Fair Work Act 2009
s.156 - 4 yearly review of modern awards

4 yearly review of modern awards—Real Estate Industry Award 2010
(AM2016/6)

4 yearly review of modern awards – Real Estate Industry Award 2010 – substantive matters – classifications – work-value – commission-only employment – minimum income threshold – allowances – further correction order.

[1] The decision issued by this Full Bench on 17 January 2018 [[2018] FWCFB 354] as corrected on 25 January 2017, is further corrected as follows:

•  The reference to “Level 4” in the final sentence of [19] is substituted with a reference to “Level 5”.

•  The relativities rates in [20] are substituted by the following:

Level 1 – Associate

Year 1 – 90%

Year 2 – 95%

Level 2 – Representative Level – 100%

Level 3 – Supervisory Level – 110%

Level 4 – In charge Level – 115%

•  The relativities in [21] are substituted by the following:

Level 1

Year 1 – 91.31%

Year 2 – 95.83%

Year 3 – 98.83%

Level 2

Year 1 – 100%

Year 2 – 101.85%

Level 3 – 105.62%

Level 4 – 110.91%

Level 5 – 115.41%

•  The table at [22] is substituted by the following table:

•  The amount “$51.80” in [23] is corrected to be “$11.40”.

•  An amended draft determination is attached to this correction order.

VICE PRESIDENT

Printed by authority of the Commonwealth Government Printer

<PR599909  MA000106>

Fair Work Act 2009 s.156—4 yearly review of modern awards

REAL ESTATE INDUSTRY AWARD 2010
[MA000106]

Four yearly review of modern awards – Real Estate Industry Award 2010 – substantive variations.

A. Further to the decisions issued in this matter on 6 July 2017 [[2017] FWCFB 3543] and 17 January 2018 [[2018] FWCFB 354] the above award is varied as follows:

1. By deleting the table appearing in clause 14.1 and inserting the following table:

2. By renumbering existing clauses 14.2 to 14.5 as 14.3 to 14.6.

3. By inserting a new clause 14.2 as follows:

14.2 No employee will suffer a reduction in wages as a result of the introduction of the new classification structure and wage rates.

4. By deleting the words “At 18 years” appearing in the table in clause 14.3(a) and inserting the words “Under 19 years”.

5. By deleting clause 16.1 and inserting the following:

16.1 Agreement to enter into commission-only employment arrangements

An employee engaged in a property sales classification (other than a casual employee) may agree with the employer to be paid on a commission-only basis. Such an employee is considered a pieceworker and is referred to in this award (and within the real estate industry) as a commission-only employee. An employee paid on a commission-only basis must not be engaged as a casual employee.

6. By deleting clause 16.2 and inserting the following:

16.2 Objective of commission-only employment

The objective of commission-only employment arrangements is to provide a mechanism by which a salesperson who meets the requirements set out below should achieve remuneration of 125% or more of the annualised minimum wage that an employee working in the same property sales classification under this award would be entitled to be paid.

7. By renumbering clauses 16.3 to 16.6 as 16.4 to 16.7.

8. By inserting a new clause 16.3 as follows:

16.3 Minimum requirements for commission-only employment

(a) A person may only enter into an agreement to be a commission-only employee when all of the following conditions have been satisfied:

(i) the employee and the employer have made a written agreement as provided in clause 17.1 that the employee will be remunerated on a commission-only basis setting out the basis upon which the entitlement to commission will be calculated as provide in clause 17.1;

(i) the employee has been issued with a real estate agent’s license or is registered or permitted to perform the duties of a real estate salesperson under real estate law;

(iii) the employee has been engaged in property sales or commercial, industrial or retail leasing as a Real Estate Employee Level 2 or (with any licensed real estate agent) or was an active licensed real estate agent for at least 12 consecutive months in the 3 years immediately prior to entering into a commission-only agreement;

(iv) the employee is at least 21 years of age;

(v) the employee is not engaged as a casual, a junior, a Real Estate Employee Level 1 or a trainee; and

(vi) for an employee employed on a commission-only basis after 2 April 2018 the employee can establish (with the present or any past employer) that he or she has achieved the Minimum Income Threshold Amount (MITA) prescribed by clause 16.4 (as may be amended from time to time). Provided that, the MITA will not have to be achieved in circumstances where the employee has operated his or her own real estate business within the last 3 years.

(b) An employee who qualified to be employed on a commission-only basis under this award prior to [insert date of amendment] will continue to be eligible for commission-only employment under the terms of this award as long as the employment with that employer continues, and subject to continuing to meet the MITA as required in clause 16.4.

9. By deleting clause 16.4 and inserting the following:

16.4 Minimum income threshold amount (MITA)

(a) For the purpose of entering into commission-only employment, the MITA has been achieved if the employee can establish that in any consecutive 12-month period in the 3 years immediately preceding entering into the commission-only agreement, the employee received annual remuneration (including any commission or bonus payments) at least equal to 125% of the employee’s classification rate as specified in clause 14.1, calculated as an annual amount, excluding statutory superannuation.

(b) The type of documents that an employer may rely upon to establish that the MITA is satisfied, include but are not limited to:

•  individual payment summaries;

•  pay slips; and/or

•  commission statement records or other sales records.

(c) The employer must be satisfied on reasonable grounds that the employee has established that he or she has achieved the MITA within the prescribed time period.

(d) At the request of the employer, the employee will provide the employer with a statutory declaration which declares the accuracy and legitimacy of any documentation provided by the employee under clause 16.4(b).

10. By deleting clause 16.5(a) and inserting the following:

(a) clause 10.3—Part-time employment;

11. By renumbering clause 16.5(b) to (e) as 16.5(c) to (f).

12. By inserting a new clause 16.5(b) as follows:

(b) clause 10.4—Casual employment;

13. By deleting the words “35% of the employer’s net commission” from clause 16.6(a) and inserting the words “31.5% of the employer’s gross commission as defined in clause 3—Definitions and interpretation”.

14. By inserting clause 16.8 as follows:

16.8 When commission-only arrangements must cease

(a) The gross income of commission-only employees must be reviewed annually to establish gross income.

(b) For employees on commission-only arrangements entered into prior to 2 April 2018 the review must occur no later than 12 months from 2 April 2018.

(c) For employees engaged on commission-only arrangements entered into after 2 April 2018 the review must occur no later than 12 months from the date those arrangements were entered into.

(d) Where the review establishes that the gross income of a commission-only employee for the year under review is less than the MITA as provided in clause 16.4 the commission-only arrangement must cease.

15. By inserting clause 16.9 as follows:

16.9 Resumption of commission-only arrangements

Where a commission-only employee has ceased to be employed on a commission-only arrangement because of the operation of clause 16.8, the three year period for the purpose of assessing whether the employee has achieved the MITA for the purposes of entering into further commission-only arrangements, commences from the date the employee ceased to be a commission-only employee because of the operation of clause 16.8.

16. By deleting clause 17.1 and inserting the following:

17.1 Written agreements generally

(a) Once a written agreement has been made as provided for in clause 15—Payment by wages with commission, bonus or incentive payments or clause 16—Commission-only employment, any subsequent agreement to vary the employee’s commission, bonus or incentive payment arrangements must be evidenced in a further written agreement between the employer and the employee.

(b) Where an employee agrees with the employer to a change in his or her commission, bonus or incentive arrangement, the employee will be entitled to receive sales commission, bonus or incentive payments calculated in accordance with the written agreement (whether made under this clause or clause 15) which was in force on the date the contract for sale or lease of property became legally enforceable. Provided that in circumstances where a non-commission-only employee is changing to a commission-only agreement, then the commission-only agreement must not include any provision for a deduction arising from any agreement which was in force immediately prior to the commission-only agreement becoming operative.

(c) A signed copy of every written agreement regarding commission, bonus or incentive payment arrangements must be provided by the employer to the employee.

17. By deleting clause 17.3 and inserting the following:

17.3 Entitlements after employment ends

(a) Following cessation of employment, the employee is entitled to be credited with a portion of the commission, incentive payments or bonuses calculated in accordance with the terms of the written agreement made pursuant to clauses 15 or 16 of the Award, but only in the following circumstances:

(i) where the employee’s employment is terminated for reason of the employee’s serious misconduct, there was a legally enforceable contract in place for the sale or lease of the property before the cessation date of the employee’s employment; or

(ii) where the employee is terminated for any other reason, there was a legally enforceable contract in place for the sale or lease of the property prior to the expiration date of the exclusive agency period.

(b) For the purpose of clause 17.3, “exclusive agency period” means the period for which the employer has the exclusive right to sell or lease a property under the executed and valid agency agreement that was in effect at the time the employee’s employment ceased. There is no entitlement under this clause where the property for sale or lease has been listed other than on an exclusive agency basis.

(c) Unless the written agreement made either under clauses 15 or 16 specifies otherwise, the portion of the commission, incentive payments or bonuses referred to in clause 17.3(a) must be the same as that with which the employee would have been entitled to be credited if their employment had continued.

(d) Any entitlement to commission, incentive payments or bonuses calculated under clause 17.3 only arises once the employer is paid commission by the client in respect of the sale or lease of the property to which the legally enforceable contract relates and the commission payment is cleared into the employer’s bank account.

18. By deleting the word “Where” in clause 17.4 and inserting the word “If”.

19. By deleting clause 17.5(a) and inserting the following:

(a) Commission-only employees will be paid for periods of leave to which they are entitled under the NES, at the time the leave is taken, at no less than the employee’s base rate of pay. Where an employee is subject to a commission-only agreement which provides for a percentage in excess of the minimum commission-only rate in clause 16.6 the payment made for leave may be treated as a debit on the employee’s account for this additional percentage.

20. By inserting the following sentence at the end of clause 18.1(a):

This clause does not apply to the use of a motor scooter or motor cycle.

21. By deleting the words “clauses 18.1, 18.2 or 18.4(c)” in clause 18.3 and inserting “clauses 18.1 and 18.2”.

22. By deleting clause 18.4 inserting the following:

18.4 Motor cycle allowance

(a) Where the employer requires the employee to use the employee’s own motor scooter or motor cycle in the course of employment, the employee will be entitled to be reimbursed for the use of the motor scooter or motor cycle at a rate of $0.26 per kilometre for its use in the course of employment with a maximum payment as for 400 kilometres per week. Where the employee claims the allowance under this clause, the employee must keep a record of all such usage which will show:

(i) the date and odometer reading of the first such usage of the motor scooter or motor cycle at the commencement of the log book;

(ii) the date and commencement and final odometer reading for each day on which the allowance is claimed;

(iii) total business kilometres each day;

(iv) the purpose of each usage; and

(v) the signature of the employee, certifying the usage.

23. By deleting clause 18.6 and inserting the following:

18.6 Mobile telephone allowance

(a) Where the employer requires the employee to use the employee’s own mobile phone in the course of employment and:

(i) the mobile telephone is provided under a mobile phone plan from a telecommunications provider, the employer and employee must agree in writing on the amount of reasonable reimbursement payable by the employer to the employee for the use of the employee’s mobile phone in the course of employment provided that such reimbursement must not be less than 50% of the cost of the employee’s monthly mobile phone plan, up to a maximum monthly phone plan of $100; or

(ii) the mobile phone is a pre-paid mobile phone, the employer and employee must agree in writing on the amount of reasonable reimbursement payable by the employer to the employee for the use of the employee’s pre-paid mobile phone.

(b) Without limiting an agreed method of payment for reimbursement, an employee’s salary in excess of the minimum weekly wage may be inclusive of reimbursement providing the reimbursement component of the salary is identified in the agreement.

(c) The mobile phone allowance under clause 18.6(a) is payable during the entire period of employment, except when the employee is on any period of leave either paid or unpaid.

(d) If requested, the employee must provide the employer with a copy of the mobile phone plan associated with the mobile telephone to be used by the employee in the course of employment.

(e) If the employee enters into a new mobile phone plan or arrangement with a telecommunications provider entitling the employee to a different allowance under this sub-clause, the new allowance will become payable from the first full pay period after the date the employee provides the employer with a true copy of the new mobile phone plan.

24. By deleting clause 18.7.

25. By renumbering clauses 18.8 to 18.9 as 18.7 to 18.8.

26. By deleting the table appearing in clause 18.8(b) and inserting the following:

27. By deleting Schedule B—Classifications and inserting the following:

Schedule B—Classification Structure and Definitions

B.1 Real Estate Employee Level 1 (Associate level)

B.1.1 Employees at this level have not been classified as a Level 2, 3 or 4 employee by the employer. An employee at this level is principally engaged to assist and work under the supervision of an employee(s) at a higher level. An employee at this level will not have responsibility for listing and/or selling of real property or businesses or managing rental or strata/community title properties.

B.1.2 Indicative job titles of a Real Estate Employee Level 1 (Associate Level) include:

•  Property Sales Assistant or Property Sales Associate;

•  Buyer’s Agent Assistant or Associate;

•  Property Management Assistant or Property Management Associate;

•  Property Officer;

•  Leasing Officer or Assistant;

•  Strata/Community Title Management Assistant or Strata/Community Title Management Associate.

B.1.3 Indicative tasks

Indicative tasks at this level may include:

(a) assisting an employee(s) at a higher level;

(b) under the guidance and/or direction of a more senior person, following up enquiries with sellers and/or buyers of real property and businesses;

(c) responding to general enquiries from potential tenants for properties under management;

(d) providing support to an employee(s) at a higher level in undertaking a range of functions associated with the selling, leasing and/or management of real property (including strata title management) and businesses;

(e) assisting in the preparation of documentation and correspondence in relation to the sale, leasing and/or management of real property (including strata title management) or businesses. Such documentation and correspondence may include:

•  agency agreements;

•  commercial and/or residential leases;

•  advertising material associated with the sale or leasing of real property and businesses;

•  property inspection reports (ingoing, outgoing and periodic) under the direction of a more senior person;

•  strata/community title management agreements;

•  the preparation of minutes from meetings of owner’s corporations;

(f) collecting rents from tenants and/or issuing rental receipts;

(g) investigating and arranging for the collection of rental arrears;

(h) prospecting and canvassing under direction of an employee at a higher level, including phone canvassing, door knocking and letter box dropping;

(i) in consultation with a more senior person, arranging maintenance and repairs to properties under management (including under strata/community title management);

(j) provide support to an employee at a higher level in a range of functions associated with strata and community title management, in accordance with owners’ corporations instructions;

(k) respond to general enquiries from the owner’s corporation of strata/community title schemes;

(l) assisting with auctions of real property or businesses to the extent permitted under real estate law;

(m) assisting with property inspections (including open for inspections), including the placement of sign boards, maintaining attendee lists from property inspections, opening and closing homes after inspection;

(n) assisting with post sale processes including pest and building inspections, searches and checking progress of the conveyance process; and

(o) preparing and updating rental lists and website material.

B.2 Real Estate Employee Level 2 (Representative level)

B.2.1 Employees at this level have been classified as Level 2 by the employer. An employee at this level may perform any of the duties of a Real Estate Employee Level 1 (Associate Level) but will also have responsibility for the listing and/or selling of real property or businesses, for helping clients to buy real property or businesses or for managing rental or strata/community title properties or for sourcing and/or securing new property managements (including strata title managements).

B.2.2 Indicative job titles of a Real Estate Employee Level 2 (Representative Level) include:

•  Property Sales Representative or Real Estate Salesperson;

•  Buyer’s Agent;

•  Property Management Representative or Property Manager;

•  Business Development Manager;

•  Strata/Community Title Management Representative or Strata Title Manager.

B.2.3 Indicative tasks

Indicative tasks at this level may include:

(a) performing market appraisals for sale or lease of real property or businesses;

(b) conducting and/or supervising the preparation of documentation and correspondence associated with the sale or leasing of real property or businesses. Such documentation and correspondence may include:

•  agency agreements for both sale and property management;

•  tenancy agreements;

•  rental bond documents;

•  commercial and/or residential leases;

•  advertising material associated with the sale or leasing of real property and businesses;

•  inventory reports;

•  strata/community title management agreements;

•  property inspection reports (ingoing, outgoing and periodic);

(c) conducting or supervising property inspections (ingoing, outgoing and periodic);

(d) organising advertising of a property;

(e) organising sign boards for open for inspections;

(f) conducting inspections with interested parties for real property or businesses that are for sale or lease;

(g) conducting negotiations between a prospective buyer and seller of real property or a business, or between a prospective tenant and the property owner;

(h) using personal initiative to source and secure prospective properties to sell or manage;

(i) the listing and/or sale of real property or businesses;

(j) the leasing of commercial, industrial or retail property;

(k) conducting market research and providing marketing advice to customers;

(l) conducting auctions of real property;

(m) liaising with conveyancers and solicitors involved in the sale of real property or businesses or in the commercial leasing process;

(n) assessing and processing tenancy applications;

(o) organising property repairs and maintenance, including ingoing and outgoing property condition reports;

(p) providing advice to property owners and tenants on preventative and planned maintenance;

(q) accounting for rents and expenses to property owners;

(r) liaising with and report to property owners and/or owners corporations;

(s) appearing before tenancy tribunals and providing advice to property owners on state and territory residential tenancy matters (including the termination of tenancies);

(t) attending and/or conduct strata management meetings;

(u) completing strata management documentation;

(v) carrying out all duties and functions required under a strata managing agency agreement.

B.3 Real Estate Employee Level 3 (Supervisory level)

B.3.1 A principal requirement of an employee at this level is the supervision of employee(s) classified as Real Estate Employee Level 2 (Representative Level). An employee at this level may perform any of the duties of a Real Estate Employee Level 2 (Representative Level) but will also have responsibility for the allocation of duties, co-ordinating work flow, checking progress, quality of work and resolving problems of an employee(s) at a lower level.

B.3.2 Indicative job titles of a Real Estate Employee Level 3 (Supervisory Level) include:

•  Property Sales Manager or Property Sales Supervisor;

•  Property Management Supervisor;

•  Strata/Community Title Management Supervisor.

B.3.3 Indicative tasks

Indicative tasks at this level may include:

(a) providing leadership and supervision to level 1 and level 2 employees;

(b) the supervision and/or management of work teams;

(c) implementing and/or supervising quality customer service;

(d) monitoring of operational plans;

(e) assisting in the resolution of customer complaints;

(f) monitoring safe workplace practices;

(g) managing personal work priorities and professional development of self and assisting with the professional development of others in the work team(s);

(h) training employees at lower level by personal instruction and demonstration;

(i) involvement in either selling of real property or businesses, leasing of commercial, industrial, retail or residential property, or supervision of a portfolio of rental properties or strata/community title schemes;

(j) managing the owners corporation processes.

B.4 Real Estate Employee Level 4 (In-Charge-Level)

B.4.1 Employees at this level have been classified as Level 4 by the employer. An employee at this level may perform any of the duties of a Real Estate Employee Level 3 (Supervisory Level). The employee at this level will hold applicable qualification(s) under real estate law and have been appointed by the employer to be responsible for ensuring the business complies with its statutory obligations under real estate law.

B.4.2 Indicative job titles of a Real Estate Employee Level 4 include:

•  Licensee-In-Charge;

•  Agency Manager.

B.4.3 Indicative tasks

Indicative tasks at this level may include:

(a) overall supervision and management of the office;

(b) planning and managing business finances for the organisation;

(c) ensuring that the office complies with all of its statutory obligations imposed under relevant real estate law;

(d) facilitating change and innovation.

28. By deleting Schedule E.

29. By updating the table of contents and cross-references accordingly.

B. This determination comes into operation from 2 April 2018. In accordance with s.165(3) of the Fair Work Act 2009 these items do not take effect until the start of the first full pay period that starts on or after 2 April 2018.

VICE PRESIDENT