Workplace Update - Release of the Employment Bargaining Framework for Australian Public Service

The Federal Government has released the Australian Government Employment Bargaining Framework (Bargaining Framework) for the public sector. As expected, the Bargaining Framework reflects the shift in the Rudd Government's proposed legislation away from individual agreements and back to collectively negotiated agreements in which Unions will play a pivotal role.

The Bargaining Framework, which is accompanied by a Supporting Guide, provides direction for government agencies in implementing the Federal Government’s new workplace relations policy.

All Australian Public Service (APS) agencies and Members of Parliament Staff employment arrangements are required to comply with the Bargaining Framework.  Workplace Relations Minister Julia Gillard has announced that she hopes to have the new workplace relations legislation operational as soon as possible after Easter but that the Bargaining Framework should be followed now so that agencies can lead the change by example.  

Non-APS Commonwealth Authorities and other government employers are to apply the Bargaining Framework as directed by their responsible Minister.  All non-APS Commonwealth Authorities and Government Business Enterprises, that are not bound to comply with such directions, are encouraged to voluntarily apply the policy. 

The Bargaining Framework makes collective agreements the principal means of setting the employment conditions of employees (other than Senior Executive Service (SES) officers).  As has been previously announced by the Federal Government, Australian Workplace Agreements (AWAs) and Interim Transitional Employment Agreements (ITEAs) may not be offered to employees covered by the Bargaining Framework.  However, AWAs will continue to operate until terminated or replaced in accordance with the Workplace Relations Act 1996 (Cth). 

Key features

Under the Bargaining Framework agencies will be required to:

• Provide employees with reasonable access to union support in the workplace.
• Genuinely bargain with employees, including consulting with employees on the form of collective agreement they would prefer.
• Observe the right of employees to be represented by their union in the bargaining process.
• Only enter into arrangements that can be met from existing budgets.
• Link improvements in pay and conditions of employees with improvements in workplace productivity.
• Incorporate flexible attraction and retention initiatives, including terms and conditions that assist employees in maintaining a healthy work-life balance.
• Incorporate leave policies that support the release of employees for emergency service duties and the release of Defence Reservists for peacetime training and deployment.
• Maintain consistency with the Public Service Classification Rules 2000 in setting classification structures in agreements.
• Retain portability of accrued paid leave entitlements.
• Include compulsory redeployment, reduction and retrenchment provisions without enhancing existing redundancy arrangements.

Requirements for SES employees

For SES employees, terms and conditions will be set either by:

• Determinations under the employing legislation.
• Common law arrangements.
• Where the majority of SES officers in an agency choose, in a separate collective agreement. 

However, the Bargaining Framework Supporting Guidance suggests that determinations and common law agreements may be less flexible than a collective agreement.  This is because they must comply in every respect with the conditions of an applicable award, while a collective agreement will be subject to an overall 'no disadvantage test' which enables some conditions to be altered. 

In small agencies, where SES and non-SES officers have uniform or highly similar functions or there are specialist SES employees in non-managerial positions, all employees may be included in an agency-wide agreement. 

Approval of collective agreements and determinations

All agencies are required to submit collective agreements and determinations to the Department of Education, Employment and Workplace Relations for assessment prior to the agency seeking final employee approval on an agreement.  An agency must also obtain Ministerial approval of the terms of a collective agreement or determination prior to formal approval on the agreement by employees. 

What does it all really mean?

Agencies should be ready to embrace the return of a world where industrial bargaining and collective agreements will become the key feature of APS employment.  The Commonwealth Public Sector Union (CPSU) has already 'welcomed' the new Bargaining Framework and we consider that Unions, such as the CPSU, can play an enhanced role in fleshing out the way that guidelines will in fact operate. This includes the guideline that agencies 'incorporate flexible attraction and retention initiatives, including terms and conditions that assist employees in maintaining a healthy work-life balance'.

The Bargaining Framework may represent a big change in the way agencies approach employment arrangements. It is important to understand the detail of how the Bargaining Framework will work because the time to implement these changes is now!
 
For more information please contact:

Michael Will, Partner
Tel + 61 2 6201 8717
Michael.will@dlaphillipsfox.com

Nick Ruskin, Partner and National Practice Leader
Tel + 61 3 9274 5284
Nick.ruskin@dlaphillipsfox.com