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WHAT’S THE SAME, WHAT’S CHANGED AND WHAT DOES IT MEAN? THE NEW APS BARGAINING POLICY DISSECTED

The Federal Government Workplace Bargaining Policy 2018 was released on 6 February 2018 with an immediate start date. On our initial review, it appears relatively comparable to the previous bargaining policy, retaining the same bargaining parameters that have seen Agency’s working through often in lengthy and protracted bargaining processes since 2014. Some of the familiar features are:

  • a. no overall enhancement to terms and conditions;
  • b. any enhancement to an individual term or condition may only occur after pre - approval from the APS Commissioner where another term of equal value has been traded;
  • c. pay increases to be capped at an average of 2% per annum and to be funded through productivity enhancements.

But on closer examination, there appears to be a recommended shift to an increased reliance on individual negotiations. Under previous policies, collective bargaining was the primary avenue for setting terms and conditions for general staff EL2 and below with Individual Flexibility Arrangements (IFA’s) providing the main avenue for flexibility. The use of workplace determinations and common law contracts were limited to SES staff and other designated specialists. However, the new bargaining policy looks to be encouraging greater flexibility in the use of these alternative and individual arrangements at any level.

Realistically, given the coverage of the Public Service Modern Award and the assumed reliance on collective bargaining for staff below the SES level, it is unlikely that we will see a sizeable swing away from Enterprise Agreements. However, it is possible that we will see a more flexible approach to bargaining at the individual level, particularly noting that common law contracts will no doubt contain more robust termination provisions than an IFA affording the employee greater protection from unilateral decision making.

However, whilst the bargaining policy has encouraged a more flexible approach in the use of individual workplace arrangements, it does not appear to have updated the approval requirements for increases to remuneration and trade-off for terms and conditions to align to that which currently applies for the negotiation of comparable individual workplace arrangements at the SES level (or equivalent). Whilst an Agency Head does not need to seek approval of any draft individual workplace arrangement, they must still obtain prior approval of remuneration and terms before they can discuss it with the employee.

None the less, this shift to a broader utilisation of workplace arrangements as referenced in the 2018 bargaining policy reinforces the need more than ever, for Federal Government agencies and departments to first consider their overall employment framework and how this can better align with strategic and operational business plans and the corporate HR strategy. Particularly for those agencies focussing on increasing leadership and management capability, delivering against individual and team performance measures and cultural change.

Additionally, there are some other notable updates that appear to be designed to deliver increased conformance to the policy including:

  • ensuring that Agency workplace relations policies and practices are consistent with the policy- with particular attention to right of entry, freedom of association, consultation, dispute resolution and employee representatives.
  • Requiring that any potential side arrangements with unions are approved by the Commissioner before being entered into.
  • Stating upfront that comparisons against other agencies will not be considered as valid reasons to increase remuneration and other terms and conditions.
  • The reintroduction of productivity costings to be included in the cost modelling (although, when compared to the 2014 policy, this requirement is indicative at best).

We can also see that it is likely that complex scenarios such as those that existed during the previous round of bargaining with employers such as Department of Industry, Innovation and Science have influenced a more overt flexibility in negotiating remuneration outcomes. The policy now states that:

    “where entrenched internal structural deficiencies make an agency’s existing pay scale unworkable within the context of its operational needs, the APS Commissioner may agree to reasonable variations that address these deficiencies.”

However, it is important to note the use of the term ‘entrenched’ as this discretionary flexibility will not be applied to address attraction or retention issues, or machinery of government changes.

The final notable change occurs towards the end of the policy where the APSC makes it clear that domestic violence leave, as a separate entitlement is not up for discussion (unless of course you are successful in securing it as a trade-off). The reference in itself appears to be quite nebulous in the context of the bargaining policy in that it does not establish a rule or parameter that must be followed, it merely provides a response to a debate that continues to be raised in the broader community. We will follow the employee and bargaining representative response to this particular inclusion with interest.

HBA Consulting Pty Ltd has a demonstrated track record in working with Public Sector employers in establishing and implementing successful bargaining strategies with significant gains particularly during the complex and protracted negotiations following the introduction of the 2014 bargaining policy. With a strong background in Federal Government employment matters and solid business partnerships with practicing industrial lawyers and financial management and cost modelling experts, HBA is well placed to provide holistic strategic and practical advice and support to Federal Government sector employers as you progress through the enterprise bargaining process under the Workplace Bargaining Policy 2018.

For more information contact Gary Champion Principal HBA Consulting

gary.champion@hbaconsulting.com.au or 02 62474490

Canberra

29 Somerville,
St SPENCE ACT 2615
PH : 02 6247 4490

Sydney

Level 32, 101 Miller St,
North Sydney NSW
PH: 02 8019 7164

Melbourne

Level 2 Riverside Quay,
1 Southbank Boulevard,
Southbank VIC,
PH: 03 9982 4544

Brisbane

Level 19, 10 Eagle Street,
Brisbane QLD
PH: 07 3303 0807