 
Click
on bookmarks to go to the paragraph [ Employees
may initiate negotiations for a new agreement] [Step
1: The Employer must notify employees of their rights] [Step
2: Negotiate the terms of the agreement] [Step
3: The Employer must present a draft of the Enterprise Agreement to employees]
[Step 4: Employees must
vote on the agreement] [Step
5: Lodging the Enterprise Agreement with Fair Work Australia] [Do
You have to Make an Collective Agreement ?] [Workplace
Industrial Relations and Bargaining Agents] [Termination
of an Enterprise Agreement] [If you believe
that]
The
commencement of modern awards on 1 January 2010 will impose new employment
conditions on many employers and these conditions may not be suited
to the employer’s business. Under the Fair Work Act 2009,
the old term ‘Employee Collective Agreement’ is now replaced by the
term ‘Enterprise Agreement’. Entering
into an Enterprise Agreement may allow the employer to have more flexibility and
hence be competitive when making security contracts with clients.
The major cost to a Security Company is labour costs and how your
employer manages this will dictate whether he is able to competitively secure
contracts or goes out of business.
If
you enjoy working for your employer you may consider negotiating with him in an
agreement which allows him to simplify labour costs.
This is the process of bargaining where both sides come to the table with
their problems or concerns and a win win solution is reached.
Be aware that Security Industry is a cut throat game where different
companies are competing for the same contract.
Many unscrupulous security companies have previous agreements which were
made back in the Workchoices era and have cut back on wages and conditions.
Most of these agreements expire in the years past 2010 and hence the
employer who has this agreement has an unfair advantage over the employer who
does the right thing by his employees.
If
you are working under the conditions of a previous agreement which was made some
years ago and that agreement has expired then that agreement continues to
operate unless the employer or employees wish to negotiate a new agreement.
This is an ideal time to negotiate because the new agreement will be
assessed against the provisions in the Security Services Industry Award 2010 and
will lead to better pay and conditions than the previous agreement.
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If
you are a union member check with your union to see if the pay and working
conditions that you presently work under is in line with other employees in
the Security Industry. If
the union suggests that you can improve your pay and conditions, engage the
union to go through the process of notifying your employer that you want to
negotiate a new agreement.
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If
you do not belong to a union then organize your fellow workers into an
‘employee group’ to contribute to a fund and employ an Industrial
Relations Consultant (IRC) to consult with employees in negotiating an
agreement. Remember that
the cost of employing a IRC is a once only cost and should be weighed
against the cost of union membership.
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Even
if you consider there is only a small amount of workers interested in
negotiating an agreement, approach your employer and see if he wishes to
negotiate. If your
employer refuses to negotiate, your Industrial Relations Consultant or your
union can apply to Fair Work Australia to conduct a poll with all the
employees to see if there is a majority who wish to negotiate a new
agreement. Section
236 Fair Work Act 2009.
If
Fair Work Australia determines that there is a majority of employees wishing
to negotiate, which is called a Majority Support Determination, your
employer by law must ‘negotiate in good faith’
Employers
must notify all employees who will be covered by an enterprise agreement of
their right to be represented by a bargaining representative during
negotiations. This
notification must occur no later than 14 days after an employer agrees to
bargain OR after Fair Work Australia (FWA) makes a Majority Support
Determination. A majority support determination is a ruling that FWA can make
when a majority of employees who will be covered by a proposed agreement want to
bargain about it.
Legislation
imposes an obligation on employers to take all reasonable steps to give a
‘notice of representational rights’ in a particular form to each employee
who will be covered by the agreement and who is employed at the
notification time.
If the employer elects to give the notice to employees personally, then he must
do so for each employee who will be covered by the agreement. Employers must do
this even if employees are unlikely to remain employed at the time the agreement
will take effect, i.e. the employee will be made redundant or is engaged only
for seasonal work.
When the terms of an enterprise agreement are being negotiated, the parties
involved must bargain in ‘good faith’.
Bargaining in ‘good faith’ means that your representative must attend
and participate in all meetings provided they are at reasonable times and your
employer must genuinely consider all proposals made by the employee’s
representatives.
If
your employer is initiating the negotiation then there are conditions he wants
changed that are different to the Security Services Award 2010.
Identify these proposed changes that are a detriment to the working
conditions contained in the award and ask what he is willing to compensate in
return. These may be other
favourable working conditions or a monitory compensation i.e. a raise in pay or
penalty rates.
If
your employee group is initiating the negotiation then you have a set of demands
and the employer will want to know, if he agrees to them, what working
conditions or pay rates or penalty rates can be negotiated in his favour.
There
is nothing in the Fair Work Act that says your employee group have to reach
agreement with the employer’s bargaining representative or other employee
representatives before putting the proposed agreement to a vote.
If
your employee group seek to put the proposed agreement to an employee vote
without agreement from the other bargaining representatives, the bargaining
representatives may apply to Fair Work Australia for a bargaining order to
restrain you from doing so on the basis that your employee group have not
bargained in “good faith”. Your
employee group can protect itself to such an order by complying with the ‘good
faith bargaining requirements’ contained in the Fair Work Act.
This
requires that your employee group explain to the bargaining representatives why
you insist on having the disputed provisions in the agreement before you request
employees to vote on the agreement and need to back up those explanations with
relevant information.
Your
employee group can ask Fair Work Australia to conciliate and, if necessary,
arbitrate the sticking points. The bargaining representatives in dispute would
need to agree to that process – and it would be costly and time consuming.
Involve an independent mediator to try and resolve the stalemate.
After the bargaining period the employer must provide a draft of the proposed
enterprise agreement to the employees at least 7 days before they are asked to
vote on it.
The
Fair Work Act requires an employer to take all reasonable steps to ensure that
the terms of an enterprise agreement, and the effect of those terms, are
explained to employees before the vote. Where
the proposed agreement replaces an existing agreement, the employer must provide
some comparison between the proposed agreement and the existing agreement.
If
the agreement makes reference to any other agreement or award then a copy of
that agreement or award must accompany the draft proposed enterprise agreement.
A typical clause in most agreements state that;
To
remove any doubt this agreement expressly excludes and completely displaces the
Security Services Industry Award 2010 (or any other agreements that may be in
force at the time)
A
copy of any of these documents that have been excluded or displaced must
accompany the draft agreement that is presented to workers. This is
because anyone can make a comparison and see what has changed.
The
Fair Work Act requires an employer to take all reasonable steps to ensure that
the terms of an enterprise agreement (and the effect of those terms) are
explained to employees before the vote. This would involve a
document accompanying the draft agreement or a general meeting of employees to
explain what conditions have been changed and the different bargaining agents
views on these changes. This gives the employee a basis on which to
decide on how to vote.
Before an enterprise agreement can be lodged, employees must approve it by
voting on it. The employer will need to notify employees when and where the vote will occur
and what method will be used i.e. will the vote be determined by paper ballot or
show of hands etc.
Have
your employee group representative insist on a fair and accountable voting
system. One voting system
which is a secret ballot and fully accountable is thus:
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All
bargaining representatives agree to rent a post office box at a local Post
Office for the period of the ballot.
Entrust all the keys to the post office box to the Post Office with
the condition that none of the keys be issued until a certain time and date
which will be the day after the last day of voting i.e. the 8th
day.
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Prepare
voting papers for each employee entitled to vote and each representative
initial each one. No
employee will be required to identify themselves on the ballot paper.
Provide each employee with a stamped envelope and the voting paper.
The voting paper will have the post office box address printed and
when the employee votes they seal the vote in the envelope and address and
mail it.
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On
the designated day the votes are retrieved from the post office box and
counted. Attention
should be made to the validity of the ballot paper.
Any ballot paper which does not have the initials of all the
bargaining representatives should be made null and void and not counted.
An
enterprise agreement will be made when the majority of employees (greater than
50 %) vote to approve the agreement.
After employees have approved an enterprise agreement, it must be lodged with
FWA for approval within 14 days of the majority vote.
You can check this by looking at the Fair Work Australia web page Applications
for approval of enterprise agreements
Keep
an eye on this webpage to make sure the agreement has been lodged.
There will be a delay before the agreement is approved by Fair Work
Australia and it could take many
months. For the period that
the agreement is waiting to be approved, your working conditions and pay are
governed by the Security Services Industry Award 2010.
If you are not being paid or enjoying working conditions according to the
award for this period make a complaint to Fair Work Ombudsman.
An
enterprise agreement will come into operation 7 days after it is approved
by Fair Work Australia (FWA). The
approval process will include the application of the ‘better off overall
test’ (BOOT). FWA will apply this test to ensure that the employees are better
off overall under the enterprise agreement in comparison to the Security
Services Industry Award 2010.
There
are also certain rules about which terms can and cannot be included in an
enterprise agreement and FWA will assess if the Enterprise Agreement contains:
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a
nominal expiry date (this date must not be more than 4 years after the day
on which Fair Work Australia approves the agreement);
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a
dispute resolution term;
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a
flexibility term that enables individual employees to enter into flexibility
arrangements; and
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a
consultation term ensuring employers will consult with employees about major
workplace changes.
Enterprise
agreements cannot contain any content that:
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is
discriminatory;
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is
objectionable;
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excludes
or modifies the application of the unfair dismissal provisions in the Fair
Work Act;
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sets
out right of entry provisions that are inconsistent with the law; and
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authorizes
industrial action prior to the nominal expiry date of the agreement.
· The
employer must inform his employees immediately of their right to be
represented by a union during the agreement making process.
You
do not have to enter into a proposed workplace agreement. If your
employment is covered by the Security Services Industry Award 2010 or existing agreement, then those documents
will outline your minimum conditions of employment.
It
is unlawful for a security company to apply force or pressure, or to make false and
false statements, to try to make security officers enter into a workplace agreement.
This is deemed as workplace harassment. It is also unlawful for an employer to sack you for refusing to make, bargain,
sign, extend, vary, or terminate an Enterprise Agreement.
If
one of the reasons for your firing relates to such a refusal, you can lodge an
unlawful dismissal claim with the Australian
Industrial Relations Commission (AIRC) within 21 days of the ending
your employment. If this has happened to you make a post on the
Security Guard Forum.
Good
workplace industrial relations are vitally important when considering a collective
agreement. Security operations require most security workers to work
in solitary positions. Therefore you rarely meet your fellow security guards or
crowd controllers. It is important that you make contact with as
many fellow workers and obtain their mobile phone numbers. Starting
a post in the Security Guard Forum may unite other
fellow workers.
You
may appoint a bargaining agent to represent you when negotiating a collective
bargaining agreement. A bargaining agent can be a:
Negotiating a collective agreement requires a specialist who is
fluent in workplace law and has the ability to obtain the best agreed result.
Seek
the services of a professional (Industrial Relations Consultant) or an ex union
official who is familiar with award conditions if your workplace is not unionised. If you intend to take on an Industrial Relations
Consultant, they will charge you professional rates. A professional will be
able to tell you in plain English what is contained in the proposed
agreement. Remember a small loss in your weekly pay can mount up
over a year to a large amount. Balance this against what it would
cost to engage an Industrial Relations Consultant.
Organize before
the security company proposes any agreement. Look up 'Industrial Relations
Consultant' in your Yellow Pages and ask what their fees are. Gain agreement
in your workplace that you will employ an IRC when an agreement
proposition is put to you.
Otherwise have an agreement with your work colleagues to vote down
any proposal. Unless there are clauses within the Security
Services Industry Award 2010 that
you want to change in your favour do not enter into an agreement.
An
employer must not refuse to recognize a bargaining agent. If you
are negotiating an employee collective agreement and you do not wish to have
your identity revealed to your employer, the bargaining agent may request the Fair Work Australia
to issue a certificate that will not identify you or any of
the other employees concerned. The employer must give the bargaining agent a
reasonable chance to meet and discuss the agreement with them in the 7 days
prior to the employees approving the agreement.
Click:
Bargaining
Agent
If
your workplace has negotiated an enterprise agreement and you engaged a
bargaining agent or it was union workplace agreement negotiated by the LHMU then
make a post on the Security Guard Forum of your
views.
A
workplace agreement is ended either:
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by
approval or agreement between the parties at any time, or
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without
the consent
of one party, but only after the agreement has passed its supposed expiry
date.
Before
approval to terminate an agreement, the security business should give the employees an
information statement about the termination. Either party to the
agreement can end an agreement by giving to the other side 90 days written
notice or the notice period specified in the agreement (but no less than 14
days). If your workplace terminated an agreement let others
know what happened on the Forum.
This
website 'Pay
Scale' gives wage comparisons for the Security Industry. Use it
as a guide to determine what is the average wage in Australia.
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You
therefore need to look at the proposed agreement in detail and see whether it
deals with, or states that you will not have certain conditions. You
should check that the collective bargaining agreement provides for pay increases.
If not, you are locked into a certain rate of pay for up to five years or
more.
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your
employer has not complied with the proper requirements of
agreement making (see above); or
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has
applied force or threat, or made false and misleading
statements, in order to make you to enter into a workplace agreement you
should contact your union or the Fair
Work Ombudsman.
If your employer is found guilty of
workplace harassment by making
a false or misleading statement, he/she will be fined and may serve time in
jail.
The
Fair Work Ombudsman has the power to look into suspected breaches of the law and
to take legal action against offending employers. Failure to meet
the terms of the proper requirements may render an agreement void.
If your employer does not comply with the terms of a workplace agreement that
covers you, you should also contact your union or the Fair
Work Ombudsman to protect your employee rights. Let others know what happened by making a post
on the Security Guard Forum
The
Fair Work Ombudsman also ensures and compels compliance with workplace
agreements.
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