APSC clarifies enterprise bargaining during the federal election

By The Mandarin

May 9, 2016

Enterprise bargaining for the many thousands of Australian public servants who still do not have a current EBA can continue during the election period, the Australian Public Service Commission has advised. However, it cautioned that it may be preferable to defer ballots until after the election as they could become politically contentious.

Caretaker conventions urge judgement and common sense, informed by the particular context, but whether to continue with bargaining is up to individual agency heads. The Commission advised on Monday:

“During the caretaker period, agencies may consider it appropriate to avoid taking significant steps in the bargaining process. This may include holding a ballot, commencing an access period or making a wages offer.

“Policy exemptions require ministerial approval and as such cannot be granted during the caretaker period.”

However, other more routine activities connected to bargaining may continue, including a ballot that is already underway or seeking Fair Work Commission approval following a successful ballot result.

“Unless there is a legal or statutory requirement to proceed with a vote or take another significant step involved in the bargaining process, it may be preferable to defer until after the election. Agencies should consider deferring steps in the bargaining process which may require advice to ministers until after the caretaker period.”

The APSC will continue to provide advice to agencies during this period, but will not be a direct party to the negotiations. An earlier legal effort from the Community and Public Sector union to force Employment Minister Michaelia Cash or her delegate APS commissioner John Lloyd, failed last week.

The APSC’s role in approving proposed EBAs prior to a ballot will continue throughout caretaker period.

APSC’s recommendations

 
Bargaining status APSC’s suggested approach
Proposed agreement has not been approved under the bargaining policy. May seek the Commissioner’s approval under the Bargaining Policy.

The Commissioner will consider whether it is appropriate to approve in all of the circumstances, and may decide to defer a decision during the caretaker period.

Exemptions cannot be granted, as these would require ministerial approval.

Proposed agreement has been approved under the Bargaining Policy, yet to commence the access period. The agency should consider whether commencing the access period would be consistent with the Caretaker Conventions.

Deferring commencement of the access period is likely to be the most appropriate course of action in most circumstances.

Access period already underway when election is announced. The agency should consider whether proceeding with a ballot at the end of the access period is consistent with the Caretaker Conventions.

If a ballot will not go ahead, the access period should be terminated.

Terminating the access period and deferring the ballot is likely to be the most appropriate course of action in most circumstances.

Ballot underway when election is announced. Continue in accordance with legislative obligations.
Ballot successful and Fair Work Commission approval now required. Continue in accordance with legislative obligations.
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