| [2018] FWCFB 1882 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.156 - 4 yearly review of modern awards
4 yearly review of modern awards
(AM2016/6)
VICE PRESIDENT HATCHER |
MELBOURNE, 29 MARCH 2018 |
4 yearly review of modern awards – AM2016/6 – Real Estate Industry Award 2010 – substantive matters – further decision.
[1] In our decision released on 6 July 2017 1 in relation to the 4 yearly review of the Real Estate Industry Award 20102 (REI Award), we gave provisional approval to amendments to that Award dealing with the Minimum income threshold amount (MITA) for entry into commission only-employment arrangements and the requirements which must be met by employees in order to remain on such arrangements. In relation to commission-only employees being engaged on part-time or casual employment we stated:
We are also of the view that because the REI Award does not provide for overtime payments for commission-only employees or any restrictions on when hours may be worked, part-time and casual employment concepts are neither useful nor relevant for commission-only employees. The MITA clause that we propose will simply set the MITA at 125% of the relevant weekly wage rate – either the wage rate for Property Sales Representative or Property Sales Supervisor – and the minimum will apply regardless of the hours worked by the employee.
We have also formed an in-principle view that commission-only employees should not be employed on a casual basis and that the REI Award provision in relation to the MITA should make this clear. If there is capacity to employ commission-only employees as casuals, then consideration would need to be given to the manner in which the MITA will reflect the casual loading which would be payable to such employees in lieu of leave and other entitlements. The parties should consider these matters and provide their views in relation to them.” 3
[2] On 17 January 2018, we released a further decision 4 approving a new classification structure and relativities for the REI Award agreed by the parties. In that Decision at [29] we also set out other matters that had been discussed and agreed between the parties for inclusion in the REI Award including: “Non-application of casual and part-time employment provisions to employees on commission only arrangements”.
[3] A draft determination in relation to the amendments dealt with in the decision of 17 January 2018 was released with the decision. That draft determination included an amendment to the previous clause 16.4(a) of the REI Award involving renumbering the clause as 16.5(a) and deleting the reference to “Payment for part-time employment” and replacing it with a reference to “Part-time employment”. That amendment was also included in an exposure draft of the REI Award published on 31 January 2018. 5
[4] The effect of such an amendment would prevent the employment of commission-only employees on a part-time basis, as provisionally determined in the 6 July 2017 decision and confirmed in the 17 January 2018 decision.
[5] In a further decision issued on 16 March 2018 6, we dealt with additional amendments requested and agreed by the parties consequential on the new classification structure and MITA arrangements. In the 16 March decision no reference was made by any party to the exclusion from commission-only arrangements of part-time employees.
[6] A final determination giving effect to all the amendments, which is to come into effect on 2 April 2018 as previously agreed by the parties and endorsed by the Full Bench, was issued concurrently with the decision of 16 March 2018. 7 That final determination also included the amendment to clause 16.5(a) discussed above. A consolidated version of the REI Award incorporating this amendment was also published on 22 March 2018.
[7] On 26 March 2018 correspondence was received from the Real Estate Employers’ Federation asserting that the Full Bench did not determine to exclude the employment of commission-only employees on a part-time basis and seeking a correction of the determination. Other interested parties, including the Real Estate Employers’ Federation of Western Australia, the Property Services Association – Queensland Branch and the Australian Property Services Association, raised the same issue.
[8] Deputy President Asbury conducted a conference of the parties on Wednesday 28 March 2018 at which the parties asserted that they had not understood that the Full Bench intended to exclude the employment of commission-only employees on a part-time basis and that this was a substantial change to the REI Award and current employment arrangements.
[9] The timing and the manner in which this matter has emerged is unsatisfactory. The provisional view of the Full Bench with respect to part-time employment and commission-only arrangements has been clear for some time. The parties have had a significant period in which to consider and comment on proposed amendments to the REI Award that give effect to that provisional view and have advanced nothing to the contrary.
[10] Regardless of our views about the unsatisfactory manner and timing of this issue, we accept that all of the parties have misunderstood our provisional view as conveyed in our earlier decisions and iterations of REI Award exposure draft and have consequently not appreciated the effect of the determination to give effect to the amendments to the REI Award canvassed in our earlier decisions. We also accept that some other provisions of the REI Award which were not proposed to be amended may have added to the confusion.
[11] We are also of the view that it is important that the implementation of other significant amendments to the REI Award and including long overdue work value based wage increases proceed without delay from 2 April 2018 as we have previously indicated.
[12] On that basis, we are prepared to provisionally amend the determination to retain the wording of the current exclusion provision so that only clause 10.3(b)—Payment for part-time employment, is excluded, rather than all of the provisions of clause 10.3—Part-time employment.
[13] An amendment to the determination to this effect will be issued concurrently with this decision. The determination, as amended will, come into operation on 2 April 2018 and items in the determination will take effect from the start of the first full pay period on or after 2 April 2018.
[14] We intend to relist the matter to allow the parties to make further submissions and call evidence in relation to our view that part-time employment is neither useful nor relevant for commission-only employees, and to finally determine this issue after considering any further submissions and evidence that the parties may place before the Full Bench.
VICE PRESIDENT
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3 [2017] FWCFB 3543 at [107]–108]
5 Exposure draft, republished 30 January 2018.