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

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

4. 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.
5. 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]
6. 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).
7. 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.
8. 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.
9. 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.
10. 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.
11. 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

12. 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.
13. Agencies should also consider deferring steps in the bargaining process, where these may require advice to, or consultation with, ministers.
14. 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

15. 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.
16. 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.
17. 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

18. 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.
19. 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

20. 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.
21. Further information on the caretaker conventions, including guidance, is available on the Department of the Prime Minister and Cabinet’s webpage.
22. This Circular supersedes Circular 2019/1: Agreement making and bargaining during a caretaker period.

Appendix A