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Workplace agreements fair work act ombudsman employment law australia. Employees rights and your rights at work rights and responsibilities of employees. Workplace law and industrial relations law legislation along with enterprise bargaining agreements and employer and employee rights and responsibilities.

Collective Bargaining

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When modern awards commenced on 1 January 2010 they imposed new employment conditions on many employers and these conditions may not be suited to the employer’s business.

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.

Employees may initiate negotiations for a new agreement.

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.

  • 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.
  • 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.

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 the Fair Work Commission to conduct a poll with all the employees to see if there is a majority who wish to negotiate a new agreement. See:  Section 236 Fair Work Act 2009

If the Fair Work Commission 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’

Step 1: The Employer must notify employees of their rights

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 the Fair Work Commission (FWC) makes a Majority Support Determination.

A majority support determination is a ruling that FWC 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.

Step 2: Negotiate the terms of the agreement

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 that he wants changed which 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 the Fair Work Commission 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 the Fair Work Commission 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.

Step 3: The Employer must present a draft of the Enterprise Agreement to employees

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 representative's views on these changes. This gives the employee a basis on which to decide on how to vote.

Step 4: Employees must vote on the agreement

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:

  • 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.
  • 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.
  • 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.

Step 5: Lodging the Enterprise Agreement with the Fair Work Commission

After employees have approved an enterprise agreement, it must be lodged with FWC for approval within 14 days of the majority vote. You can check this by looking at the the Fair Work Commission web page Agreements in Progress

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 the Fair Work Commission 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 the Fair Work Commission (FWC). The approval process will include the application of the ‘better off overall test’ (BOOT). FWC 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 FWC will assess if the Enterprise Agreement contains:

  • a nominal expiry date (this date must not be more than 4 years after the day on which the Fair Work Commission approves the agreement);
  • a dispute resolution term;
  • a flexibility term that enables individual employees to enter into flexibility arrangements; and
  • a consultation term ensuring employers will consult with employees about major workplace changes.

Enterprise agreements cannot contain any content that:

  • is discriminatory;
  • is objectionable;
  • excludes or modifies the application of the unfair dismissal provisions in the Fair Work Act;
  • sets out right of entry provisions that are inconsistent with the law; and
  • 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.

Do You have to Make an Collective Agreement?

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 Fair Work Commission (FWC) within 21 days of the ending your employment. If this has happened to you make a post on the Security Guard Forum.

Workplace Industrial Relations and Bargaining Representatives

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 representative to represent you when negotiating a collective bargaining agreement. A bargaining representative can be a:

  • trade union;
  • solicitor;
  • friend;
  • relative; or
  • Industrial Relations Consultant

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 representative. If you are negotiating an employee collective agreement and you do not wish to have your identity revealed to your employer, the bargaining representative may request the the Fair Work Commission to issue a certificate that will not identify you or any of the other employees concerned.

The employer must give the bargaining representative a reasonable chance to meet and discuss the agreement with them in the 7 days prior to the employees approving the agreement.

Termination of an Enterprise Agreement

A workplace agreement is ended either:

  • by approval or agreement between the parties at any time, or
  • 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.

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.

If you believe that:

  • your employer has not complied with the proper requirements of agreement making (see above); or
  • 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.