial approval should the agency's bargaining position move beyond the parameters agreed by the agency's Minister. In such circumstances, bargaining around particular terms and conditions may need to be deferred until further approval is sought from the agency's Minister following the federal election.

8. The APSC will continue to assess draft agency enterprise agreements against the Bargaining Framework during the caretaker period.

9. It should be noted that any delay in finalising bargaining due to a caretaker period being in place does not constitute an exceptional circumstance for the purposes of providing a retrospective salary increase.

Collective determinations

10. Agencies are reminded that all collective determinations must be assessed against the Bargaining Framework by the APSC and that agency Ministers are required to approve such determinations before they come into effect. If such Ministerial approval has not been obtained prior to the commencement of the caretaker period, agencies should defer implementing a collective determination until approval is sought from the agency's Minister following the federal election.

11. Agencies that require an urgent determination to be put into place should contact the APSC and if necessary, the Department of the Prime Minister and Cabinet, to discuss options within the context of the caretaker implications.

Expiry of current agreements

12. Agencies are reminded that the Bargaining Framework requires them to obtain their Minister's in-principle approval of the proposed bargaining position prior to commencing bargaining. Agencies who have not fulfilled this requirement prior to the commencement of the caretaker period should not issue a Notice of Employee Representational Rights until they have briefed the relevant Minister following the federal election.

Further information and advice

13. Agencies should contact the APSC for advice where issues arise which may involve the ability of parties to comply with the requirements of the FW Act.

14. The Department of the Prime Minister and Cabinet was consulted in the drafting of this advice.

15. Should you require any further information or assistance on this matter, please contact your APSC client contact officer directly or telephone (02) 6202 3704 to be directed to the appropriate person.

Justine Jones
Acting Group Manager
Workplace Relations