Express law No. 309

On 6 October 2022, the Australian Public Service Commission (APSC) announced new arrangements addressing remuneration, conditions and bargaining across the public sector. These interim arrangements came into effect on 1 September 2022 and replace the Public Sector Workplace Relations Policy 2020 (2020 Policy). The Australian Government has indicated it will commence consultation on a comprehensive workplace bargaining policy to commence in 2023. The Interim Arrangements are intended to apply until 31 August 2023, while that comprehensive policy is being developed.

The Interim Arrangements apply to APS and non-APS Australian Government Entities and Members of Parliament Staff (Agencies). Government Business Enterprises (GBEs) and certain named entities are not required to apply the Interim Arrangements but are encouraged to do so. Those entities should still engage with the APSC on matters related to bargaining and industrial action.

3% pay increase between now and 31 August 2023

Where an Agency is scheduled to increase remuneration during the life of the Interim Arrangements (whether under an enterprise agreement, common law arrangement or a determination made under enabling legislation, including the Public Service Act 1999 (PS Act)), they should provide a single 3% increase in annual remuneration. Scheduled remuneration increases include those falling due under an in-term workplace arrangement, and where at least 12 months have passed since the last increase under an expired workplace arrangement. Remuneration increases are to apply prospectively only.

All collective increases must be approved by the APS Commissioner before they are made, and Agencies are encouraged to effect any increase via a determination under s 24(1) of the PS Act (or other relevant enabling legislation).

SES employees, incentive payments and common law arrangements

While the Interim Arrangements are in place, Agencies are barred from negotiating one-off incentive payments. Any remuneration increases for SES and equivalent employees must reflect the Interim Arrangements, but do not require approval. Agencies seeking to increase remuneration under common law arrangements must consult with the APSC before doing so.

Agencies should delay commencement of/pause bargaining if possible

Agencies should carefully consider whether it is appropriate or necessary to commence bargaining while the Interim Arrangements are in place and consult with the APSC before any decision or commitment to issue a Notice of Representational Rights is made. Agencies currently bargaining should consult with bargaining representatives to decide whether to pause bargaining for the time being, and instead agree to make a ‘remuneration-only’ determination under the Interim Arrangements. Consideration of whether bargaining is appropriate should take into account any obligation to bargain under the Fair Work Act 2009.

Role of unions, workplace consultation and ‘good faith’ dispute resolution highlighted

The Interim Arrangements contain an expectation that arrangements facilitate the role of unions, particularly workplace delegates and officials. Notably, Agencies are encouraged to ‘go beyond’ Fair Work Act (FW Act) requirements when consulting and engaging with unions, where consistent with legal obligations.

Disputes are to be resolved ‘in good faith’, in line with the good faith bargaining principles set out in section 228 of the FW Act.

Leave, redundancy redeployment and reduction

The Interim Arrangements extend the 2020 Policy settings for family and domestic violence (FDV) support, stating it is the Government’s expectation that Commonwealth agencies provide support to employees experiencing FDV which meet or exceed a 10-day paid leave entitlement through utilising existing entitlements.

The Arrangements otherwise mirror the 2020 Policy settings for redundancy, redeployment and reduction and paid leave:

• no personal/carer’s leave cash-out arrangements are permitted
• paid leave entitlements are to be treated as portable within the public sector
• Defence Reservists are to be supported to take leave for peacetime training and development
• no enhancement to existing redundancy, redeployment and reduction entitlements is permitted.

AGS can provide specific advice about your Agency’s compliance with and implementation of the Interim Arrangements and impacts on current and prospective bargaining and strategy.