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.

Background

[1] Section 156 of the Fair Work Act 2009 (FW Act) requires the Commission to review all modern awards every four years (the Review). As part of the Review of the Real Estate Industry Award 2010 (the REI Award), exposure drafts have been published on 18 December 2015, 29 April 2016 and 11 July 2017. The exposure draft published on 29 April 2016 incorporated a number of changes to the REI Award agreed by the parties. Issues which remained in contest were referred to this Full Bench for determination. We issued a decision on 6 July 2017¹ (July 2017 decision) determining the contested matters and the Exposure Draft of the REI Award issued on 11 July 2017 included the matters determined by the Full Bench. Some of the matters were determined on a provisional basis pending further input from the parties.

[2] One of the matters provisionally determined by the Full Bench was that an increase to the minimum REI Award wage for Property Sales Representatives should be granted on work value grounds. The Full Bench also provisionally determined that the Property Sales Representative classification is the appropriate benchmark for other classifications in the REI Award. Rather than determining the relativities of other classifications in the REI Award we decided that the parties should hold further discussions to attempt to reach agreement on this matter. A conference of the parties was conducted on Friday 3 November 2017 and agreement was reached in relation to relativities for other classifications and on the wording of other clauses of the REI Award in relation to which the Full Bench had expressed in principle or provisional views.

Classification Definitions and Relativities

[3] In the July 2017 decision we set out our provisional views in relation to classification definitions and relativities in the REI Award. We indicated that we were satisfied in principle, on work value grounds, that an increase to the minimum rate for the classification of Property Sales Representatives from $713.20 per week to $783.30 – a total increase of $70.10 per week – was justified. We also expressed a provisional view that work value increases were justified for other classifications on the basis that a comparison of comparable minimum rates for classifications in other modern awards makes it clear that the classifications in the REI Award are undervalued. We expressed the view that on an objective consideration of the classification definition for Property Sales Representative, the work was undervalued when the REI Award was made, and continues to be so, notwithstanding that there has been no change to the work since the REI Award was made. Further, we noted that the classifications in the REI Award had not previously been the subject of a work value consideration.

[4] On the basis of these provisional views, the parties have held discussions facilitated by the Commission and have reached agreement in relation to classification definitions and relativities for other classifications in the REI Award. The Full Bench having considered the position agreed between the parties endorses it in principle, subject to a further exposure draft of the REI Award and a draft determination setting out the amendments to the current REI Award to give effect to the changes being published, to allow interested parties who may not have participated in the conference on 3 November 2017 or in earlier proceedings before the Full Bench, to consider and provide submissions on these matters. In summary the agreed classification structure and definitions for the REI Award are as follows:

•  Classifications and related definitions for Property Sales Associate, Property Management Associate and Strata/Community Title Management Representative have been amalgamated into a single new classification – Real Estate Employee Level 1 (Associate Level) – with pay points within that level for employees within the first twelve months of employment and after the first twelve months of employment;

•  Classifications and related definitions for the classifications Property Sales Representative, Property Management Representative and Strata/Community Title Management Representative have been amalgamated into a single new classification - Real Estate Employee Level 2 (Representative Level);

•  The Representative Level is the appropriate benchmark for the relativities and minimum wage rates for other classifications in the REI Award;

•  Classifications and related definitions for Property Sales Supervisor, Property Management Supervisor and Strata/Community Title Management Supervisor – have been amalgamated into a single classification – Real Estate Employee Level 3 (Supervisory Level); and

•  A new classification – Real Estate Employee Level 4 (In-Charge Level).

[5] For the same reasons that we concluded that an increase on work value grounds was justified for Property Sales Representatives, we are also of the view that proportionate increases are justified for other classifications under the REI Award. The classifications in the REI Award have not been the subject of work value consideration since the REI Award was made. The wage rates were derived from a number of State awards and there can be no implicit assumption that at the time the REI Award was made that the classifications and wage rates in those awards were consistent with the modern awards objective.

[6] The current classification definitions in the REI Award contain role definition statements and indicative tasks. Generally the parties agree that those definition statements and indicative tasks should be amalgamated into three broad classifications for Associate, Representative and Supervisor. It is not in issue that the tasks set out in the current REI Award classification definitions are undertaken by employees covered by the REI Award. It is evident from a comparison between the current classification definitions in the REI Award and those in the Clerks Private Sector Award 2010 (the CPS Award) that the classifications in the REI Award are undervalued.

[7] The CPS Award has a five level classification structure. Level 1 has three pay points Year 1, Year 2 and Year 3. Level 2 has two pay points – Year 1 and Year 2. The benchmark for relativities between classifications in the CPS Award was established as the Level 2 Year 1 rate which was set at the 100% or trade equivalent level. The classification Level 1 Year 1 in the CPS Award has a wage rate which is 91.3% of the Level 2 Year 1 rate. The classification of Level 1 Year 2 in the CPS Award has a wage rate which is 95.7% of the Level 2 Year 1 Rate and the Level 1 Year 3 classification has a wage rate that is 98.8% of the Year 2 Level 1 Rate.

[8] The characteristics for the classification of Level 1 in the CPS Award include:

•  Routine clerical and office functions requiring an understanding of clear and straightforward rules or procedures;

•  Problem solving by reference to established practices, procedures and instructions;

•  Responsible and accountable for own work within established routines methods and procedures; and

•  Assistance to less experienced employees in the same classification.

[9] The indicative tasks for Level 1 employees in the CPS Award include: reception/switchboard; issuing and receiving standard forms; maintenance of basic records; filing, collating, photocopying; recording, matching, checking and batching of accounts, invoices, stores, requisitions etc; and operation of keyboard and other equipment. The minimum award rates in the CPS Award for the Level 1 Classification are as follows:

Year 1 - $738.80

Year 2 - $775.40

Year 3 - $799.60

[10] The current definitions in the REI Award for Associate level classifications for Property Sales, Property Management and Strata/Community Title Management contain indicative tasks including:

•  Following up and responding to enquiries in relation to buyers, sellers, tenants or owner’s corporation of strata and community title schemes;

•  Preparing contracts of sale, commercial leases, agreements including tenancy and strata/community title agreements;

•  Correspondence with buyers, sellers, tenants and owner’s corporations;

•  Organising advertising for properties for sale or lease;

•  Financial matters including collecting rents, dealing with rental arrears, collection and maintenance of sinking fund arrears;

•  Conducting inspections and preparing reports in relation to inventory and condition including to property owners;

•  Arranging maintenance and repairs to properties in consultation with more senior persons; and

•  Assist with organising and conducting strata management meetings including meetings of owners’ corporations.

[11] The current minimum adult rates of pay in the REI Award for the Associate Level classifications are:

First six months - $694.90

Second six months - $719.20

[12] In our view, an examination of the scope of indicative tasks for REI Award classifications at the Associate level makes it clear that the skills and competencies required to be exercised by such employees are at least equivalent to those at Level 1 of the CPS Award. It is also clear that the minimum weekly wage rates for Associate Level employees in the REI Award are significantly below those prescribed for Level 1 employees under the CPS Award who are performing work that requires at least the same or similar skills. It is apparent that the Associate level classifications in the REI Award are undervalued in terms of the minimum rates prescribed in the REI Award for adult employees classified at that level, when compared to equivalent classifications under the CPS Award.

[13] The relativities and wage rates agreed by the parties for the Associate level classifications in the REI Award are consistent with and in the range of those for Level 1 Classifications in the CPS Award. As is the case with the CPS Award, automatic progression is limited to the pay points within the Level 1 Classification and there is no automatic progression from Level 1 to Level 2. The structure agreed by the parties amalgamating Associate Level classifications – Property Sales Associate, Property Management Associate and Strata/Community Title Management Associate – does not remove any of the content of the role definition or indicative tasks, but rather combines these into a single level of the classification structure. The Associate Level classifications in the REI Award are currently paid the same rate of pay across the three areas so there is no wage increase resulting from the amalgamation into a single level.

[14] In our view, there is an indirect benefit from the amalgamation of the Associate classification definitions in the REI Award on the basis that employees at the Associate Level will have an opportunity to obtain skills across the areas of Property Sales, Property Management and Strata/Community Title Management. This will benefit Associate Level employees in terms of career progression and provide flexibility for employers. This flexibility may be more limited at higher levels where employees tend to specialise, but we accept that the skills obtained at the Associate Level underpin those at higher levels regardless of the area in which they are obtained and that the benefits of the potentially broader skills obtained by employees at the Associate Level will impact positively if they advance under the REI Award classification structure.

[15] In relation to the Property Sales Representative classification in the REI Award, as previously discussed, in the July 2017 decision, we concluded that the skills required to be exercised and the indicative tasks required to be performed by a Property Sales Representative are appropriately aligned with the Level 2 employee under the CPS Award. We are similarly satisfied that this is the case in relation to the Property Management and Community/Strata Title Management Representative positions and that the classification definition agreed by the Parties for the Representative level simply amalgamates the existing role definitions and indicative tasks for Representatives across these three areas. For the same reasons that we concluded that the work of Property Sales Representatives is undervalued, we are also satisfied that the same can be said for the work of Property Management and Strata/Community Title Representatives. It is clear that the work being performed by all Representative Level employees under the REI Award is at least equivalent in terms of skills and qualifications to that performed by Level 2 employees under the CPS Award. Accordingly, classifications for Property Management and Strata/Community Title Representatives should be at the same level as the Property Sales Representative classification under the REI Award.

[16] We are also satisfied that the Representative level in the REI Award should be the benchmark for relativities for other classification levels. As is the case with the CPS Award, automatic progression is limited to the pay points within the Level 2 Classification and there is no automatic progression from Level 1 to Level 2. The Representative Level classifications in the REI Award are currently paid the same rate of pay across the three areas so there is no wage increase resulting from the amalgamation into a single level.

[17] The parties have also agreed to combine the current classification definitions for the Supervisory Levels in the REI Award into a single classification definition. The current definitions set out indicative tasks for employees in the respective areas involving supervision and management of work groups; ensuring compliance in relation to obligations imposed under a range of legislation; and developing operational plans. We are satisfied that the Supervisory Level employees under the REI Award are exercising at least the equivalent skills and competencies of employees at Level 3 of the CPS Award and a number of skills that are prescribed for Level 4 of the CPS Award.

[18] The minimum weekly award rate for Level 3 employees under the CPS Award is $854.60 and for Level 4 employees, $897.40. The minimum weekly award rate for Supervisory level employees under the REI Award is $847.40 for a Property Sales Supervisor and $901.40 for Property Management and Strata/Community Title Supervisors. We are satisfied that the minimum weekly award rate for Supervisory classifications under the REI Award should be the same across all three streams and that a rate in the range between levels 3 and 4 in the CPS Award is appropriate on the ground of work value. The parties have agreed to a rate which for Supervisory employees under the REI Award which is in this range and we accept that rate as being commensurate with the skills and qualifications of Supervisory employees under the REI Award.

[19] We are also satisfied that a new ‘In Charge Level’ is appropriate for the REI Award to reflect the additional skills and qualifications required to be exercised by a Licensee in Charge or an Agency Manager who is responsible for the overall supervision of an office rather than that of a team. The qualifications required to be held and the skills required to be exercised by an employee under the REI Award at this level are at least commensurate with Level 4 of the CPS Award.

[20] The relativities between the Representative Level and other levels of the structure agreed by the parties, and which in our view are appropriate based on the skills and qualifications required to be exercised by employees under the REI Award are as follows:

Level 1 – Associate

Year 1 – 90%

Year 2 – 95%

Level 2 – Representative Level – 100%

Level 3 – Supervisory Level – 105%

Level 4 – In Charge Level – 110%

[21] These relativities are broadly consistent with those for classification levels in the CPS Award and employees under the REI Award are required to exercise skills and competence to at least an equivalent level to that for which a similar wage rate and relativity is prescribed by the CPS Award. The relativities for classifications under the CPS Award based on current wage rates are as follows:

Level 1

Year 1 – 91.3%

Year 2 – 95.7%

Year 3 – 98.8%

Level 2

Year 1 – 100%

Year 2 – 101.85%

Level 3 – 105.65%

Level 4 – 110.91%

[22] The consequential wage rates as a result of the relativities agreed by the parties for the new classification structure in the REI Award are as follows:

[23] We note that as a result of the new relativities, the new minimum wage rate for the Property Management Supervisor and the Strata/Community Title Management Supervisor will be $11.40 per week less than the new rate for the Level 3 Supervisory classification. This issue has been addressed by the inclusion of a new general provision clause 14.2 that no employee will suffer a reduction in wages as a result of the new introduction of the new classification structure and wage rates.

[24] Section 156(3) of the FW Act provides that in a 4 yearly review of modern awards, the Commission may make a determination varying modern award minimum wages only if the Commission is satisfied that the variation of modern award minimum wages is justified by work value reasons. Work value reasons are defined in s. 156(4) of the FW Act as reasons related to any of the following:

(a) the nature of the work;

(b) the level of skill or responsibility involved in doing the work;

(c) the conditions under which the work is done.

[25] In the present case, we are satisfied that the nature of the work performed by employees under the REI Award and the level of skill and responsibility involved in doing that work justifies the increases agreed by the parties which we provisionally endorse. We are also satisfied that that the variations to minimum wages are necessary to achieve the modern awards objective in s 134(1), taking into account the consideration specified in paragraphs (a)-(h), and the minimum wages objective in s 284(1), taking into account the considerations in paragraphs (a)-(e). Our provisional view is that the REI Award should be amended to reflect the agreed classification structure, wage rates and relativities. We note that the parties involved in the conference before the Commission have agreed to an operative date of 2 April 2018 for these amendments.

[26] We previously expressed a view that the increase we had provisionally approved for Property Sales Representatives should operate from 1 January 2018 but that increases to other classifications which may result from new relativities based on the Property Sales Representative classification should be phased in and would not necessarily operate from the same date as the increase for the Property Sales Representative classification. At the conference conducted by the Commission on Friday 3 November 2017, the parties agreed to a new classification structure, relativities and wage rates for all other classifications. The parties also agreed that the classification structure and wage rates should operate in full from 2 April 2018.

[27] We accept that it is appropriate that the classification structure and wage increases operate from 2 April 2018. In our view this operative date gives employers sufficient time to prepare for what we acknowledge are not insignificant wage increases. We are also of the view that the wages of employees in the Real Estate Industry have been undervalued since the REI Award was made and under previous instruments that applied to them and have waited long enough for appropriate recognition of the skills, qualifications and experience that their jobs require. The operative date of 2 April 2018 strikes an appropriate balance between the interests of employers and employees and we indicate a provisional view that it should be granted.

Other Amendments

[28] In the July 2017 decision, we identified other provisions of the REI Award where amendment was required including amendment to some provisions which had been agreed between the parties during earlier proceedings in relation to the REI Award. Draft provisions dealing with these matters were included in the third Exposure Draft of the REI Award issued on 11 July 2017.

[29] The parties have discussed those provisions further and have agreed to their inclusion in the REI Award subject to some minor modifications. Those provisions are as follows:

•  Agreement to enter into commission-only arrangements;

•  Objective of commission-only employment and annualised minimum wage;

•  Minimum requirements for entering into commission only employment;

•  Minimum commission only rate and calculation of such rate;

•  Minimum income threshold for entering into commission-only employment;

•  Motor cycle and mobile telephone allowances;

•  Non-application of casual and part-time employment provisions to employees on commission-only arrangements;

•  When commission only arrangements must cease and when such arrangements may resume after they have ceased;

•  Written agreements for payments by wages with commission, bonus or incentive payments or commission-only arrangements and amendments to those agreements;

•  Entitlements to commission, incentive payments or bonuses after employment ends;

•  Disputes in relation to commission, bonuses or incentives; and

•  Clarification that 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 and that payment for such leave entitlements may be treated as a debit on the employee’s account to the extent that the relevant commission-only agreement provides for a percentage in excess of the minimum percentage in clause 16.5 of the REI Award (varied as earlier proposed in this decision).

[30] We do not agree with the submission of RRESSA that the exclusion from annual leave loading for commission-only employees in clause 25.4(b)(ii) of the REI Award should be removed.  This submission was opposed by the employer parties.  Commission only employees have not previously been entitled to leave loading.  The new provision we propose will confirm their entitlement to be paid at the base rate for annual leave under the NES at the time the leave is taken.  The clause will allow for the payment for leave to be accumulated in advance by being treated as a debit on a commission-only employee’s account to the extent that the commission-only agreement provides for an additional percentage above the amount of 31.25% of the employer’s gross commission. 

[31] Previously agreed amendments to insert an allowance for employees using their own motor cycles and in relation to employees using their own mobile telephones will be inserted into the REI Award from 2 April 2018. Consequential amendments will also take effect from that date involving the deletion of transitional provisions which no longer have application relating to: motor vehicle allowance; mobile telephone allowances; and written agreements.

Conclusion

[32] A draft determination to give effect to these amendments will be published. A fourth exposure draft will also be published. Any further submissions in relation to the terms of the fourth exposure draft or the draft determination to give effect to the amendments set out in the July 2017 decision and this decision are to be emailed to [email protected] by 4.00 pm on Wednesday, 28 February 2018.

[33] Subject to any submissions which may be received from parties, the Full Bench will amend the REI Award to give effect to the matters set out in the draft determination and those in the fourth exposure draft of the REI Award, with effect from Monday 2 April 2018.

VICE PRESIDENT

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

1 4 yearly review of modern awards – Real Estate Industry Award 2010 [2017] FWCFB 3543

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