Circular 2024/04: Consulting with the APSC on legal advice and disputes about enterprise agreement Common Conditions

The purpose of this circular is to provide guidance to agencies on consulting with the Australian Public Service Commission (APSC) about legal advice and workplace disputes relating to any of the negotiated 59 APS-wide Common Conditions(Common Conditions).
This guidance applies to all APS agencies, and non-APS agencies with an enterprise agreement containing any of the Common Conditions.
Clause 64 of the Public Sector Workplace Relations Policy 2023 requires agencies to consult with the APSC in the event of any “significant industrial issues at the workplace level”. This includes disputes arising under the terms of an enterprise agreement, and proceedings before the Fair Work Commission of a collective or significant nature.
A dispute is considered significant if it relates to the interpretation or application of a Common Condition.
The consultation process with the APSC outlined in this guidance for “significant industrial issues” is separate to the requirements in paragraph 3 of the Legal Services Directions 2017 for entities to report to the Office of Legal Services Coordination on “significant issues that arise in the provision of legal services”. There may be issues that will require both processes to be followed.

Agencies are expected to consult with the APSC before obtaining external legal advice on the interpretation of a Common Condition and provide a copy of legal advice obtained about a Common Condition to the APSC.
Agencies are expected to consult with the APSC on Fair Work Commission and legal proceedings where an arbitrated decision interpreting or applying a Common Condition may be made.

Disputes about the interpretation or application of Common Conditions have the potential for broader implications for APS and non-APS agencies.
It is important for the APSC to have visibility of advice and workplace disputes of this nature, including to:
- provide information (if relevant) about the intention of the parties during bargaining
- provide information on other matters that have considered the clause in dispute (if relevant)
- provide information to ensure the Commonwealth puts forward a fair and consistent position on interpretation of Common Conditions
- disseminate outcomes and advice to other agencies that may be affected by decisions.

Agencies are expected to consult with the APSC before seeking legal advice about the interpretation of a Common Condition.
Agencies are expected to provide the APSC with a copy of legal advice obtained about the interpretation of a Common Condition. Agencies may de-identify advice before providing it to the APSC.
Prior consultation is not required if the advice is needed urgently. In this case, consultation should occur as soon as practicable.
Prior consultation is not required, and a copy of the legal advice does not need to be provided to the APSC if:
- the disclosure would constitute a breach of the law
- a Cabinet, law enforcement or national security matter would be inappropriately disclosed, or
- the APS Commissioner has exempted the agency from consultation and disclosure.
Consultation and disclosure is not required for a routine matter that does no more than advise on the application of a Common Condition to particular facts. Without limiting the requirement, consultation would be required where the matter could have an impact on the broader interpretation of a Common Condition or raise a new policy issue concerning a Common Condition.

Whether proceedings may interpret or apply a Common Condition will depend on the individual dispute and the circumstances of the matter.
Fair Work Commission proceedings that may interpret or apply a Common Condition include arbitration of:
- a dispute under the enterprise agreement
- the General Protections provisions of the Fair Work Act 2009 (Cth).
Proceedings in the Federal Circuit and Family Court of Australia and Federal Court of Australia may involve the interpretation or application of a Common Condition, including:
- alleged contraventions of the General Protections provisions of the Fair Work Act 2009
- alleged contraventions of an enterprise agreement
- alleged contraventions of discrimination laws
- claims to recover employment entitlements under section 548 of the Fair Work Act.
There may be other court or tribunal matters where consultation is required.
Agencies are encouraged to consult if they are unsure whether the obligation to consult arises.

For matters in the Fair Work Commission or another tribunal, agencies are required to consult when they become aware that a matter is likely to be arbitrated. Agencies are not required to consult while the dispute is at the workplace level or mediation/conciliation in the Fair Work Commission or another tribunal.
Unfair dismissal matters do not need to be reported to the APSC unless there is an issue in dispute about a Common Condition.
For matters in a court, agencies should consult when they become aware of the matter. For example, when an agency is served with an Originating Application.
Agencies should remain mindful of the obligation and consult as soon as practicable if a Common Conditions issue arises during the course of the matter.
Agencies are encouraged to consult earlier if it is warranted by the circumstances.

The APSC should be notified of legal advice or proceedings via Legal@apsc.gov.au. Where information is subject to legal professional privilege and privilege should be maintained, the agency should include a statement indicating the privileged nature of the documents or information, that it is provided on a confidential basis and legal professional privilege has not been waived.
After legal advice or proceedings are notified, the APSC will review the information provided. The APSC will notify the agency whether any further information or consultation points are requested.

Agencies seeking further information on this circular should contact WorkplaceRelations@apsc.gov.au.

About the APSC