Circular 2025/03: Making new workplace arrangements and enterprise bargaining during a caretaker period

Published

Purpose and application

  1. The purpose of this Circular is to provide guidance to Commonwealth employers on making new workplace arrangements and enterprise bargaining during a caretaker period.

Making new workplace arrangements and enterprise bargaining during a caretaker period

  1. The following arrangements will apply in respect of making new workplace arrangements. This includes bargaining for new enterprise agreements, remuneration for common law agreements, or considering whether to make a collective determination providing remuneration increases or other terms and conditions 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 published by the Department of the Prime Minister and Cabinet.

The caretaker conventions and Commonwealth workplace relations

  1. 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.
  2. 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]
  3. In light of this, at the commencement of the caretaker period, Agency Heads should review any activities associated with the making of new workplace arrangements. This may include assessing the progress of any enterprise bargaining process, in compliance with the Government’s Public Sector Workplace Relations Policy 2023 (the Policy).
  4. During the caretaker period, agencies should consider avoiding significant steps in enterprise bargaining. This may include commencing a consideration period or undertaking a formal enterprise agreement ballot under the Fair Work Act 2009 (FW Act), or making a wages offer in negotiations.
  5. Other more routine steps involved in the enterprise bargaining process may be able to continue. Appendix A outlines the recommended approach for agencies in specific situations.
  6. 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.
  7. It may be preferable to avoid proceeding with an enterprise agreement ballot or other significant steps in the bargaining process once the caretaker period commences, unless there is a legal or statutory requirement to continue or finalise a particular process.
  8. 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 approval by the Fair Work Commission during the caretaker period, as is legally required under the FW Act.

The role of ministers

  1. Exemptions under the Policy are to be approved by the Minister for the Public Service and the agency’s portfolio Minister and as such, cannot be granted during a caretaker period. 
  2. Agencies should also consider deferring steps in the bargaining process, where these may require advice to, or consultation with, ministers.

The APSC's role during the caretaker period

  1. The Australian Public Service Commission (APSC) will continue to provide feedback and advice to agencies on bargaining positions, remuneration proposals and draft enterprise agreements against the Policy during the caretaker period.
  2. Consistent with the Policy, approval from the Australian Public Service (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 provide this information in a Funding and Remuneration Declaration.
  3. The APS Commissioner will not approve funding and remuneration declarations during the caretaker period.
  4. The APS Commissioner must also approve a draft enterprise agreement prior to an agency tabling its final position with employees and/or their representatives and putting the proposed enterprise agreement to a ballot.
  5. The APS Commissioner will not approve a draft enterprise agreement during the caretaker period.

Determinations

  1. Agency heads should generally not make collective determinations under the Public Service Act 1999 or other legislation during the caretaker period.
  2. The APS Commissioner will only approve collective determinations in exceptional circumstances as determined by the APS Commissioner.
  3. Agencies may seek APSC feedback on proposed draft collective determinations during the caretaker period. Further details are at Appendix A.

Common law agreements

  1. 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.
  2. 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 will not be provided until after the caretaker period.

Further information and advice

  1. Should you require any further information or assistance on this matter, please contactworkplacerelations@apsc.gov.au or your APSC Relationship Manager.
  2. Further information on the caretaker conventions, including guidance, is available on the Department of the Prime Minister and Cabinet website: Guidance on Caretaker Conventions | PM&C.
  3. This Circular supersedes Circular 2022/4: Making new industrial arrangements and enterprise bargaining during a caretaker period.

Appendix A

Suggested approach during the caretaker period

Scenario

Desired approach
DETERMINATIONS
An agency is seeking approval of a draft determination.
  • The APS Commissioner will only approve collective determinations in exceptional circumstances as determined by the APS Commissioner. Agencies seeking approval of a collective determination during the caretaker period should consult with the APSC about whether the circumstances are likely to be exceptional.
ENTERPRISE AGREEMENTS
An agency is seeking approval of a draft enterprise agreement.
  • The APS Commissioner will not approve draft enterprise agreements during the caretaker period.
The proposed enterprise agreement has been approved under the Policy and the Caretaker period commences, but the agency is yet to commence the consideration period.
  • The agency should consider whether commencing the consideration period would be consistent with the caretaker conventions.
  • Deferring commencement of the consideration period is likely to be the most appropriate course of action in most circumstances.
A consideration period is already underway when an election is announced and the Caretaker period commences.
  • The agency should consider whether proceeding with a ballot at the end of the consideration period is consistent with the caretaker conventions.
  • If an agency determines that a ballot should not go ahead, the consideration period should be terminated.
  • Terminating the consideration period and deferring the ballot is likely to be the most appropriate course of action in most circumstances.
An enterprise agreement ballot is underway when an election is announced.
  • The agency should continue in accordance with legislative obligations under the FW Act.
An enterprise agreement ballot is successful and Fair Work Commission approval is now required.
  • The agency should continue in accordance with legislative obligations under the FW Act.
EXEMPTIONS
An agency is seeking a full or partial exemption from the Policy.
  • Exemptions cannot be granted as these would require Ministerial approval.

Footnote

[1] Refer to paragraph 5.1, Guidance of on Caretaker Conventions December 2024, Department of the Prime Minister and Cabinet, page 4.

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