APS advised on Fair Work ruling as protracted pay talks face further delay

By Stephen Easton

September 12, 2016

Federal agencies still in enterprise bargaining should take note of last week’s Fair Work Commission ruling and review their current notices of employee rights, but the public service commissioner sees nothing to be alarmed about.

The FWC full bench ruled in a recent August 25 hearing of the long-running Uniline case — a curtain manufacturer — that a late or badly worded notification of representational rights is not valid and makes it impossible for the commission to ratify any subsequent enterprise agreement.

Some agencies have recently re-issued their notices “to correct errors or address other technical issues” according to the Australian Public Service Commission, which advises them to go back and check they took the right steps in light of the FWC ruling.

In new guidance, the APSC explains these agencies that re-issued the notification of employee rights should have effectively stopped the bargaining process and agreed to re-start it immediately, resetting the 14-day time limit on the notification and making the new one valid. But the APSC says the FWC isn’t clear on how one does that:

“Despite that guidance, the majority’s decision does not indicate what action, if any an employer is required to take to ‘cease bargaining … and … agree to bargain or initiate bargaining afresh’ for the purpose of re-issuing a Notice.”

The commission confirms all agencies that are still in bargaining should review the “content, form and timing” of their current notifications to see if they are affected. Those that re-issued the notification need to look back and see if they can claim to have agreed to start a fresh bargaining process at the time.

The APSC is on hand to provide tailored advice to agencies that might have a problem through relationship managers and suggests they also get their own legal advice.

The ruling could expose small mistakes that set back some of the longest enterprise bargaining periods ever seen in the APS even further. But commissioner John Lloyd says there’s no need to panic and newspapers got the story “wrong” last week when they reported “many” agencies had found their notices of employee rights were indeed issued too late:

“It is true that some public sector agencies are affected by the recent decision of the Fair Work Commission, but to claim that only three agencies are unaffected is false and unnecessarily alarmist. The agencies that are affected by this decision are taking the steps necessary to remedy this legal technicality and will recommence bargaining in good faith.”

Lloyd also took the opportunity to offer his personal concern about “excessive prescription that overlays enterprise bargaining” in Australia and said he was “disappointed” that union officials took the chance to stick the boot in. Professionals Australia’s ACT and federal government branch director David Smith was quoted in the Fairfax article accusing APS bosses of “a massive management stuff-up” that added further delays.

The Canberra Times reported the August 25 decision as a major setback that had “thrown the entire process into disarray” for almost the whole APS. The CSIRO, Department of Human Services and Department of Agriculture and Water Resources had moved to reset their negotiations, according to the article, with DHS explicitly advising staff it had ended the bargaining process to start a new one.

The day before the article was published, the APSC issued a new proforma notification of employee rights during enterprise bargaining and in protected industrial action and encouraged all agencies to remind their employees.

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