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    AFPA Industrial Dispatch #28

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  • Facts & Info

    Government’s Workplace Bargaining Policy:

    The Federal Government controls the bargaining process through the Workplace Bargaining Policy. The policy imposes a maximum 2% pay rise each year of the agreement and prevents the payment of back pay or sign on bonuses. The policy provides an incentive to the AFP to engage in the slowest possible process, which it has done.

    As an operational agency, the AFP needs the ability to craft an Enterprise Agreement to support operational outcomes. This ability to make adjustments to the terms and conditions of employees has been fettered by the Workplace Bargaining Policy.

    By imposing an upper limit on salary increases which is effectively less than CPI, the Government is sending a message it does not want to pay for other changes to working conditions. While this position may be reasonable from a purely fiscal point of view, it is unreasonable for the AFP to continue pursuing reductions to terms and conditions without properly compensating employees for the hours they work, the work they do and the impacts on their lives and families.

    Your Association raised all these various issues directly with the Government through Ministers Keenan and Cash. They were not interested in even discussing concessions to afford the AFP more flexibility under the policy.

    AFP approach to bargaining:

    Too much time and not enough effort

    The AFP came to the bargaining table at the beginning of 2016 fundamentally unprepared. There was no plan for what the organisation wanted to achieve through the bargaining process and no direction provided by the AFP Executive. The AFP did not produce a Log of Claims and formulated its position on crucial issues on the run as bargaining progressed.

    The fact it took until mid-November 2016 for the AFP to make a decision on the future of composites is the best illustration of the lack of attention being paid to the bargaining process by the AFP Executive.

    The finalisation of your new Enterprise Agreement has been slow because decision makers in the AFP did not care enough to manage the process in a way which could have delivered an outcome in a timely manner.

    The AFP does not believe you are a legitimate participant in the bargaining process. Here is a link to the AFPA Log of Claims which shows which items the AFP was prepared to concede through bargaining. These claims were formulated through consultation with our members before the bargaining process commenced, but the lack of interest shown by the AFP for your perspectives is obvious.

    The AFP has also made significant unilateral changes to the Agreement between drafts, without the involvement of other bargaining representatives. Between bargaining meetings in December 2016 and March 2017, the Agreement disappeared into the black hole of APSC approval and emerged with significant changes having been made to important conditions. This included changes to provisions which had already been settled during bargaining.

    It is clear the AFP reserves for itself the right to dictate terms and conditions, to impose these upon employees and to communicate an expectation of compliance, even when these changes will see you worse off.

    It is also important not to confuse the bargaining process which has resulted in this proposed agreement with a negotiation. The proposed agreement is not the product of a negotiated outcome. Instead, it has emerged from a process which is owned and managed by the AFP and it represents what the AFP believes you should be entitled to. The fact that this means you will have to make do with less is entirely your problem and reflects what value the AFP puts on its employees.

    This is a test. The AFP has put forward an agreement offering a reduction in terms and conditions together with an inadequate pay rise. If you accept what’s on offer, you should expect much more of the same next time around. Why would the AFP offer anything else again?

    The Agreement:

    It has taken the AFP almost 18 months to deliver a final draft of the agreement. Because of this, the maximum six percent pay rise is effectively being delivered over more than four years. This means the pay rise is worth less than 1.5% per year. Why should you suffer any loss of terms and conditions in return for a salary increase that is less than CPI?

    The AFP will tell you this is the best agreement which can be delivered in the current environment. We say rubbish. There is no requirement for any new agreement to leave you worse off. Support for the proposed agreement is not in your best interests as a member of the AFPA.

    We look to the ELEA as the perfect example of how the bargaining process should work – the maximum allowable pay rise applied to existing conditions delivered an 80% yes vote first time around.

    No matter where you work in the AFP, the AFP has put forward an agreement that reduces your terms and conditions.

    The Loss of Mandatory Rest Days:

    Your current entitlement to MRDs sees two credited in both March and September, with the only stipulation being your Annual Leave balance is below 304 hours. The future of MRDs was raised near the beginning of bargaining, with the AFP advocating their removal altogether.

    Now the AFP has proposed an MRD provision which will see no MRD entitlement during the first year of the new agreement. Then you will only accrue MRDs if you take six weeks Annual Leave each year. This is an all or nothing provision too – if you only take 5.5 weeks leave, you get no MRDs.

    If you find it difficult to use all your annual leave because of operational pressures, or indeed if your leave is denied for this reason, you get no MRDs. If you intended to save some of your Annual Leave for future use, you get no MRDs. A compromise position was settled through bargaining in late 2016, for one MRD to be credited for each week of Annual Leave used. The AFP reneged on this settled position and instead changed the provision to its current form, which will see large numbers of employees receive no MRDs.

    Having the way you use your Annual Leave dictated by the AFP is unnecessary and completely unreasonable and you should not support it.

    In return for an inadequate pay rise, you will have to work an extra week each year.

    Significant Reductions in Shift Change Notification Time:

    Currently, employees assigned to the Rostered Operations Working Pattern must receive a minimum of five-days’ notice before a shift may be changed, or a penalty is payable. The new agreement proposes only 72-hours’ notice being required – a reduction of two days.

    The AFP have argued a reduction in shift change notification time is somehow to the benefit of employees. We do not to see how. The AFP originally proposed a reduction to 24-hours, so it’s easy to see where any change is headed into the future.

    In return for an inadequate pay rise, four-day breaks will always be at risk of change.

    Composite Payments ARE at Risk:

    The AFP has sent a strong signal it wants fewer employees receiving composites.

    The AFP wanted to change the culture of investigations, by encouraging work areas to deploy their resources across a wider spread of hours. However, the design of the provision does nothing to achieve this, rather it provides an incentive to the AFP to maintain the status quo and simply reassign these teams to the Support Working Pattern, thereby saving the cost of composites.

    There has been much discussion about Assessment Criteria for the Operations Working Pattern, and 15% of hours being worked outside an arbitrary bandwidth. Between drafts of the agreement these criteria have changed significantly, however the first iteration clearly illustrated the AFP’s intention – measures for ‘flexibility’ will give the AFP a mechanism to stop operational areas receiving composites.

    The consequence of this will be the creation of ‘black holes’ within the organisation – operational areas which do not receive a composite. Because nobody will volunteer to go to one of these roles, employees will instead be dropped into the black hole and prevented from release unless they can negotiate a one-for-one swap.

    Currently all restricted police and PSO roles in the organisation are assigned to one of the operational working patterns. Why would employees support a provision which would change this status-quo?

    In return for an inadequate pay rise, your composite will be under threat from the commencement of the new agreement.

    The AFP took almost 12-months – until 30 November 2016 – to decide to get rid of the High Volume Working Pattern. Along with the significant loss of salary for those employees, getting rid of the pattern means getting rid of the additional hours these employees work. This means the equivalent of 45 staff will be removed from those High Volume work areas. If you thought getting technical or surveillance support for your investigation was difficult before, you have no chance now.

    We highlighted this very real concern when the change was announced, but the AFP guaranteed there would be no reduction in operational capacity.

    The AFP has done its numbers and worked out what it believes to be the average number of hours worked by these employees each week – only 42. That is all they are budgeting to spend going forward. Apparently, the rest of the hours are not required and instead the money saved – more the $20 million – is being applied to fund the overall salary increase.

    To be clear, there will be eight hours less work from each High Volume employee per week, and the money to buy more as overtime is being spent elsewhere. This is a 16% reduction in operational capacity across current High Volume areas, when the AFP stated there would be NO reduction.

    In return for an inadequate pay rise, current High Volume employees will lose 23% of their salary. The AFP will lose the operational capacity equivalent of 45 staff from High Volume areas.

    Removing Key Safety Net Provisions – leaving insufficient protection and compensation if you work excessive hours:

    We believe the Safety Nets, Scheduling Principles and Roster Principles outlined in the three Working Patterns are important because they illustrate how the AFP’s WHS obligations interact with the Enterprise Agreement. They are about fatigue management, duty of care and work-life balance. Penalty payments are an integral part of these various provisions as they send a price signal about whether a proposed work schedule is appropriate.

    Members assigned to the Operations Working Pattern currently have the protection of two key Safety Nets which will be removed in the new agreement – 60-hours in 7-days and 200-hours in 28-days. A penalty is currently payable if these Safety Nets are breached – and they routinely are for operational reasons.

    In their place, the AFP have proposed a series of scheduling principles lifted from the Rostered Operations Working Pattern. The AFP has refused to attach a penalty to the breaching of these principles, instead they may only be exceeded by the agreement of the employee. Unfortunately, this ignores the operational reality that many times you will need to work in contravention of the provision, regardless of whether you agree or not. In which case your consent will be implied and your attendance will go uncompensated.

    There is also an increased onus upon you as the employee to manage your own time and to advise your chain of command you are about to breach. If you don’t any penalty may be withheld.

    The deeming provision for deficit hours is also being changed. Currently, any deficit hours are deemed worked at the end of the averaging period, a provision which makes sense when the AFP manages employee hours under the Operations Working Pattern by standing down to create capacity early in an Averaging Period. Under the new agreement, the AFP will only deem 16 deficit hours – any more will need to be balanced using leave.

    In return for an inadequate pay rise, you will no longer be protected by appropriate Safety Net provisions.

    Substantial reductions to your entitlements:

    Throughout the agreement, changes have been made by the AFP to numerous provisions which represent a reduction in your terms and conditions of employment. The fact that some of these changes have been justified through delivering a salary increase to all employees will be little comfort to those who see their take home pay cut.

    The loss of DAA in Sydney is and will remain a significant issue for the employees involved. But this is not just a Sydney issue. Cost of living pressures affect AFP employees all around the country, but the AFP refuse to acknowledge this issue and refuse to contemplate a solution. Instead, the AFP have adopted a wholly uncaring attitude in respect of this issue. This change alone will see many of these employees receiving less in their take home pay even after the eventual 6% pay rises are applied.

    Of course, you must think about what the changes proposed in the new agreement mean for you in your current role. However, if you have an interest in any other role in the AFP, or if as an operational member you are subject to rotation or role mobility, you MUST consider what the proposed changes could mean for you in the future.

    Your association believes support for the proposed agreement is not in your best interests as a member of the AFPA.

    No matter where you work in the AFP, the proposed Enterprise Agreement cuts your terms and conditions.

    FAQs

    The proposed Enterprise Agreement delivers a reduction in your terms and conditions of employment in return for an inadequate pay rise. It is being imposed upon you as an employee because the AFP does not believe you are a legitimate participant in the bargaining process. Voting no send a strong signal to the AFP that you care about your working conditions. It will give the AFPA bargaining team a strong mandate to take back to the AFP and demand a better deal.

    Remember, EA 2012-16 was voted down the first time it was offered and what resulted was a better deal for employees.

    The conditions in the current EA remain in place. Employees will not receive a pay rise, but the proposed reductions to terms and conditions will not be imposed.

    It would be our expectation for bargaining to recommence very shortly after results of the vote are known.

    The outcome of the vote will be decided by a simple majority, that is 50% + 1.

    The Workplace Bargaining Policy is the set of bargaining parameters imposed on Agencies by the Federal Government. It is the document which sets out the maximum 2% per annum salary increase and prevents the awarding of new entitlements or enhancements to existing entitlements.

    The Policy also dictates all agreement proposals must be vetted and approved by the Australian Public Service Commission (APSC) before being put to the workforce for a vote. In that way, the Federal Government has become a party to the AFP bargaining process and the Australian Public Service Commissioner is influencing operational outcomes in the AFP.

    The AFPA have been agitating to have more flexibility applied to the AFP bargaining process which would have brought our process outside the constraints of the Policy. Unfortunately, the Federal Government have flatly refused to budge on their Policy position.

    Uniform members of the defence forces are exempted from the Policy because theirs terms and conditions of employment are imposed by a tribunal – they do not have the ability to bargain directly with their employer.

    It is our view that a proposed agreement should have been offered in the following terms:
    • An annual two percent pay increase for all members over a three-year agreement.
    • No changes to current workplace conditions.
    • A notional commencement date of 8 March 2016, being the date of expiry of the 2012-16 Enterprise Agreement.
    • The commencement of a properly planned bargaining process in early 2018.
    We look to the ELEA as the perfect example of how the bargaining process should work – the maximum allowable pay rise applied to existing conditions delivered an 80% yes vote first time around.

    As outlined by the Fair Work Act, Good Faith Bargaining relates to the way parties in an agreement negotiation must behave. It means that all parties involved in bargaining must:
    • Attend, and participate in, meetings at reasonable times
    • Disclose relevant information (other than confidential or commercially sensitive information) in a timely manner
    • Respond to proposals made by other bargaining representatives in a timely manner
    • Give genuine consideration to the proposals of other bargaining representatives and provide reasons for responses to those proposals
    • Refrain from capricious or unfair conduct that undermines freedom of association or collective bargaining
    • Recognise and bargain with the other bargaining representatives to the agreement
    • Parties do not have to agree and do not have to concede their position.

    To commence Industrial Action, a list of proposed actions has to be formulated, served on the employer and lodged with the Fair Work Commission. All industrial Action must be protected by an order of the FWC, otherwise it is illegal. Once the proposed actions have been before the FWC a ballot of members must be held to authorise such action. Half of all AFPA members would have to vote in the ballot and half those votes must be in favour of taking the action.

    The FWC when considering whether to order a protected action ballot, must be satisfied that the bargaining representative of the employees seeking the ballot have been genuinely trying to reach agreement. The FWC may suspend or terminate industrial action even if it is protected in certain circumstances and in our case, if it threatens to endanger the life, personal safety, health or welfare of the population or of part of it.

    Our alternative to taking protected industrial action, which is to engage in activities otherwise illegal but for the protection of the Fair Work Commission, is for members to demand their entitlements as they currently exist under the EA and to stop working for free.

    The AFP is using electronic voting technologies to allow you to cast your vote on the enterprise agreement. The Fair Word Act (s181(3)) specifically provides that the employer may request employees to approve an agreement by an electronic method.

    Before putting the agreement to you for vote, the AFP must take all reasonable steps to ensure employees have access to the written text of the agreement and any material incorporated by reference in the agreement. The AFP must take all reasonable steps prior to the commencement of consideration to inform employees of the time and place the vote will occur and the voting method to be used.

    The AFP will not be in a position to see how you voted as an individual, and will only receive the final results.

    An arbitrated outcome before the Fair Work Commission is the solution of last resort. It only becomes available once bargaining processes have failed to reach agreement multiple times.

    The Fair Work Commission is also the body which recently decided to cut the weekend penalty rates of hospitality and retail workers, so there should be no expectation of a favourable outcome from having the FWC arbitrate our agreement.

    The Agreement

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    View The Agreement.pdf

    Workplace Bargaining Policy

    The AFP are obliged to enter into workplace agreements that are consistent with the Government’s Workplace Bargaining Policy.
    This policy applies to the AFP as they are a non-APS Australian Government entity and it provides a framework for agencies to implement terms and conditions of employment that are in the Government’s view affordable and support modern and agile public sector workplaces.

    The AFPA has called on the Government to exempt the AFP from their policy. This policy is not designed to meet the needs of a modern dynamic policing organisation. It is our view that the AFP as an operational agency needs the freedom to develop an agreement which supports operational outcomes and delivers in a timely manner, a moderate pay rise increase, without an accompanying reduction in conditions of service.

    The AFPA believes the AFP is using the policy to justify offensive proposals that will have an adverse impact on your salaries and working conditions.

    View Workplace Bargaining Policy here