REAL ESTATE INDUSTRY (STATE) AWARD
INDUSTRIAL RELATIONS
COMMISSION OF NEW SOUTH WALES
Review
of Award pursuant to Section 19 of the Industrial
Relations Act 1996.
(No. IRC 1231
of 2001)
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Before Commissioner Patterson
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18 June 2001
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REVIEWED AWARD
PART A
COMMON PROVISIONS
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CLAUSE NUMBER
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SUBJECT MATTER
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1.
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SCOPE OF PART A
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2.
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ANTI-DISCRIMINATION
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3.
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DEFINITIONS
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4.
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TERMS OF EMPLOYMENT
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5.
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STRUCTURAL EFFICIENCY
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6.
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DUTIES OF EMPLOYEES
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7.
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EXPENSES
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8.
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MEAL BREAK
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9.
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MOBILE TELEPHONES
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10.
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UNIFORMS
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11.
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EMPLOYMENT AGREEMENTS
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12.
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SALESPERSONS COMMISSION
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13.
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ANNUAL HOLIDAYS
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14.
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LONG SERVICE LEAVE
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15.
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SUPERANNUATION
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16.
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SICK LEAVE
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16A.
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PERSONAL/CARERS LEAVE
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17.
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REDUNDANCY
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18.
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GRIEVANCE PROCEDURE
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19.
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AREA, INCIDENCE AND DURATION
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PART B
SALESPERSONS (WHOLLY OR PARTLY SALARIED), PROPERTY MANAGERS, PROPERTY
OFFICERS AND LICENSEES‑IN‑CHARGE
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CLAUSE NUMBER
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SUBJECT MATTER
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20.
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SCOPE OF PART B
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21.
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REMUNERATION ‑ GENERAL
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22.
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REMUNERATION ‑ SALESPERSONS
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23.
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REMUNERATION ‑ PROPERTY MANAGERS
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24.
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REMUNERATION ‑ PROPERTY OFFICERS
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25.
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REMUNERATION ‑ LICENSEES‑IN‑CHARGE
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26.
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REMUNERATION-PROBATIONARY SALESPERSONS
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27.
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PART‑TIME EMPLOYEES
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28.
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CASUAL EMPLOYEES
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29.
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ROSTERED DAYS OFF ‑ SALESPERSONS AND LICENSEES-IN-
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CHARGE
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30.
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ROSTERED DAYS OFF ‑ PROPERTY MANAGERS AND PROPERTY
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OFFICERS
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31.
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LOCOMOTION
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32.
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TELEPHONE
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33.
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ANNUAL LEAVE LOADING
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34.
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PUBLIC HOLIDAYS
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35.
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JURY SERVICE
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36.
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COMPASSIONATE LEAVE
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37.
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EXEMPTIONS
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PART C
COMMISSION ONLY SALESPERSONS
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CLAUSE NUMBER
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SUBJECT MATTER
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38.
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SCOPE OF PART C
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39.
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EXCLUSION
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40.
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ALTERNATIVE FORM OF EMPLOYMENT
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41.
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EMPLOYEE
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42.
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APPLICATION OF CERTAIN BENEFITS
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43.
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REMUNERATION
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44.
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ROSTERED DAYS OFF
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PART D
SCHEDULES
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1.
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EMPLOYMENT AGREEMENT
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2.
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CERTIFICATE OF EXEMPTION
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3.
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EMPLOYEE’S TRAVEL SCHEDULE
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PART E
RATES OF PAY
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TABLE 1
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RATES OF PAY
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TABLE 2
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OTHER RATES AND ALLOWANCES
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PART A
COMMON PROVISIONS
1. SCOPE OF PART A
This PART shall apply generally in this award. Where a provision in this Part is in
conflict with a provision of Parts B or C the provision in Parts B or C shall
prevail.
2. ANTI-DISCRIMINATION
(1) It is the intention of the parties bound
by this award to seek to achieve the object in section 3(f) of the Industrial Relations Act 1996 to prevent
and eliminate discrimination in the workplace. This includes discrimination on
the grounds of race, sex, marital status, disability, homosexuality,
transgender identity, age and responsibilities as a carer.
(2) It follows that in fulfilling their
obligations under the dispute resolution procedure prescribed by this award the
parties have obligations to take all reasonable steps to ensure that the
operation of the provisions of this award are not directly or indirectly
discriminatory in their effects. It will be consistent with the fulfilment of
these obligations for the parties to make application to vary any provision of
the award, which, by its terms or operation, has a direct or indirect
discriminatory effect.
(3) Under the Anti-Discrimination Act 1977, it is unlawful to victimise an
employee because the employee has made or may make or has been involved in a
complaint of unlawful discrimination or harassment.
(4) Nothing in
this clause is to be taken to affect:
(a) any conduct or act which is specifically exempted from anti-
discrimination legislation;
(b) offering or providing junior rates of pay to persons under 21
years of age;
(c) any act or practice of a body
established to propagate religion which is exempted under section 56(d) of the Anti-Discrimination Act 1977;
(d) a party to this award from pursuing
matters of unlawful discrimination in any State or Federal jurisdiction.
(5) This clause does not create legal rights
or obligations in addition to those imposed upon the parties by legislation
referred to in this clause.
NOTES:
(a) Employers
and employees may also be subject to Commonwealth anti- discrimination
legislation.
(b) Section
56(d) of the Anti-Discrimination Act
1977 provides:
"Nothing in this Act affects
any other act or practice of a body established to propagate religion that
conforms to the doctrines of that religion or is necessary to avoid injury to
the religious susceptibilities of the adherents of that religion".
3. DEFINITIONS
Unless the context of the award otherwise requires:
(a) "Builder" shall mean any
person or company licensed by the Building Services Corporation of New South
Wales.
(b) "Casual
employee" shall mean an employee engaged and paid as such.
(c) "Employee" shall include all
salespersons however employed, property managers, property officers, licensees‑in‑charge
and apprentices.
(d) "Employer" shall mean real
estate agent, stock and station agent, business agent, strata managing agent,
builder, property developer, auctioneer or any other person employing
salespersons.
(e) "Licensee‑in‑Charge"
shall mean an employee who is a holder of a licence under the Property Stock and Business Agents Act
1941 (NSW) who is employed as the person in charge of a place of business as
required by Sections 20 and 21 of the said Act.
(f) "Part‑time Employee"
shall mean a salesperson, property manager or property officer who, in the case
of a part‑time salesperson regularly works fewer than five days a week,
or, in the case of a part‑time property manager or property officer, is
engaged for a minimum of 3 hours for each start.
(g) "Probationary Salesperson"
shall mean any person employed as a salesperson and who has been so employed
for a period of not more than six months as a salesperson in the real estate
industry.
(h) "Property
Management Functions" shall include:
(i) selection of tenants
collection
of rents
payment
of outgoings
accounting
to the owner
care and
maintenance of the structure and its equipment
preparation
of management agency agreement
negotiation
of lease terms and conditions
preparation
of Residential Tenancy Agreement
liaison
with owners of property
taking
inventory prior to occupancy
inspecting
property prior to termination of tenancy
inspecting
property prior to occupancy
preparation of Rental Bond Board
documents
checking and collection of arrears
of rent
preparation and execution of
termination notice
preparation and registration of
lease agreement
reporting regularly to owners on
conditions of property
reporting to owners on market
conditions e.g. rental levels
appraising properties for rental
liaison with tradesmen
arranging and checking repairs
checking invoices
arranging connection of power
inspecting properties to determine
repairs needed
preparing budget for Owners
Corporation
attending meetings of the
Executive Committee of the Owners Corporation or the Owners Corporation
collecting contributions of maintenance
and sinking funds for the Owners Corporation
preparation of an application for
an order from the Residential Tenancies Tribunal
appearing before the Residential
Tenancy Tribunal
(ii) the management for and on behalf of any
employer of any commercial property including but not limited to, multi- storey
buildings, shopping centres, shopping arcades, shops, office space, car parking
space, hotels, motels, showrooms, car yards, service stations and boarding
houses, irrespective of the form of title, whether built or to be built and or
vacant land used for commercial purposes;
(iii) the management for and on behalf of any
employer of any industrial property including but not limited to, factories,
warehouses and storage facilities, irrespective of the form of title, whether
built or to be built and or vacant land used for industrial purposes;
(iv) the management for and on behalf of any
employer of any residential property including, but not limited to, free
standing houses, semi- detached houses, town houses, villas, home units and
residential flats or flatettes, irrespective of the form of title, and
time- sharing of property or portion of
property irrespective of whether built or to be built;
(v) the management for and on behalf of any
employer of any company title home unit, strata title home unit, strata title
town house, strata title villa, strata title commercial building, strata title
industrial building, company title unit building and strata title home unit
building;
(vi) the management for and on behalf of any
employer of any rural property including, but not limited to dairy farms, sheep
and wheat stations, mixed produce farms, fruit or nut plantations, market
gardens and mini- farms, with or without
improvements whether built or to be built.
(i) "Property Manager" shall mean
an employee appointed by the employer to manage the property management
functions of any agency.
(j) "Property Officer" shall mean
an employee who assists a property manager in the property management functions
of an agency.
(k) "Salesperson"
shall mean any person employed as a salesperson
(i) in connection with the sale or leasing of land either
improved or unimproved; or
(ii) in connection with the sale or leasing of
buildings whether built or to be built including home units (irrespective of
the form of title); or
(iii) in connection with the sale or leasing of
homes including project or volume homes and packages of land and home whether
built or to be built; or
(iv) in connection with the arranging for or
on behalf of any employer for the selling of and for the erection of buildings
for and on behalf of any other person or company; or
(v) in connection with the sale leasing or brokerage of
businesses of any kind; or
(vi) in connection with the arranging for and
on behalf of any employer, the selling or assigning of time sharing of property
or portion of property for and on behalf of any other person or company; or
(vii) in connection with the arranging for and on
behalf of any employer, the selling or assigning of retirement villas or units,
or portion of property for related purposes, for and on behalf of any other
person or company; or
(viii) by an auctioneer or stock and station agent; or
(ix) Salesperson shall not include any person
employed for the major or substantial part of his or her time in the sale of
livestock; any person employed for the major or substantial part of his or her
time as a property manager, property officer and/or in the collection of rents;
any person employed for the major or substantial part of his or her time in any
clerical capacity; licensee‑in‑charge.
(l) "Salesperson’s or employee’s
commission" shall be any payment made to an employee in accordance with
his or her contract of employment and evidenced in an Employment Agreement.
(m) "Settled
Sale" shall mean a sale in respect of which an employer has received
commission.
(n) "Time Sharing" of property
shall mean an arrangement by which one party sells or assigns to another party
the right to occupy a property or portion of a property for a fixed or floating
period each year and to use and have the benefit of certain facilities on such
property or portion thereof.
(o) "Weekly
Employee" shall mean an employee other than a casual employee.
(p) "Probationer Apprentice" shall
mean a person who has attained the age of 18 years, employed in the State of
New South Wales, excluding the County of Yancowinna, with a view to
ascertaining his suitability for engagement as an indentured apprentice Real
Estate Operative and for whom application has been made.
(q) "Indentured Apprentice" shall
mean an apprentice Real Estate Operative in the real estate industry in the
State of New South Wales, excluding the County of Yancowinna, who has an educational
standard at least equal to the school certificate, has attained the age of 18
years and is serving a period of training under an indenture for the purpose of
rendering him/her fit to be a qualified worker in the trade.
(r) The terms "apprentice and/or
apprentices" used in the context of this award shall include indentured
apprentices and probationer apprentice.
4. TERMS OF EMPLOYMENT
(a) Except in
respect of casual employees, employment shall be on a full-time or part-time
basis.
(b) An employee must give one week’s notice
in writing to the employer of the intention to terminate his/her services. In the event that notice is not so given the
employee shall forfeit one week’s salary.
(c) The employer may terminate the
employment of the employee by giving the employee the notice (or payment of
salary in lieu of notice) referred to in the following table:
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Employee's Period
of Continuous Service
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Minimum Period of
Notice
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Not more than 1 year
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1 week
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more than 1 year but less than 3 years
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2 weeks
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more than 3 years but less than 5 years
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3 weeks
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more than 5 years
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4 weeks
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If the employee is 45 years of age
or older and has been employed by the employer for at least 2 years, the employee
shall be entitled to an additional one week’s notice (or payment of salary in
lieu of notice).
(d) Notwithstanding the provisions of sub
clause (c) herein the employer may dismiss an employee for misconduct of a kind
described in Clause 7.4 of the Employment Agreement, Schedule 1 to this award,
in which case the employee shall be paid up to the time of dismissal only.
(e) All salary, locomotion allowance,
telephone allowance, expenses, payment under the Annual Holidays Act 1944 (NSW), payment of annual holidays loading
and payment under the Long Service Leave
Act 1955 (NSW), which are due and payable shall be paid to the employee
within three working days of termination of employment.
(f) An employee shall apply himself/herself
to the work directed to be done by the employer and the employee shall
personally attend at such place and at such times as the employer may
reasonably require. If the employee is
unable to attend work and it is possible for him/her to notify the employer
he/she shall forthwith do so. The employee shall give such evidence for his/her
inability to attend as the employer may reasonably require.
(g) All listings, documents and records used
in the employer's business shall remain the property of the employer.
(h) Except in the proper course of his/her
duties, an employee shall not, during the term of employment or after its
termination, disclose or use any confidential information of or about the
employer, its clients or suppliers to any other person, business or company
except for the purposes of obtaining professional advice from a legal
representative or the Real Estate Association of NSW or to comply with the
requirements of law.
(i) For the purpose of this clause
"confidential information" shall include, but is not limited to, any
of the following information of the employer whether described or contained in
a written, tangible, electronic or oral form -
(ii) past or current customer or client lists; or
(iii) lists of properties managed by the employer on behalf of
owners; or
(iv) inventions, designs, methodologies,
structures, discoveries, ideas, concepts, charge out rates, lists of suppliers.
(i) For the
purposes of this clause, "salary" shall mean
(i) for employees employed under PART B - the salary and
allowances paid to such an employee.
(ii) for salespersons employed under PART C -
the average salesperson's commission earned by the employee calculated by
dividing total commission received to the end of the last completed week of
employment by the number of complete weeks for which the salesperson has been
employed. However, if the employment has exceeded one year the average shall be
calculated over the last year of employment preceding the last full week of
employment.
5. STRUCTURAL EFFICIENCY
Enterprises may establish a consultative mechanism and
procedures appropriate to the size structure and needs for consultation and
negotiation on matters affecting efficiency and productivity.
6. DUTIES OF EMPLOYEES
An employer may direct an employee to carry out such duties
as are within the limits of the employee's skills, competence and training.
7. EXPENSES
An employee who incurs expenses at the request of the
employer shall be reimbursed by the employer.
Where reasonably practicable expenses shall be paid in advance.
8. MEAL BREAK
No employee shall be required to work more than five hours
without a meal break of not less than 20 minutes duration.
9. MOBILE TELEPHONES
(a) If an employer directs an employee in
writing to supply and use a mobile telephone the employer shall meet the cost
of the supply and use of the telephone.
(b) The basis on which the cost shall be met
shall be agreed between the employer and the employee and be evidenced in the
Employment Agreement prepared and registered in accordance with Clause 11 of
this award.
(c) When the
employer provides the telephone it shall remain the property of the employer.
10. UNIFORMS
(a) If an
employer requires an employee to wear a uniform the employer shall provide it.
(b) The basis on which a uniform is
provided, including what constitutes the uniform, shall be agreed between the
employer and employee.
(c) The uniform
shall remain the property of the employer.
11. EMPLOYMENT AGREEMENTS
(a) Where employment of the employee is
regulated by the provisions of this award and employment commenced after the
operative date of this award, the employer shall prepare an Employment
Agreement on behalf of the employee, in the form contained in Schedule 1 of
Part D to this award.
(b) It is a condition of employment that the
employee shall sign the Employment Agreement on or before the day employment
commences.
(c) The employer and the employee shall sign
the Employment Agreement and each shall receive a copy. Within 14 days of the Employment Agreement
being signed, the employer shall send two copies of it to either:
The Real Estate Employers’
Federation of NSW
Level 16, 44 Market Street, SYDNEY
NSW 2000: or
The Auctioneers & Agents Guild
Level 3, 1 James Place, NORTH
SYDNEY NSW 2060,
together with:
(i) The employer’s registration fee as set
out in Item 1 of Table 2 - Other Rates and Allowances of Part E, Monetary Rates
made payable to either: The Real Estate Employers Federation of NSW or The
Auctioneers & Agents Guild, and
(ii) The employee’s registration fee as set
out in Item 1 of Table 2 - Other Rates and Allowances of Part E, Monetary Rates
made payable to the Real Estate Association of NSW.
(d) It is a condition of employment that the
employee shall, if required by the employer, either pay to the employer the
amount as set out in Item 1 of Table 2 - Other Rates and Allowances of Part E,
Monetary Rates being the registration fee payable by the employer on behalf of
the employee to The Real Estate Association of NSW, or sign an authority
authorising the employer to deduct the registration fee as set out in Item 1 of
Table 2 - Other Rates and Allowances of Part E, Monetary Rates from his or her
salary within such period as may be agreed.
(e) Subject to the provisions of this award,
where the employer and the employee agree to the deletion of any of the terms
contained in the Employment Agreement, such terms shall be crossed out and
initialled by both the employer and the employee.
(f) Subject to the provisions of this
award, where the employer and the employee agree to the insertion of additional
terms of employment which are not contained in the Employment Agreement, such
terms will be inserted in Paragraph 11, Other Provisions, of the Employment
Agreement, and initialled by both the employee and the employer.
(g) Any variation in respect of the
Employment Agreement shall not, unless agreed in writing between the employer
and the employee, have the effect of terminating the Employment Agreement prepared
in accordance with this Clause and the creation of a new Employment Agreement,
but shall amount to a variation of the agreement which shall remain in force
and effect varied only to the extent of the change. Within 14 days of such
variation being signed, the employer shall send two copies of it to either The
Real Estate Employers’ Federation of NSW or The Auctioneers & Agents Guild,
provided that the operative date of such variation shall be the date upon which
the variation is signed by the employee.
12. SALESPERSON’S COMMISSION
(a) Where it has been agreed that an
employee is entitled to receive salesperson’s commission in addition to
entitlements under this award the method of calculating the salesperson’s commission
shall be evidenced in an Employment Agreement prepared in accordance with
Clause 11 of this award.
(b) The method of calculating Salesperson’s
commission shall in no case be inconsistent with any of the provisions of this
award.
(c) The employer shall account to the
salesperson in written form on the entitlement to commission as it becomes due
and payable in accordance with the terms of the Employment Agreement.
(d) Where a salesperson or
licensee-in-charge during employment was partly or wholly remunerated by
salesperson’s commission he/she shall after termination of employment, be
entitled to salesperson’s commission only for sales exchanged before
termination and settled thereafter and as specified in the said Employment
Agreement.
13. ANNUAL HOLIDAYS
See Annual Holidays
Act 1944 (NSW).
14. LONG SERVICE LEAVE
See Long Service Leave
Act 1955 (NSW).
15. SUPERANNUATION
See Real Estate Industry (State) Superannuation Award and
relevant Occupational Superannuation legislation.
16. SICK LEAVE
(a) Each employee, other than a casual
employee, who has completed three months continuous service, and who is absent
from work on account of personal injury or illness, shall be entitled to leave
of absence with pay subject to the following conditions and limitations:
(i) he or she shall not be entitled to paid
leave of absence for any period in respect of which he or she is entitled to
receive weekly workers' compensation payments;
(ii) he or she shall, where practicable,
within twenty‑four hours of the commencement of such absence, inform the
employer of his or her inability to attend for duty, and, as far as
practicable, state the nature of the illness or injury and the estimated
duration of the absence;
(iii) he or she shall furnish such evidence as
the employer may reasonably require that he or she was unable, by reason of
such illness or injury, to attend for duty on the day or days for which sick
leave is claimed; and
(iv) subject to subclause (c) of this clause,
he or she shall not be entitled to sick pay for more than five days during his
or her first year of service and eight days during his or her second and
subsequent years of service.
(b) For the
purposes of this clause "pay" shall mean:
(i) for employees employed under PART B -
the salary paid to such an employee and, where the employee receives locomotion
allowance in accordance with Clause 31 of this award, the standing charge
portion of such allowance.
(ii) for salespersons employed under PART C -
the average salesperson's commission earned by him or her calculated by
dividing total commission received to the end of the last completed week of
employment by the number of complete weeks for which the salesperson has been
employed. However, if the employment
has exceeded one year the average shall be calculated over the last year of
employment preceding the last full week of employment.
(c) Sick leave shall accumulate from year to
year so that any balance of the period specified in subclause (a) of this
clause, which has in one year not been allowed to any employee by an employer
as paid sick leave, may be claimed by the employee and subject to the
conditions hereinbefore prescribed shall be allowed by the employer in any
subsequent year without diminution of the sick leave prescribed in respect of
that year, provided that sick leave shall accumulate in accordance with this
subclause only whilst the employee remains in the service of the same
employer. Provided further that an
employer shall not be bound to credit to an employee sick leave, which accrued
more than 10 years before the end of the last completed year of service.
(d) Service prior to the commencement of
this award shall be deemed to be service for the purpose of this clause.
16A. STATE PERSONAL - CARERS LEAVE CASE - AUGUST 1996
(1) Use of Sick
Leave
(a) An employee, other than a casual
employee, with responsibilities in relation to a class of person set out in
subparagraph (ii) of paragraph (c), who needs the employee’s care and support,
shall be entitled to use, in accordance with this subclause, any current or
accrued sick leave entitlement, provided for in Clause 16, Sick Leave, for
absences to provide care and support, for such persons when they are ill. Such
leave may be taken for part of a single day.
(b) The employee shall, if required,
establish either by production of a medical certificate or statutory
declaration, the illness of the person concerned and that the illness is such
as to require care by another person. In normal circumstances, an employee must
not take carer’s leave under this subclause where another person has taken
leave to care for the same person.
(c) The entitlement to use sick leave in accordance with this
subclause is subject to:
(i) the employee being responsible for the care of the person
concerned; and
(ii) the person concerned being:
(a) a spouse of the employee; or
(b) a de facto spouse, who, in relation to a
person, is a person of the opposite sex to the first mentioned person; who
lives with the first mentioned person as the husband or wife of that person on
a bona fide domestic basis although not legally married to that person; or
(c) a child or an adult child (including an
adopted child, a step child, a foster child or an ex nuptial child), parent
(including a foster parent and legal guardian), grandparent, grandchild or
sibling of the employee or spouse or de facto spouse of the employee; or
(d) a same sex partner who lives with the
employee as the de facto partner of that employee on a bona fide domestic
basis; or
(e) a relative of the employee who is a
member of the same household, where for the purposes of this subparagraph:
1. "relative"
means a person related by blood, marriage or affinity;
2. "affinity" means a relationship
that one spouse because of marriage has to blood relatives of the other; and
3. "household"
means a family group living in the same domestic dwelling.
(d) An employee shall, wherever practicable,
give the employer notice prior to the absence of the intention; to take leave,
the name of the person requiring care and that person’s relationship to the
employee, the reasons for taking such leave and the estimated length of
absence. If it is not practicable for the employee to give prior notice of absence,
the employee shall notify the employer by telephone of such absence at the
first opportunity on the day of absence.
(2) Unpaid Leave
for Family Purpose
An employee may elect, with the consent
of the employer, to take unpaid leave for the purpose of providing care and
support to a member of a class of person set out in subparagraph (c)(ii) of
subclause (1) who is ill.
(3) Annual Leave
(a) An employee may elect with the consent
of the employer, subject to the Annual
Holidays Act, 1944, to take annual leave not exceeding five days in single
day periods or part thereof, in any calendar year at a time or times agreed to
by the parties.
(b) Access to annual leave, as prescribed in
paragraph (a) of this subclause, shall be exclusive of any shutdown period
provided for elsewhere under this award.
(4) Time Off in
Lieu of Payment for Overtime
(a) An employee may elect, with the consent
of the employer, to take time off in lieu of payment for overtime at a time or
times agreed with the employer within 12 months of the said election.
(b) Overtime taken as time off during
ordinary time hours shall be taken at the ordinary time rate, that is an hour
for each hour worked.
(c) If, having elected to take time as leave
in accordance with paragraph (a), of this subclause, the leave is not taken for
whatever reason payment for time accrued at overtime rates shall be made at the
expiry of the 12-month period or on termination.
(d) Where no election is made in accordance
with the said paragraph (a), the employee shall be paid overtime rates in
accordance with the award.
(5) Make-up Time
(a) An employee may elect, with the consent
of the employer, to work "make-up time", under which the employee
takes time off during ordinary hours, and works those hours at a time, during
the spread of ordinary hours provided in the award, at the ordinary rate of
pay.
(b) An employee on shift work may elect,
with the consent of the employer, to work "make-up time" (under which
the employee takes time off during ordinary hours and works those hours at a
later time), at the shift work rate, which would have been applicable to the
hours taken off.
(6) Rostered
Days Off
(a) An employee may elect with the consent of the employer, to
take a rostered day off at any time.
(b) An employee may elect, with the consent
of the employer, to take rostered days off in part day amounts.
(c) An employee may elect, with the consent
of the employer, to accrue some or all-rostered days off for the purpose of
creating a bank to be drawn upon at a time mutually agreed between the employer
and employee, or subject to reasonable notice by the employee or the employer.
(d) This subclause is subject to the
employer informing each union which is both a party to the award and which has
members employed at the particular enterprise of its intention to introduce an
enterprise system of rostered days off flexibility, and providing a reasonable
opportunity for the union(s) to participate in negotiations.
17. REDUNDANCY
(1) Application
(a) This clause shall apply in respect of full-time and part-time
employees.
(b) This clause shall only apply to
employers who employ 15 or more employees immediately prior to the termination
of employment of employees.
(c) Notwithstanding anything contained
elsewhere in this clause, this clause shall not apply to employees with less
than one year’s continuous service and the general obligation on employers
shall be no more than to give such employees an indication of the impending
redundancy at the first reasonable opportunity, and to take such steps as may
be reasonable to facilitate the obtaining by the employees of suitable
alternative employment.
(d) Notwithstanding anything contained
elsewhere in this clause, this clause shall not apply where employment is
terminated as a consequence of conduct that justifies instant dismissal,
including malingering, inefficiency or neglect of duty, or in the case of
casual employees, apprentices or employees engaged for a specific period of
time or for a specified task or tasks or where employment is terminated due to
the ordinary and customary turnover of labour.
(2) Introduction
of Change
(a) Employer’s duty to notify
(i) Where an employer has made a definite
decision to introduce changes in production, program, organisation, structure
or technology that are likely to have significant effects on employees, the
employer shall notify the employees who may be affected by the proposed changes
and the union to which they belong.
(ii) "Significant effects" include
termination of employment, major changes in the composition, operation or size
of the employer’s workforce or in the skills required, the elimination or diminution
of job opportunities, promotion opportunities or job tenure, the alteration of
hours of work, the need for retraining or transfer of employees to other work
or locations and the restructuring of jobs.
Provided that where the award
makes provision for alteration of any of the matters referred to herein, an
alteration shall be deemed not to have significant effect.
(b) Employer’s duty to discuss change
(i) The employer shall discuss with the
employees affected and the union to which they belong, inter alia, the
introduction of the changes referred to in paragraph 2(a) above, the effects
the changes are likely to have on employees and measures to avert or mitigate
the adverse effects of such changes on employees, and shall give prompt
consideration to matters raised by the employees and/or the union in relation
to the changes.
(ii) The discussion shall commence as early
as practicable after a definite decision has been made by the employer to make
the changes referred to in paragraph (a) of this sub-clause.
(iii) For the purpose of such discussion, the
employer shall provide to the employees concerned and the union to which they
belong all relevant information about the changes including the nature of the
changes proposed, the expected effects of the changes on employees and any
other matters likely to affect employees provided that any employer shall not
be required to disclose confidential information the disclosure of which would
adversely affect the employer.
3. Redundancy
(a) Discussion before terminations
(i) Where an employer has made a definite
decision that the employer no longer wishes the job the employee has been doing
done by anyone pursuant to sub-paragraph (i) of paragraph (a) of
sub-clause (2) above, and that decision may lead to the termination of
employment, the employer shall hold discussions with the employees directly
affected and with the union to which they belong.
(ii) The discussions shall take place as soon
as is practicable after the employer has made a definite decision which will
invoke the provision of sub-paragraph (i) of this sub-clause and shall
cover, inter alia, any reasons for the proposed terminations, measures to avoid
or minimise the terminations and measures to mitigate any adverse effects of
any termination on the employees concerned.
(iii) For the purposes of the discussion the
employer shall, as soon as practicable, provide to the employees concerned and
the union to which they belong, all relevant information about the proposed
terminations including the reasons for the proposed terminations, the number
and categories of employees likely to be affected, and the number of workers
normally employed and the period over which the terminations are likely to be
carried out. Provided that any employer
shall not be required to disclose confidential information the disclose of
which would adversely affect the employer.
(4) Termination
of Employment
(a) Notice for Changes in Production, Programme, Organisation or
Structure
This sub-clause sets out the notice
provisions to be applied to terminations by the employer for reasons arising
from "production", "programme", "organisation" or
"structure" in accordance with subclause (2)(a)(i) above.
(i) In order to terminate the employment of
an employee the employer shall give to the employee the following notice:
|
Period of continuous service
|
Period of Notice
|
|
Less than 1 year
|
1 week
|
|
1 year and less than 3 years
|
2 weeks
|
|
3 years and less than 5 years
|
3 weeks
|
|
5 years and over
|
4 weeks
|
(ii) In addition to the notice above,
employees over 45 years of age at the time of the giving of the notice
with not less than two years continuous service, shall be entitled to an
additional week’s notice.
(iii) Payment in lieu of the notice above shall
be made if the appropriate notice period is not given. Provided that employment may be terminated
by part of the period of notice specified and part payment in lieu thereof.
(b) Notice for Technological Change
This subclause sets out the notice
provisions to be applied to terminations by the employer for reasons arising
from "technology" in accordance with subclause (2)(a)(i) above:
(i) In order to terminate the employment of
an employee the employer shall give to the employee 3 months notice of termination.
(ii) Payment in lieu of the notice above
shall be made if the appropriate notice period is not given. Provided that
employment may be terminated by part of the period of notice specified and part
payment in lieu thereof.
(iii) The period of notice required by this
subclause to be given shall be deemed to be service with the employer for the
purposes of the Long Service Leave Act
1955 (NSW), the Annual Holidays Act
1944 (NSW) or any Act amending or replacing either of these Acts.
(c) Time off during the notice period
(i) During the period of notice of
termination given by the employer, an employee shall be allowed up to one day’s
time off without loss of pay during each week of notice, to a maximum of five
weeks, for the purposes of seeking other employment.
(ii) If the employee has been allowed paid
leave for more than one day during the notice period for the purposes of
seeking other employment, the employee shall, at the request of the employer,
be required to produce proof of attendance at an interview or the employee
shall not receive payment for the time absent.
(d) Employee leaving during the notice period
If the employment of an employee
is terminated (other than for misconduct) before the notice period expires, the
employee shall be entitled to the same benefits and payments under this clause
had the employee remained with the employer until the expiry of such notice.
Provided that in such circumstances the employee shall not be entitled to
payment in lieu of notice.
(e) Statement of Employment
The employer shall, upon receipt
of a request from an employee whose employment has been terminated, provide to
the employee a written statement specifying the period of the employee’s
employment and the classification of or the type of work performed by the
employee.
(f) Department of Social Security Employment Separation
Certificate
The employer shall, upon receipt
of a request from an employee whose employment has been terminated, provide to
the employee an "Employment Separation Certificate" in the form
required by the Department of Social Security.
(g) Transfer to Lower Paid Duties
Where an employee is transferred
to lower paid duties for reasons set out in paragraph (i) of
subclause (2) above, the employee shall be entitled to the same period of
notice of transfer as the employee would have been entitled to if the
employee’s employment had been terminated, and the employer may at the
employer’s option make payment in lieu thereof of an amount equal to the
difference between the former ordinary time rate of pay and the new ordinary
time rates for the number of weeks of notice still owing.
5. Severance
Pay
(a) Where an employee is to be terminated pursuant to
subclause (4) above, subject to further order of the Industrial Relations
Commission, the employer shall pay the following severance pay in respect of a
continuous period of service:
(i) If an employee is under 45 years of
age, the employer shall pay in accordance with the following scale:
|
Years of Service
|
Entitlement
|
|
Less than 1 year
|
Nil
|
|
1 year and less than 2 years
|
4 weeks pay
|
|
2 years and less than 3 years
|
7 weeks pay
|
|
3 years and less than 4 years
|
10 weeks pay
|
|
4 years and less than 5 years
|
12 weeks pay
|
|
5 years and less than 6 years
|
14 weeks pay
|
|
6 years and over
|
16 weeks pay
|
(ii) Where an employee is 45 years old or
over, the entitlement shall be in accordance with the following scale:
|
Years of Service
|
Entitlement
|
|
Less than 1 year
|
Nil
|
|
1 year and less than 2 years
|
5 weeks pay
|
|
2 years and less than 3 years
|
8.75 weeks pay
|
|
3 years and less than 4 years
|
12.5 weeks pay
|
|
4 years and less than 5 years
|
15 weeks pay
|
|
5 years and less than 6 years
|
17.5 weeks pay
|
|
6 years and over
|
20 weeks pay
|
(iii) "Weeks pay" means the all
purpose rate of pay for the employee concerned at the date of termination, and
shall include, in addition to the ordinary rate of pay, over award payments,
shift penalties and allowances provided for in the relevant award.
(b) Incapacity to pay
Subject to an application by the
employer and further order of the Industrial Relations Commission, an employer
may pay a lesser amount (or no amount) of severance pay than that contained in paragraph
(a) above.
The Industrial Relations
Commission shall have regard to such financial
and other resources of the employer concerned as the Industrial Relations
Commission thinks relevant, and the probable effect paying the amount of
severance pay in subclause 5(a)(i) or (ii) above will have on the employer.
(c) Alternative Employment
Subject to an application by the
employer and further order of the Industrial Relations Commission, an employer
may pay a lesser amount (or no amount) of severance pay than that contained in
paragraph (a) above if the employer obtains acceptable alternative
employment for an employee.
18. GRIEVANCE PROCEDURE
(a) Where an employer and employee are in
dispute in regard to matters contained in this award, the following procedure
shall govern the settlement of such dispute or claims and shall be open to an
employer or employee.
(b) Upon a dispute arising the employer or
the employee shall raise that matter with the other party or his/her nominated
representative as soon as practicable, and the party with whom the dispute has
been raised shall fully investigate the matter and shall reply to the other
party within two working days of such dispute being raised.
(c) In the event of the employee not being
satisfied with the employer's reply the employee may advise The Real Estate
Association of New South Wales who may raise the matter with the employer.
(d) If the matter remains unresolved the
parties shall convene a conference between The Real Estate Association and the
Industrial Union of Employers of which the employer is a member who shall
attempt to resolve the dispute.
(e) A matter, which is not resolved in
conference, will be notified to the Industrial Relations Commission of NSW.
(f) The parties shall at all times confer in good faith and
without undue delay.
(g) While the above procedure is being followed work shall
continue in accordance with this award.
(h) No party shall be prejudiced as to the
final settlement by the continuance of work in accordance with this award.
(i) In the event of a party failing to
observe these procedures, the other party may take such steps as are open to it
to resolve the matter or proceed to the next step or steps under this
procedure.
19. AREA, INCIDENCE AND
DURATION
(a) This award rescinds and replaces the
Real Estate Industry (State) Award 1999 published 28 January 2000 (313 I.G.
150) and all variations thereto but no right or entitlement accrued under that
award shall be affected by the coming into operation of this award.
The changes made to the award
pursuant to the Award Review pursuant to section 19 (6) of the Industrial Relations Act 1996 and
Principle 26 of the Principles for Review of Award made by the Industrial
Relations Commission of the New South Wales on 18 December 1998 (308 IG 307)
take effect on and from 18 June 2001.
(b) This award shall apply to all employees
defined herein in the State of New South Wales excluding the County of
Yancowinna.
(c) The award published 28 January 2000 took
effect from the first pay period to commence on or after 1 January 1999 and
shall remain in force for a period of three years with leave reserved for the
Real Estate Association of NSW to re-open the award after a period of 18 months
to seek a variation in rates of pay.
(d) Notwithstanding any other provisions
this award shall not apply to employees whose service ceased, for any reason,
prior to the date on which this award was made.
PART B
SALESPERSONS (WHOLLY OR PARTLY SALARIED), PROPERTY MANAGERS, PROPERTY
OFFICERS AND LICENSEES-IN-CHARGE
20. SCOPE OF PART B
This PART shall apply only to salespersons who are paid
wholly or in part by salary, to property managers, property officers, and
licensees-in-charge.
Note:- This PART does not apply to employees under PART C of
this award.
21. REMUNERATION - GENERAL
(a) No employee
shall be remunerated solely by any form of commission.
(b) In no case
shall the salary be paid less frequently than monthly.
(c) The rates of pay as set out in Table 1- Rates
of Pay of Part E, Monetary Rates, include the First, Second and Third
Arbitrated Safety Net Adjustments payable under the State Wage Case - December
1994 decision. The First, Second and Third Arbitrated Safety Net Adjustments
may be offset to the extent of any wage increase received at the enterprise
level since 29 May 1991. Increases made under previous State Wage Case
principles or under the current principles, excepting those resulting at the
enterprise level, are not to be used to offset arbitrated safety net
adjustments.
(d) The rates of pay in this award include
the adjustments payable under the State Wage Case of August 1997 and June 1998.
These adjustments may be offset against:
(i) any equivalent overaward payments, and/or
(ii) award wage increases since 29 May 1991
other than safety net, State Wage Case, and minimum rates adjustments.
22. REMUNERATION - SALESPERSON
The minimum salary of a salesperson employed as a full-time
employee shall be as set out in Table 1, Rates of Pay, of Part E, Monetary
Rates.
23. REMUNERATION - PROPERTY
MANAGER
The minimum salary of a property manager employed as a
full-time employee shall be as set out in Table 1, Rates of Pay, of Part E,
Monetary Rates.
24. REMUNERATION - PROPERTY
OFFICER
(a) (i) The
minimum salary of a property officer employed as a full-time employee shall be
as set out in Table 1, Rates of Pay, of Part E, Monetary Rates, subject to the
following;
At 20 years of age, 80% of the
rate for a GRADE 2 property officer; or
At 19 years of age, 70% of the
rate for a GRADE 2 property officer; or
At 18 years of age, or less 60% of
the rate for a GRADE 2 property officer
(ii) Provided
that once the employee attains 21 years of age and he/she has completed a
minimum of one year’s employment as a Property Officer, he/she shall be
classified as a Grade 2 Property Officer.
(b) A Grade 1
Property Officer is a property officer with a minimum of three years' full-time
adult employment in property management who works under limited supervision. He or she may supervise and train other
staff.
(c) A Grade 2
Property Officer is a property officer with a minimum of one year's full-time
adult employment in property management who works under general supervision.
(d) A Grade 3
Property Officer is a property officer with less than one year's full-time
adult employment in property management who works under direct supervision.
(e) Direct
Supervision shall mean that a person:
(i) receives
detailed instructions on the work to be performed;
(ii) performs
tasks which are part of an overall work routine; and
(iii) is subject
to regular personal progress checks on the work being performed.
(f) General
Supervision shall mean that a person:
(i) receives
instructions on what is required on unusual or difficult features of the work
and on the method of approach when new procedures are involved;
(ii) is normally
subject to progress checks which are usually confined to unusual or difficult
aspects of the task; and
(iii) has the
knowledge and experience required to perform the duties usually without
specific instruction but has assignments reviewed on completion.
(g) Limited
Supervision shall mean that a person:
(i) may be
subject to progress checks which will be principally confined to establishing that
satisfactory progress is being made; and
(ii) may have
his/her assignments reviewed on completion.
25. REMUNERATION -LICENSEE-IN-CHARGE
(a) The minimum
salary of a licensee-in-charge shall be as set out in Table 1, Rates of Pay, of
Part E, Monetary Rates.
26. REMUNERATION - PROBATIONARY SALESPERSONS
(a) The
proportion of probationary salespersons to salespersons employed as full-time
employees shall not exceed, in the case of any individual employer or place of
business, one probationary salesperson to two salespersons employed as
full-time employees or part thereof, provided that where an employer had not
previously employed salespersons he or she may as the first employee employ a
probationary salesperson but employment of further probationary salespersons
shall thereafter be in the proportion stated in this clause.
(b) The minimum
salary of a probationary salesperson employed as a full-time employee shall be
80 per cent of the salary prescribed in Table 1, Rates of Pay, of Part E,
Monetary Rates for salespersons.
(c) A
probationary salesperson shall not be employed as such by an employer or
employers for a period of more than six months in the real estate industry.
(d) Except where
the context of this award otherwise requires, all provisions of this award
shall apply to probationary salespersons.
27. PART-TIME EMPLOYEES
(a) A part-time
employee shall be paid:
(i) in the case
of a part-time salesperson - for each day of work, one-fifth of the salary
prescribed in Table 1, Rates of Pay of Part E, Monetary Rates for Salespersons,
or
(ii) in the case
of a part-time Property Manager or Property Officer - for each hour of work,
one-thirty-eighth of the salary prescribed for the employee's classification in
Table 1, Rates of Pay of Part E,
Monetary Rates with a minimum engagement of 3 hours for each start.
(b) Where a
part-time employee is entitled to be paid a locomotion allowance, his or her
entitlement shall be calculated on the basis of one-fifth for each day worked.
(c) Except where
the context of this award otherwise requires, the provisions of this award
shall apply to part-time employees on the basis of one-fifth entitlement for
each day worked.
28. CASUAL EMPLOYEES
A casual employee shall be paid the following:
(a) In the case of
a casual salesperson - 1/5 of the full-time rate provided in Table 1, Rates of
Pay of Part E, Monetary Rates for a SALESPERSON - plus 20% for each day worked.
(b) In the case
of a casual property manager or property officer - 1/38th of the full-time rate
provided in Table 1, Rates of Pay of Part E, Monetary Rates for a PROPERTY
MANAGER or PROPERTY OFFICER plus 20% for each hour worked. Provided that the
minimum engagement for a casual Property Manager or Property Officer shall be 3
hours.
(c) Where a casual
employee is entitled to be paid a locomotion allowance his or her entitlement
shall be calculated on the basis of one-fifth for each day worked.
(d) The
remuneration prescribed for casual employees in subclauses (1) and (2) herein
includes any payment due pursuant to the Annual Holidays Act 1944 (NSW).
29. ROSTERED DAYS OFF - SALESPERSONS &
LICENSEES-IN-CHARGE
(a) Subject to
subclauses (b) and (c), a salesperson, other than a casual salesperson, and a
licensee-in-charge, shall be allowed a minimum of two days rostered free of
duty in each week. Such rostered days off shall be given and taken in one
consecutive period or two periods each of one day.
(b) However, a
salesperson or licensee-in-charge and his or her employer may agree in writing
that days off be deferred and taken later.
(c) If having
elected to take time as leave in accordance with paragraph (b) of this clause,
the leave is not taken for whatever reason, payment for time accrued at the
rate prescribed in sub-clause (e) below, shall be made at the end of the 12
month period or on termination.
(d) An employer
shall maintain a roster, which shows duty days and days free of duty.
(e) A
salesperson or licensee-in-charge who is specifically directed to work on any
rostered day off, shall be paid for such work at the rate of two days pay for
each day worked. Where a salesperson or licensee-in-charge works on a rostered
day off at his or her own initiative (i.e. without any specific direction from
the employer to do so) he or she shall not be entitled to payment in accordance
with this clause.
30. ROSTERED DAYS OFF - PROPERTY MANAGER AND
PROPERTY OFFICER
(a) Subject to
subclause (d), the employer shall allow a property manager or property officer,
other than a casual, either one and a half or two days rostered free of duty
each week.
(b) When two
rostered days off are granted in any week they shall be given and taken either
in one consecutive period, in two periods each of one day, or, when the property
manager or property officer works on a Saturday morning, three periods
comprising one day and two half days.
(c) When one and
a half rostered days are granted in any week:
(i) they shall
be given and taken either in one consecutive period, or in two periods of one
day and one half day, and
(ii) the
property manager or property officer shall be paid in respect of the additional
half-day's work an additional 1/10th of his/her salary.
(d) Notwithstanding
any other provision in this clause, a property manager or property officer and
employer may agree that half-days off be deferred so that two half days off may
be taken as a whole day each two weeks.
(e) An employer
shall maintain a roster, which shows duty days (or half days), and days (or
half days) free of duty.
(f) A property
manager or property officer who is directed to work on any rostered day or half
day off shall be paid additional salary at the rate of one day's pay for each
half day worked.
(g) For the
purposes of this clause a half-day means a period of time ending at or before 1
p.m. or starting after 1 p.m.
31. LOCOMOTION
A. WEEKLY USE
(a) Where an
employer provides a vehicle for the use by an employee in the course of the
employee performing his or her duties under this award, the expenses arising
out of the provision, maintenance and lawful operation of such vehicle, shall
be met by the employer.
(b) (i) Where an employee is required by the
employer to make his or her own vehicle available for use
in performing his or her duties under this award, the
employee shall be paid a locomotion allowance as prescribed in either
sub-clause (ii) or (iii) herein.
(ii) Employees
whose vehicle is up to and including 5 years of age shall be paid a standing
charge allowance plus the amount per kilometre for the distance travelled by
his/her vehicle in performing his/her duties under this award, as set out in
Item 2 of Table 2 - Other Rates and Allowances of Part E - Monetary Rates,
calculated by reference to the engine size of the vehicle. Provided that where
the employer and expressly agree, a lump sum payment as set out in Item 2 of
Table 2 - Other Rates and Allowances of Part E- Monetary Rates, calculated by
reference to the engine size of the vehicle, may be applied in place of the
standing charge and per kilometre rate.
(iii) Employees
whose vehicle is 6 years of age or older shall be paid a standing charge
allowance plus the amount per kilometre for the distance travelled by his/her
vehicle in performing his/her duties under this award, as set out in Item 3 of
Table 2 - Other Rates and Allowances of Part E - Monetary Rates, calculated by
reference to the engine size of the vehicle. Provided that where the employer
and employee expressly agree, a lump sum payment as set out in Item 3 of Table
2 - Other Rates and Allowances of Part E - Monetary Rates, calculated by
reference to the engine size of the vehicle, may be applied in place of the
standing charge and per kilometre rate.
(iv) For the purpose
of sub-clauses (b)(ii) and (iii), the age of the vehicle shall be determined by
reference to the date stamp on the compliance plate of the vehicle.
(c) For the
purpose of sub-clauses (b)(ii) and (iii), distance travelled to and from the
place where the vehicle is customarily garaged shall be regarded as travel for
the purpose of performing duties under this award.
(d) Where an
employee is entitled to a locomotion allowance under either sub-clause (b)(ii)
or (iii) of this clause, the standing charge allowance only shall be paid to
the employee during periods of annual leave and long service leave. Provided
that this clause shall not entitle the employee to payment of the standing
charge allowance, in the calculation of any accrued or pro-rata annual leave or
long service leave upon termination of employment.
(e) The payments
under sub-clause (b)(ii) or (iii) of this clause shall not be payable when the
(i) employee is
absent from duty without the consent of the employer; or
(ii) vehicle is
unavailable due to accident or mechanical defect, provided that payments under
sub-clause (b)(ii) and (iii) herein shall be paid for any day on which the
employee provides an alternate vehicle for the purposes of performing his/her
duties under this award; or
(iii) employee is
on any unpaid leave.
(f) Except in
circumstances where the employee is paid a lump sum in accordance with the
agreement reached in (b)(ii) or (iii) above, the employee shall maintain an
accurate record of distances travelled for work performed under this award in
the form of or similar to that contained in Schedule 3 of Part D of this award.
(g) To receive a
payment for kilometres travelled in accordance with either sub-clause (b)(ii)
or (iii) of this clause, the employee shall present to the employer the record
of distances travelled for work performed under this award, by no later than 7
working days of the end of the pay period in which the travel occurred.
(h) Payment for
kilometres travelled by the employee in performing his/her duties under this
award, shall be made in the pay period next following that in which the travel
schedule was lodged with the employer.
(i) Notwithstanding
anything contained in this clause, an employer and an employee may agree to
locomotion provisions different from those prescribed in this clause provided
that such provisions shall not result in payment less than the employee would
have received in accordance with sub-clauses (b)(ii) or (iii) herein.
(j) Any
employee who, immediately preceding the commencement of this award, received a
locomotion allowance under a Letter of Appointment registered in accordance
with the Real Estate Industry (State) Award published in the Industrial Gazette
Volume 274 dated 7 May 1993 and all variations thereto, will not by the
operation of this award suffer any net reduction in the amount of that
locomotion allowance while he/she remains employed by the employer named in the
Letter of Employment or any successor or assignee of that employer.
B. OTHER THAN WEEKLY USE - PROPERTY MANAGERS OR
PROPERTY OFFICERS
Should a full-time property manager or property officer
agree to make his or her own vehicle available for use in the course of his or
her employment, the following shall apply:
(a) The
Employment Agreement shall specify which days of the week the vehicle is
required to be made available for use, and the employee shall be recompensed at
the rate of one-fifth of the weekly lump sum for each such day;
(b) The days of the
week upon which the vehicle is required to be made available may be varied by
agreement where circumstances arise making it mutually convenient to do so;
(c) Notwithstanding
the provisions of this clause, where the vehicle is required to be made available
on more than two days in the week, the weekly lump sum allowance shall be paid
for that week.
32. TELEPHONE
(a) Where an
employee uses a telephone at his or her place of residence in the course of
his/her duties performed under this award, he/she shall be reimbursed by the
employer the annual rental as set out in Item 4 of Table 2 of Part E, Monetary
Rates at a weekly rate as set out in Item 4 of Table 2 of Part E, Monetary
Rates and the cost of local, STD and/or trunk calls required to be made by the
employer.
(b) In respect
of a part-time employee or a casual employee, one-fifth of the weekly rental
shall be paid in respect of each day worked in addition to the cost of each
call required to be made by the employer. Payment for the cost of calls shall
be made in the pay period next following that in which the calls were made.
(c) By agreement
an employer may pay the lump sum as set out in Item 4 of Table 2 of Part E,
Monetary Rates per week to cover the cost of all local, STD and ISD calls and
rental.
33. ANNUAL HOLIDAYS LOADING
(a) In this
clause the Annual Holidays Act, 1944, is referred to as "The Act".
(b) Before an
employee is given and takes an annual holiday, or where by agreement between
the employer and employee the annual holiday is given and taken in more than
one separate period, then before such separate periods the employer shall pay
the employee a loading determined in accordance with this clause. (Note: The obligation to pay in advance does
not apply where an employee takes an annual holiday wholly or partly in advance
- see sub-clause (f).)
(c) The loading
is payable in addition to the pay for the period of holiday pay given and due
to the employee under the Act and this award.
(d) The loading
is to be calculated in relation to any period of annual holiday to which the
employee becomes or had become entitled since 1 September 1974, under the Act,
and this award (but excluding days added to compensate for public or special
holidays falling on an employee's rostered day off not worked) and which
commences on or after 1 December 1974, or where such a holiday is given and
taken in separate periods, then in relation to each such separate period.
(e) The loading
is the amount payable for the period or the separate period as the case may be,
stated in subclause (d) at the rate per week of 17 1/2 per cent of the
appropriate minimum salary prescribed by this award for the classification in
which the employee was employed immediately before commencing his or her annual
holiday, but shall not include other allowances or payments prescribed by this
award.
(f) No loading
is payable to an employee who takes an annual holiday wholly or partly in
advance provided that, if the employment of such employee continues until the
day when he/she would normally have become entitled under the Act to an annual
holiday, the loading then becomes payable in respect of the period of such
holiday and is to be calculated in accordance with subclause (e) of this clause
applying the award minimum salary payable on that day. This subclause applies where an annual
holiday has been taken wholly or partly in advance after 1 September 1974, and
the entitlement to the holiday arises after that date.
(g) Where, in
accordance with the Act and after 1 September 1974, the employer's
establishment or part of it is temporarily closed down for the purpose of
giving annual holiday or leave without pay to the employees concerned: -
(i) an employee
who is entitled under the Act to an annual holiday and who is given and takes such
holiday shall be paid the loading calculated in accordance with subclause (c)
of this clause;
(ii) an employee
who is not entitled under the Act to an annual holiday and who is given and
takes leave without pay shall be paid in addition to the amount payable to him
or her under the Act such proportion of the loading that would have been
payable to him or her under this clause if he or she had become entitled to an
annual holiday prior to the closedown as his or her qualifying period of
employment in completed weeks bears to fifty-two.
(h) (i) When the employment of an employee is
terminated by his or her employer on or after 1
December 1974, for a cause other than misconduct and at the
time of termination the employee has not been given and has not taken the whole
of an annual holiday to which he or she became entitled after 1 September 1974,
he or she shall be paid a loading calculated in accordance with subclause (e)
for the period not taken.
(ii) Except as
provided by paragraph (i) of this subclause, no loading is payable on the
termination of an employee's employment.
34. PUBLIC HOLIDAYS
(a) The
following days shall be observed as holidays, namely, New Year's Day, Australia
Day, Anzac Day, Good Friday, Easter Sunday, Easter Monday, Queen's Birthday,
Six Hour Day, Christmas Day, Boxing Day, and any other holiday which may, from
time to time, be proclaimed for the State New South Wales, or any locality
therein (in respect only to employees in that locality), in addition to or in
lieu of such day or days. However, an employee may decline at his or her
discretion to work on Good Friday, 25 April and 25 December.
(b) An employee
who works at the specific direction of the employer on one of the days
specified in subclause (a) of this clause shall be allowed by the employer two
consecutive days holidays in lieu of the day worked within one week of the day
so worked or an employee who works on any of the days specified in subclause
(a) of this clause and who has not been allowed two days off in lieu of the day
worked within one week of the day so worked shall be paid for such day at the
rate of two days pay for each day worked.
(c) A casual
employee employed to work on any holiday specified herein shall be paid double
time and one half with a minimum payment, in the case of a Property Manager or
Property Officer, for 3 hours work.
35. JURY SERVICE
(a) An employee,
other than a casual employee, required to attend for jury service on a day on
which he or she would otherwise have been at work shall be reimbursed by the
employer an amount equal to the difference between the amount paid in respect
of his or her attendance for such jury service and:
(i) his or her
minimum weekly salary pursuant to this award in respect of his or her period of
jury service; and
(ii) in respect
of an employee entitled to a motor vehicle standing charge allowance prescribed
by this award, that allowance in respect of his or her period of jury service.
(b) An employee
shall notify the employer as soon as possible of the date upon which he or she
is required to attend for jury service.
Further, the employee shall give the employer proof of his or her
attendance, the duration of such attendance and the amount received in respect
of jury service.
36. COMPASSIONATE LEAVE
(i) An
employee, other than a casual employee, shall be entitled to two days
compassionate leave on each occasion of the death of a person within Australia
as prescribed in subclause (iii) of this clause. Where the death of a person
prescribed by the said subclause (iii) occurs outside Australia, the employee
shall be entitled to two days compassionate leave. The employee shall be paid
for such leave:
(a) his or her
minimum weekly salary pursuant to this award, in respect of the period of such
leave; and
(b) in respect
of an employee entitled to a motor vehicle standing charge allowance prescribed
by this award, that allowance in respect of the period of that leave.
(ii) The
employee must notify the employer as soon as practicable of the intention to
take compassionate leave and will provide to the satisfaction of the employer
proof of death.
(iii) Compassionate
leave shall be available to the employee in respect to the death of a person
prescribed for the purposes of personal/carer’s leave as set out in subparagraph
(ii) of paragraph (c) of subclause (1) of clause 16A, State Personal/Carer’s
Leave Case - August 1996, provided that, for the purpose of compassionate
leave, the employee need not have been responsible for the care of the person
concerned.
(iv) An Employee
shall not be entitled to compassionate leave under this clause during any
period in respect of which the employee has been granted other leave.
(v) Compassionate
leave may be taken in conjunction with other leave available under subclauses
(2), (3), (4), (5) and (6) of the said clause 16A. In determining such a
request, the employer will give consideration to the circumstances of the
employee and the reasonable operational requirements of the business.
37. EXEMPTIONS
(a) Except As To
The Provisions Of Sub-Clauses (B), (C) And (D) Of Clause 12 Salesperson’s
Commission, Clause 13 Annual Holidays, Clause 14 Long Service Leave, Clause 15
Superannuation, Clause 16 Sick Leave, Clause 16A Personal/Carers Leave, Clause
31 Locomotion, Clause 32 Telephone, Clause 33 Annual Leave Loading And Clause
34 Public Holidays, This Award Shall Not Apply To;
(i) a
Salesperson:
(1) who is
required to work on 6 days of the week and who is in receipt of a salary at
least equal to the salary prescribed by Table 1, Rates of Pay of Part E,
Monetary Rates for a SALESPERSON plus 30 per cent of that amount, and
(2) in respect
of whom a Certificate of Exemption has been registered by the employer; or
(ii) a
Salesperson:
(1) who is
required to work on 7 days of the week and who is in receipt of a salary at
least equal to the salary prescribed by Table 1, Rates of Pay of Part E,
Monetary Rates for a SALESPERSON plus 45 per cent of that amount, and
(2) in respect of
whom a Certificate of Exemption has been registered by the employer; or
(iii) a Property
Manager:
(1) who is
required to work on 6 days of the week and who is in receipt of a salary of at
least equal to the salary prescribed by Table 1, Rates of Pay of Part E,
Monetary Rates for a PROPERTY MANAGER plus 30 per cent of that amount; and
(2) in respect
of whom a Certificate of Exemption has been registered by the employer; or
(iv) a Property
Manager:
(1) who is
required to work on 7 days of the week and who is in receipt of a salary of at
least equal to the salary prescribed by Table 1, Rates of Pay of Part E,
Monetary Rates for a PROPERTY MANAGER plus 45 per cent of that amount; and
(2) in respect
of whom a Certificate of Exemption has been registered by the employer.
(b) Certificates
of Exemption shall be prepared by the employer in the form contained in
Schedule 2 of Part D of this award.
(c) It is a
condition of employment that the employee shall sign the Certificate of
Exemption on or before the day employment commences.
(d) The employer
and the employee shall sign the Certificate of Exemption and each shall receive
a copy. Within 14 days of the
Certificate of Exemption being signed, the employer shall send two copies of it
to either:
The
Real Estate Employers Federation of NSW
Level
16, 44 Market Street, SYDNEYNSW2000:
or
The
Auctioneers & Agents Guild
Level
3, 1 James Place, NORTH SYDNEYNSW2060,
together
with:
(i) The
employer’s registration fee as set out in Item 5 of Table 2 - Other Rates and
Allowances of Part E, Monetary Rates made payable to either: The Real Estate
Employers Federation of NSW or The Auctioneers & Agents Guild; and
(ii) The
employee’s registration fee as set out in Item 5 of Table 2 - Other Rates and Allowances
of Part E, Monetary Rates made payable to the Real Estate Association of NSW.
(e) It is a
condition of employment that the employee shall, if required by the employer,
either pay to the employer the amount as set out in Item 5 of Table 2 - Other
Rates and Allowances of Part E, Monetary Rates being the registration fee
payable by the employer on behalf of the employee or sign an authority
authorising the employer to deduct the registration fee as set out in Item 5 of
Table 2 - Other Rates and Allowances of Part E, Monetary Rates from the
employee’s salary within such period as may be agreed.
(f) Any
variation in respect of the Certificate of Exemption shall not, unless agreed
in writing between the employer and the salesperson, have the effect of
terminating the Certificate of Exemption prepared in accordance with this
clause and the creation of a new Certificate of Exemption, but shall amount to
a variation of the Certificate of Exemption which shall remain in force and
effect varied only to the extent of the change. Within 14 days of such
variation being signed, the employer shall send two copies of it to either The
Real Estate Employers’ Federation of NSW or The Auctioneers & Agents Guild,
provided that the operative date of such variation shall be the date upon which
the variation is signed by the employee. Provided that the requirement to
forward copies of the variation to either The Real Estate Employers’ Federation
of NSW or The Auctioneers & Agents Guild shall not apply to a variation which
only affects commission arrangements between the employer and the employee.
PART C
COMMISSION ONLY
SALESPERSONS
38. SCOPE OF PART C
This PART shall apply only to a salesperson who is licensed
pursuant to Division 1, Part III of the Property Stock & Business Agents
Act 1941 (NSW), as stock and station agents, real estate agents or business
agents and who together with his/her employer have prepared an Employment
Agreement in accordance with Clause 11 of this award.
Note: This PART does not apply to employees under PART B of
this award.
39. EXCLUSION
This PART shall not apply to a Licensee-in-Charge, Property
Manager, Probationary Salesperson, Part-Time Salesperson or Casual Salesperson.
40. ALTERNATIVE FORM OF EMPLOYMENT
Subject to clause 37 of this PART a salesperson may by
agreement with his or her employer be employed pursuant to this PART as an
alternative to employment under PART B.
41. EMPLOYEE
A salesperson employed pursuant to this PART shall be an
employee for all purposes.
42. APPLICATION OF CERTAIN BENEFITS
In addition to the entitlements conferred by this PART a
salesperson employed hereunder shall be covered by:
(a) the Annual
Holidays Act 1944 (NSW);
(b) the Long
Service Leave Act 1955 (NSW); and
(c) PART A of
this award.
(d) Occupational
Superannuation legislation.
43. REMUNERATION
(a) Salesperson's
commission shall be calculated in accordance with the method agreed between
employer and employee and evidenced in an Employment Agreement as required by
Clause 11 of this award.
(b) Where a sale
is effected by two or more salesperson the selling commission shall be divided
between the salesperson in such proportion as they agree.
44. ROSTERED DAYS OFF
(a) A
salesperson employed pursuant to this Part shall be allowed a minimum of two
days free of duty in each week. Such rostered days off shall be given and taken
in one consecutive period or two periods each of one day.
(b) However, a
salesperson and his or her employer may agree in writing that days off be
deferred and taken later. Leave not taken for whatever reason shall be paid at
the end of the 12 month period or upon termination and calculated in accordance
with the provisions of Clause16 (b)(ii).
(c) The taking
of deferred rostered days off in any week or weeks shall in no way affect the
taking of days off required by subclause (a).
PART D - SCHEDULE 1
EMPLOYMENT AGREEMENT
AGREEMENT: dated................................................ 199...
BETWEEN: .........................................................ACN
No. .........
(Company
name if applicable)
trading as
...............................................................................
(‘the
Employer’)
AND: ...........................................................................
of (insert address)................................................................................
....................................................................................................
(‘the
Employee’)
RECITALS
(A) The Employer
is licensed under the Property Stock & Business Agents Act 1941 (‘the Act’)
and carries on business as a real estate agent at (insert address)
......................................................................................................
(B) The Employee
is registered, or is to be registered, as a "Salesperson" under the
Act, and holds, or will apply to hold, a current Certificate of Registration or
holds a Real Estate Agents Licence.
(C) The Parties
acknowledge that this Agreement:
(1) complies
with the requirements of Part ‘A’ of the Real Estate Industry (State) Award
(‘the Award’);
(2) will be
lodged for approval in accordance with Part ‘A’ of the Award and;
(3) records the
terms and conditions of the Employee’s ongoing employment.
AGREEMENT
1. EMPLOYMENT
1.1 For the
purposes of the Award, the Employee will be classified as a: (please tick)
1.2 Salesperson
(Salaried) - Full-time ¨ Part-time ¨ Casual
¨
Salesperson
(Probationary) - ¨
Salesperson (Commission Only) - ¨
Licensee-in-Charge - ¨
Property
Manager - Full-time ¨ Part-time ¨ Casual
¨
Property Officer - Full-time ¨ Part-time ¨ Casual
¨
1.2 Subject to clause 1.3 the Employer will
employ the Employee on a permanent or casual basis until this agreement is
terminated by either party in accordance with clause 7 of this Agreement.
1.3 (Delete either (a) or (b), whichever is not applicable)
(a) The
employment is subject to the satisfactory completion by the Employee of a three
month trial period. At any time during this period, either party may terminate
the employment by providing one week’s notice to the other party. On or before
the end of the trial period the Employee’s performance/conduct will be
reviewed. If satisfactory, employment will be confirmed; or
(b) The
employment is not subject to a trial period.
2. EMPLOYEE’S
DUTIES AND RESPONSIBILITIES
2.1 The Employee
will, during the period of employment:-
(a) comply with
the Employer’s policies and procedures as varied from time to time (which shall
not be inconsistent with the Award);
(b) perform all
such lawful duties, which are directed by the employer;
(c) promote the
business, goodwill and reputation of the Employer’s business;
(d) if the Employee
is a Salesperson actively seek property listings on behalf of and in the name
of the Employer and notify the Employer of all properties available for
listing. The Employee will not withhold any listing from the Employer and will
not offer any property to any prospective buyer, which is not listed by or
through the Employer. When the Employee obtains a property listing, the
Employer will ensure that an Agency Agreement authority is executed by the
prospective seller; and
(e) comply with
the Act’s requirements.
2.2 The Employee
will not be engaged, concerned or interested in any business, which competes,
with the Employer’s business without the prior written consent of the Employer.
2.3 The Employee
will not accept any payment or any other benefit in money or in kind from any
person as an inducement or reward for any act or forbearance or in connection
with any matter or business transacted by or on behalf of the Employer without
the knowledge and authorisation of the Employer.
3. THE
EMPLOYEE’S UNDERTAKINGS
3.1 The Employee
undertakes:-
(a) to provide
at the place of work and maintain at his/her own expense a registered and
insured motor vehicle in good mechanical condition where a motor vehicle is not
supplied by the Employer, provided that in such circumstances the Employee will
be entitled to the locomotion allowance prescribed by the award. The motor
vehicle must be comprehensively insured to cover all risks associated with the
Employee’s use of the motor vehicle in the course of his/her employment. The
Employee must hold a current drivers licence. The Employer reserves the right
to sight the Employee’s driver's licence and motor vehicle insurance policy
from time to time;
(b) to report to
the Employer as soon as possible any complaints made by any client or customer
of the Employer of which the Employee becomes aware;
(c) to notify
the Employer promptly of any accident, illness or injury (and anticipated recovery period) preventing the
Employee, temporarily or permanently, from performing his/her duties under this
Agreement;
(d) to attend
such training seminars, programmes or conferences relevant to his/her
vocational development as the Employer may direct at the Employer’s expense;
(e) not to incur
expenses on the Employer’s behalf or pledge the credit of the Employer without
the prior approval of the Employer;
(f) not to
enter into or sign any agreement or contract on behalf of the Employer or make
any promise or representation on behalf of the Employer without the prior
approval of the Employer;
(g) to properly
receipt money received by the Employee in the course of his/her employment and
deal with it in accordance with the Employer’s policy/procedures manual, or
normal procedures or as directed from time to time by the Employer;
(h) perform the
duties assigned to him or her conscientiously and diligently and refrain from
doing anything, which may adversely affect or reflect upon the Employer or the
Employer’s business;
(i) to keep
his/her registration under the Act current at all times, unless unable to do so
for a reason beyond the Employee’s control in which case the Employee shall
promptly inform the Employer of that fact; and
(j) comply with
the employer’s office policies and procedures.
4. EMPLOYERS’
UNDERTAKINGS
4.1 The Employer undertakes to:-
(a) disclose to
the Employee such of the Employer’s current property listings, as the Employer
considers appropriate;
(b) provide the
Employee with sufficient office space, furniture, office telephone facilities,
maps, plans, stationery, manuals, diary, forms of contracts, forms of leasing
agreements and all other forms and agreements as are necessary to enable the
Employee to fully perform his/her duties and responsibilities under this
Agreement;
(c) allow the
Employee to use all names, trademarks, logo or symbols owned by or used by the
Employer in the conduct of the Employer’s business;
(d) bring to the
Employee’s attention any relevant policy or procedure which is required to be
observed by the Employee, where practicable, by providing copies of such
policies to the Employee and by updating any such policy in a timely fashion;
(e) provide the
Employee with any instruction and training deemed necessary by the Employer;
and
(f) consult
with the Employee regarding any significant changes in working arrangements
and/or policies proposed to be introduced by the Employer.
5. EXPENSES
The Employee will be reimbursed for any expenses, which are
incurred at the request of the Employer. Where reasonably practicable, expenses
will be paid in advance.
6. REMUNERATION
AND ALLOWANCES
6.1A SALARY ONLY
The
Employer will pay the Employee a base salary of $.......... per week.
6.1B SALARY PLUS
COMMISSION/BONUS
The Employer will pay the Employee a base salary of $.........
per week. The Employee will be further entitled to sales commission/bonus
calculated in accordance with the provisions contained in the annexure to this
Agreement. Where there is an entitlement to the payment of commission/bonus to
the Employee, the Employer will pay the commission/bonus by the 14th day of the
month following the period in which the commission is received by the Employer.
6.1C COMMISSION
ONLY- (Only Salespersons who are licensed pursuant to Division 1, Part 3 of the
Property Stock and Business Agents Act 1941 can be employed as a Commission
Only Salesperson)
The Employer and the Employee agree that sales commission
will be calculated in accordance with the provisions contained in the annexure
to this agreement. The Employer will pay the commission to the Employee no
later than 10 working days after the employer has received the commission for
the sale of the property.
6.1D LOCOMOTION
ALLOWANCE (Delete (A) OR (B), whichever is not applicable)
A. WEEKLY USE (delete (i) or (ii) whichever
is not applicable)
(i) The
employer is to provide a motor vehicle for use by the employee in the course of
the employee’s employment; or
(ii) The
employee is required to provide a motor vehicle and will receive an allowance
by way of either:- (tick the appropriate box)
¨
a standing charge and per kilometre supplement; or
¨ a lump sum.
The amount of allowance paid will be calculated in
accordance with either Item 2 or 3 of Table 2, Other Rates and Allowances, of
Part E Monetary Rates of the Award, and will depend upon the age and engine
capacity of vehicle used by the employee from time to time during the period of
employment.
B. OTHER THAN
WEEKLY USE (FULL-TIME PROPERTY MANAGERS/OFFICERS ONLY)
The employee is only required to provide a motor vehicle on
the following specified days each week to a maximum of two days:
(i)
_____________________________ (ii) ______________________________
These days may be varied by agreement where circumstances make
it mutually convenient to do so. For each day specified above the employee will
be paid one fifth of the lump sum prescribed in either Item 2 or 3 of Table 2,
Other Rates and Allowances, of Part E Monetary Rates of the Award, depending
upon the age and engine capacity of vehicle used by the employee from time to
time during the period of employment.
6.1DA The following
details relate to the vehicle provided by the employee upon commencement of
employment under this Employment Agreement:
Engine
Capacity: ..........................cc’s
Date
stamp as per compliance plate of vehicle: ..............mth
.............year
6.1E PHONE
ALLOWANCES (Delete either (a) or (b), whichever is not applicable)
(a) The employee
is not required to use a telephone at his or her place of residence in the
course of his or her employment; or
(b) The employee
is required to use a telephone at his or her place of residence in the course
of employment. The employee will receive reimbursement for such use in
accordance with Item 4 of Table 2, Other Rates and Allowances of Part E
Monetary Rates of the Award, by way of either:- (tick the appropriate box)
¨
a weekly allowance plus cost of calls; or
¨
a lump sum.
6.1EA Where the
Employee is directed by the Employer to use or supply a mobile phone the
Employer will meet the cost of the use or supply of the phone. The basis on
which the cost shall be met shall be agreed between the Employee and the
Employer and evidenced in Clause 11 of this Employment Agreement.
6.2 The payment
of wages and allowances will be made [wkly, frtngtly, mthly] by way of [cash,
chq, EFT]
6.3 The
Employee’s commission will become due and owing to the Employee only if
commission in respect of the completed transaction has been received by the Employer.
6.4 Any action,
claim or demand (‘claim’) for commission will be maintained by the Employer in
the Employer’s name and any decision on whether to pursue that course will be
in the sole discretion of the Employer. If a claim for commission is made by
the Employer, the Employee will only be paid commission if the claim is
successful, and the commission recovered. The Employer may at his/her sole
discretion settle a claim for commission. In such case, the Employee will only
be entitled to a proportion of the commission calculated in accordance with the
percentages referred to in the annexure to this Employment Agreement.
6.5 In
accordance with the provisions of the Act, the Employee must disclose to the
Employer any intention to:
(a) purchase any
property listed by or through the Employer or any intention to become
beneficially interested in the purchase of any property listed by or through
the Employer; or
(b) sell any
property or list for sale with the Employer any property that the Employee owns
or is in any way beneficially interested.
7. TERMINATION
OF EMPLOYMENT
7.1 If the
Employee wishes to voluntarily terminate his/her employment (and this
Agreement), the Employee must give one week’s notice in writing to the
Employer. In the event that notice is not so given the Employee shall forfeit
the equivalent salary.
7.2 The Employer
may terminate this Agreement by giving the Employee the notice (or payment of
salary in lieu of notice) referred to in paragraph 7.3 depending on the
continuous duration of the Employee’s employment.
7.3
|
The Employee’s Period
of Continuous Service
|
Minimum Period of
Notice
|
|
Not more than 1 year
|
1 week
|
|
More than 1 year but less than 3 years
|
2 weeks
|
|
More than 3 years but less than 5 years
|
3 weeks
|
|
More than 5 years
|
4 weeks
|
If the Employee is 45 years of age or older and has been
employed by the Employer for at least two years, the Employee is entitled to an
additional one weeks’ notice (or payment of salary in lieu of notice).
7.4 Notwithstanding
the provisions of Clause 7.2 herein, the Employer may dismiss the Employee
without notice if the Employee is guilty of Misconduct of a type that would
make it unreasonable to require the Employee to continue his/her employment.
Misconduct includes dishonesty, gross neglect of duty (eg through drunkenness
or intoxication), wilful misrepresentation of qualifications or employment
history, conviction of a criminal offence which in the opinion of the Employer
affects the Employee’s suitability as an employee, gross misbehaviour which may
injure the Employers reputation or wilful disobedience of the Employer’s lawful
directions.
7.5 On
termination of his/her employment (for any reason), the Employee will
immediately deliver up to the Employer all property and information belonging
to the Employer, including, but without being limited to, past, current or
prospective customer or client lists, property listings, files, business
stationery, diary, manuals, unused business cards, legal documents, keys,
books, plans, maps, tape recordings, two-way radios, mobile telephones,
clothing and uniforms, credit cards, signs or marks in relation to any property
or transaction completed or in the process of completion, or listed with the
Employer at the date of termination of employment, and all other goods supplied
to the Employee by the Employer.
7.6 Termination
of the Employee’s employment will not limit the Employer’s right against the
Employee in respect of any breach of this Agreement by the Employee or any
claim for loss or damage arising in favour of the Employer or any corresponding
right which the Employee may have against the Employer for a breach of this
agreement.
8. DUTY OF
CONFIDENTIALITY
8.1 The Employee
shall at all times treat as and keep confidential all information that is the
property of the Employer that has not lawfully entered the public domain, which
includes but is not limited to the names and other information contained within
the Employer’s Database (as defined in clause 8.3), which the Employee may
become aware of during the course of his/her employment;
8.2 The Employee
shall not use or divulge any of the information referred to in clause 8.1
either during the period of
employment or after employment ceases, other than:
(a) in the
ordinary course of his/her employment;
(b) with the
Employer’s prior written consent;
(c) for the
purpose of obtaining legal advice as to confidentiality; or
(d) by
compulsion of law.
8.3 In this
clause ‘Database’ includes but is not limited to:
(a) names,
addresses and phone numbers of sellers, buyers and prospective sellers and
buyers or the names addresses and phone numbers of any property owner on whose
behalf a property is managed by the Employer;
(b) financial
information;
(c) budgets; and
(d) Employer’s
contract information
9. VARIATION
OF TERMS
Any variation to this Employment Agreement shall not cause
termination of this Agreement unless specifically agreed to by the parties.
Upon any variation this agreement shall remain in full force and effect, varied
only to the extent of the change. Any such variation agreed to by the parties,
shall be registered in accordance with the provisions of the award.
10. STATUTORY/AWARD
ENTITLEMENTS
The parties note that the minimum conditions of employment
are contained in the Award and other conditions under state and federal law
(e.g. Annual Leave, Long Service Leave and Occupational Superannuation).
11. OTHER
PROVISIONS (insert as agreed)
.........................................................................................................
...........................................................................................................
12. REGISTRATION
OF THIS EMPLOYMENT AGREEMENT
The Employee acknowledges that the execution of this
Employment Agreement and payment of the Employee’s registration fee is a
condition of employment with the Employer. The payment of the employee’s
registration fee does not extend membership of the Real Estate Association of
NSW to the employee.
SIGNED by................................................... SIGNED for and on behalf of
..................
Name
of Employee Name of
Organisation
................................................................... ............................................................
Signature
of Employee Signature
of Employer
in the presence of : in
the presence of :
................................................................. ............................................................
Signature
of Witness Signature
of Witness
.................................................................. ............................................................
Name
of Witness (Print) Name
of Witness (Print)
13. AUTHORITY TO
DEDUCT
I hereby authorise the Employer to deduct $50.00 from salary
payments owing to me. This amount is my registration fee for this Employment
Agreement and is payable to the Real Estate Association of NSW. This authority
is given pursuant to Section 118(2) of Part 10 of Chapter 2 of the Industrial
Relations Act 1996.
Signed............................................................
This...............day of................ 19.......
OFFICE USE ONLY
Receipt No: .............................. Registration No:
........................
ERA.App:.............................. Registration
Date: .....................
PART D - SCHEDULE
2
CERTIFICATE OF
EXEMPTION
AGREEMENT: dated................................................ 199...
BETWEEN: .........................................................ACN
No. ................
(Company
name if applicable)
trading as
......
...................................................................................
(‘the
Employer’)
AND: .....................................................................................
of (insert
address)..................................................................................
.....................................................................................................
(‘the
Employee’)
RECITALS
(A) The Employer
is licensed under the Property Stock & Business Agents Act 1941 (‘the Act’)
and carries on business as a real estate agent
at (insert address) ....................................................................................
...................................................................................
(B) The Employee
is registered, or is to be registered, as a "Salesperson" under the
Act, and holds, or will apply to hold, a current Certificate of Registration or
holds a Real Estate Agents Licence.
(C) The Parties
acknowledge that this Agreement:
(1) complies
with the requirements of Part ‘A’ of the Real Estate Industry (State) Award
(‘the Award’); and
(2) will be
lodged for approval in accordance with Part ‘A’ of the Award; and
(3) records the
terms and conditions of the Employee’s ongoing employment.
AGREEMENT
1. EMPLOYMENT
1.1 For the purposes
of the Award, the Employee will be classified as a: (please tick)
¨ Salesperson
¨ Property Manager
1.2 (Delete
either (a) or (b), whichever is not applicable)
(a) The
employment is subject to the satisfactory completion by the Employee of a three
month trial period. At any time during this period, either party may terminate
the employment by providing one week’s notice to the other party. On or before
the end of the trial period the Employee’s performance/conduct will be
reviewed. If satisfactory, employment will be confirmed; or
(b) The
employment is not subject to a trial period.
2. EMPLOYEE’S
DUTIES AND RESPONSIBILITIES
2.1 The Employee
will during the period of employment:-
(a) comply with
the Employer’s policies and procedures as varied from time to time (which shall
not be inconsistent with the Award);
(b) perform all
such lawful duties, which are directed by the employer;
(c) promote the
business, goodwill and reputation of the Employer’s business;
(d) if the
Employee is a Salesperson actively seek property listings on behalf of and in
the name of the Employer and notify the Employer of all properties available
for listing. The Employee will not withhold any listing from the Employer and
will not offer any property to any prospective buyer, which is not listed by or
through the Employer. When the Employee obtains a property listing, the
Employer will ensure that an Agency Agreement authority is executed by the
prospective seller; and
(e) comply with
the Act’s requirements.
2.2 The Employee
will not be engaged, concerned or interested in any business, which competes,
with the Employer’s business without the prior written consent of the Employer.
2.3 The Employee
will not accept any payment or any other benefit in money or in kind from any
person as an inducement or reward for any act or forbearance or in connection
with any matter or business transacted by or on behalf of the Employer without
the knowledge and authorisation of the Employer.
3. THE
EMPLOYEE’S UNDERTAKINGS
3.1 The Employee
undertakes:-
(a) to provide
at the place of work and maintain at his/her own expense a registered and
insured motor vehicle in good mechanical condition where a motor vehicle is not
supplied by the Employer, provided that in such circumstances the Employee will
be entitled to the locomotion allowance prescribed by the award. The motor
vehicle must be comprehensively insured to cover all risks associated with the
Employee’s use of the motor vehicle in the course of his/her employment. The
Employee must hold a current drivers licence. The Employer reserves the right
to sight the Employee’s driver's licence and motor vehicle insurance policy
from time to time;
(b) to report to
the Employer as soon as possible any complaints made by any client or customer
of the Employer of which the Employee becomes aware;
(c) to notify
the Employer promptly of any accident, illness or injury (and anticipated
recovery period) preventing the Employee, temporarily or permanently, from
performing his/her duties under this Agreement;
(d) to attend
such training seminars, programmes or conferences relevant to his/her
vocational development as the Employer may direct at the Employer’s expense;
(e) not to incur
expenses on the Employer’s behalf or pledge the credit of the Employer without
the prior approval of the Employer;
(f) not to
enter into or sign any agreement or contract on behalf of the Employer or make
any promise or representation on behalf of the Employer without the prior
approval of the Employer;
(g) to properly
receipt money received by the Employee in the course of his/her employment and
deal with it in accordance with the Employer’s policy/procedures manual, or
normal procedures or as directed from time to time by the Employer;
(h) perform the
duties assigned to him or her conscientiously and diligently and refrain from
doing anything which may adversely affect or reflect upon the Employer or the
Employer’s business; and
(i) to keep
his/her registration under the Act current at all times, unless unable to do so
for a reason beyond the Employee’s control in which case the Employee shall
promptly inform the Employer of that fact; and
(j) comply with
the employer’s office policies and procedures.
4. EMPLOYERS’
UNDERTAKINGS
The
Employer undertakes to:-
(a) disclose to
the Employee such of the Employer’s current property listings, as the Employer
considers appropriate;
(b) provide the Employee
with sufficient office space, furniture, office telephone facilities, maps,
plans, stationery, manuals, diary, forms of contracts, forms of leasing
agreements and all other forms and agreements as are necessary to enable the
Employee to fully perform his/her duties and responsibilities under this
Agreement;
(c) allow the
Employee to use all names, trademarks, logo or symbols owned by or used by the
Employer in the conduct of the Employer’s business;
(d) bring to the
Employee’s attention any relevant policy or procedure which is required to be
observed by the Employee, where practicable, by providing copies of such
policies to the Employee and by updating any such policy in a timely fashion;
(e) provide the
Employee with any instruction and training deemed necessary by the Employer;
and
(f) consult
with the Employee regarding any significant changes in working arrangements
and/or policies proposed to be introduced by the Employer.
5. EXPENSES
The Employee will be reimbursed for any expenses, which are
incurred at the request of the Employer. Where reasonably practicable, expenses
will be paid in advance.
6. REMUNERATION
AND ALLOWANCES
6.1A SALARY ONLY
The
Employer will pay the Employee a base salary of $...... per week.
6.1B SALARY PLUS
COMMISSION/BONUS
The Employer will pay the Employee a base salary of $......
per week. The Employee will be further entitled to sales commission/bonus
calculated in accordance with the provisions agreed to between the Employer and
the Employee and as contained in a separate document, a copy of which is to be
kept by each of them.
6.1C LOCOMOTION
ALLOWANCE (delete (A) OR (B), whichever is not applicable)
A. WEEKLY USE (delete (i) or (ii) whichever
is not applicable)
(i) The employer
is to provide a motor vehicle for use by the employee in the course of the
employee’s employment; or
(ii) The
employee is required to provide a motor vehicle and will receive an allowance
by way of either:- (tick the appropriate box)
¨
a standing charge and per kilometre supplement; or
¨ a lump sum.
The amount of allowance paid will be calculated in
accordance with either Item 2 or 3 of Table 2, Other Rates and Allowances, of
Part E Monetary Rates of the Award, and will depend upon the age and engine
capacity of vehicle used by the employee from time to time during the period of
employment.
B. OTHER THAN WEEKLY USE (FULL-TIME
PROPERTY MANAGERS/OFFICERS ONLY)
The employee is only required to provide a motor vehicle on
the following specified days each week to a maximum of two days:
(i)
_____________________________ (ii) ______________________________
These days may be varied by agreement where circumstances
make it mutually convenient to do so.
For each day specified above the employee will be paid one
fifth of the lump sum prescribed in either Item 2 or 3 of Table 2, Other Rates
and Allowances, of Part E Monetary Rates of the Award, depending upon the age
and engine capacity of vehicle used by the employee from time to time during the
period of employment.
6.1CA The
following details relate to the vehicle provided by the employee upon
commencement of employment under this Employment Agreement:
Engine Capacity: ..........................cc’s
Date
stamp as per compliance plate of vehicle: ..............mth
.............year
6.1D PHONE
ALLOWANCES (Delete either (a) or (b), whichever is not applicable)
(a) The employee
is not required to use a telephone at his or her place of residence in the
course of his or her employment; or
(b) The employee
is required to use a telephone at his or her place of residence in the course
of employment. The employee will receive reimbursement for such use in
accordance with Item 4 of Table 2, Other Rates and Allowances of Part E Monetary
Rates of the Award, by way of either: - (tick the appropriate box)
¨
a weekly allowance plus cost of calls; or
¨
a lump sum.
6.1DA Where
the Employee is directed by the Employer to use or supply a mobile phone the
Employer will meet the cost of the use or supply of the phone. The basis on
which the cost shall be met shall be agreed between the Employee and the
Employer and evidenced in Clause 11 of this Employment Agreement.
6.2 The payment
of wages and allowances will be made [wkly, frtngtly, mthly] by way of [cash,
chq, EFT]
6.3 The
Employee’s commission will become due and owing to the Employee only if
commission in respect of the completed transaction has been received by the
Employer.
6.4 Any action,
claim or demand (‘claim’) for commission will be maintained by the Employer in
the Employer’s name and any decision on whether to pursue that course will be
in the sole discretion of the Employer. If a claim for commission is made by
the Employer, the Employee will only be paid commission if the claim is
successful, and the commission recovered. The Employer may at his/her sole
discretion settle a claim for commission. In such case, the Employee will only
be entitled to a proportion of the commission calculated in accordance with the
percentages referred to in the annexure to this Employment Agreement.
6.5 In
accordance with the provisions of the Act, the Employee must disclose to the
Employer any intention to:
(a) purchase any
property listed by or through the Employer or any intention to become
beneficially interested in the purchase of any property listed by or through
the Employer; or
(b) sell any
property or list for sale with the Employer any property that the Employee owns
or is in any way beneficially interested.
7. TERMINATION
OF EMPLOYMENT
7.1 If the
Employee wishes to voluntarily terminate his/her employment (and this
Agreement), the Employee must give one week’s notice in writing to the
Employer. In the event that notice is not so given the Employee shall forfeit
the equivalent salary.
7.2 The Employer
may terminate this Agreement by giving the Employee the notice (or payment of
salary in lieu of notice) referred to in paragraph 7.3 depending on the
continuous duration of the Employee’s employment.
7.3
|
The Employee’s Period of Continuous Service
|
Minimum Period of Notice
|
|
Not more than 1 year
|
1 week
|
|
More than 1 year but less than 3 years
|
2 weeks
|
|
More than 3 years but less than 5 years
|
3 weeks
|
|
More than 5 years
|
4 weeks
|
If the Employee is 45 years of age or older and has been
employed by the Employer for at least two years, the Employee is entitled to an
additional one weeks’ notice (or payment of salary in lieu of notice).
7.4 Notwithstanding
the provisions of Clause 7.2 herein, the Employer may dismiss the Employee
without notice if the Employee is guilty of Misconduct of a type that would
make it unreasonable to require the Employee to continue his/her employment.
Misconduct includes dishonesty, gross neglect of duty (eg through drunkenness
or intoxication), wilful misrepresentation of qualifications or employment
history, conviction of a criminal offence which in the opinion of the Employer
affects the Employee’s suitability as an employee, gross misbehaviour which may
injure the Employer’s reputation or wilful disobedience of the Employer’s
lawful directions.
7.5 On
termination of his/her employment (for any reason), the Employee will
immediately deliver up to the Employer all property and information belonging
to the Employer, including, but without being limited to, past, current or
prospective customer or client lists, property listings, files, business
stationery, diary, manuals, unused business cards, legal documents, keys,
books, plans, maps, tape recordings, two-way radios, mobile telephones,
clothing and uniforms, credit cards, signs or marks in relation to any property
or transaction completed or in the process of completion, or listed with the
Employer at the date of termination of employment, and all other goods supplied
to the Employee by the Employer.
7.6 Termination
of the Employee’s employment will not limit the Employer’s right against the
Employee in respect of any breach of this Agreement by the Employee or any
claim for loss or damage arising in favour of the Employer or any corresponding
right which the Employee may have against the Employer for a breach of this
agreement.
8. DUTY OF
CONFIDENTIALITY
8.1 The Employee
shall at all times treat as and keep confidential all information that is the
property of the Employer that has not lawfully entered the public domain, which
includes but is not limited to the names and other information contained within
the Employer’s Database (as defined in clause 8.3), which the Employee may
become aware of during the course of his/her employment;
8.2 The Employee
shall not use or divulge any of the information referred to in clause 8.1
either during the period of employment or after employment ceases, other than:
(a) in the
ordinary course of his/her employment;
(b) with the
Employer’s prior written consent;
(c) for the
purpose of obtaining legal advice as to confidentiality; or
(d) by
compulsion of law.
8.3 In this
clause ‘Database’ includes but is not limited to:
(a) names, addresses
and phone numbers of sellers, buyers and prospective sellers and buyers or the
names addresses and phone numbers of any property owner on whose behalf a
property is managed by the Employer;
(b) financial
information;
(c) budgets; and
(d) Employer’s
contract information
9. VARIATION
OF TERMS
Any variation to this Certificate of Exemption shall not
cause termination of it unless specifically agreed to by the parties. Any such
variation shall remain in full force and effect, varied only to the extent of
the change. Any such variation agreed to by the parties, shall be registered in
accordance with the provisions of the award.
10. STATUTORY/AWARD
ENTITLEMENTS
The parties note that the minimum conditions of employment
are contained in the Award and
other conditions under state and federal law (e.g. Annual Leave, Long Service
Leave and Occupational Superannuation).
11. OTHER
PROVISIONS (insert as agreed)
.........................................................................................................
.........................................................................................................
.........................................................................................................
.........................................................................................................
12. REGISTRATION
OF THIS CERTIFICATE OF EXEMPTION
The Employee acknowledges that the execution of this
Certificate of Exemption and payment of the Employee’s registration fee, is a
condition of employment with the Employer. The payment of the employee’s
registration fee does not extend membership of the Real Estate Association of
NSW to the employee.
SIGNED
by................................................... SIGNED for and on behalf of .....................
Name
of Employee Name of
Organisation
................................................................... ...............................................................
Signature
of Employee Signature
of Employer
in the presence of : in
the presence of :
................................................................. ...............................................................
Signature
of Witness Signature
of Witness
............................................................... ...............................................................
Name
of Witness (Print) Name
of Witness (Print)
13. AUTHORITY TO
DEDUCT
I hereby authorise the Employer to deduct $50.00 from salary
payments owing to me. This amount is my registration fee for this Certificate
of Exemption and is payable to the Real Estate Association of NSW. This
authority is given pursuant to Section 118(2) of Part 10 of Chapter 2 of the
Industrial Relations Act 1996.
Signed............................................................
This...............day of................ 19.......
_________________________________________________________________________________
OFFICE USE ONLY :
Receipt No: .............................. Registration No:
........................
ERA.App:.............................. Registration
Date: .....................
PART D - SCHEDULE
3
EMPLOYEE’S TRAVEL
SCHEDULE
To be completed by the employee in order to be reimbursed in
accordance with Clause 31 of the Real Estate Industry (State) Award, for each
kilometre travelled in the course of employment.
Employer: (insert trading name) ..............................................................................
Employee: (insert
name) ..............................................................................
Pay period ending: (insert date) ..............................................................................
Car Odometer Reading Start: ..............................................................................
Car Odometer Reading Finish: .............................................................................
Car: Make & Model: .............................................................................
|
DATE
|
START LOCATION
|
DESTINATION
|
PURPOSE
|
TOTAL KMS
TRAVELLED
|
SIGNATURE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
TOTAL
|
|
|
THE EMPLOYEE SHALL PRESENT A COPY OF THIS SCHEDULE TO THE
EMPLOYER AT THE END OF THE NOMINATED PAY PERIOD.
Employer’s signature:
............................................................
Date Received: ............................................................
PART E - MONETARY RATES
Adult Basic Wage:
$121.40 per week
Table 1 - Rates of Pay
|
Full-time Employees
|
Former Wage Rate
|
June 2000
|
New
|
|
|
Per Week ($)
|
SWC
|
Wage Rate Per Week
|
|
|
|
Adjustment ($)
|
(ffpp 1/1/2001)
($)
|
|
Salesperson
|
420.10
|
15.00
|
435.10
|
|
Property Manager
|
459.50
|
15.00
|
474.50
|
|
Property Officer:
|
|
|
|
|
Grade 1
|
443.00
|
15.00
|
458.00
|
|
Grade 2
|
425.00
|
15.00
|
440.00
|
|
Grade 3
|
409.10
|
15.00
|
424.10
|
|
Licensee-in-Charge
|
509.00
|
15.00
|
524.00
|
|
Apprentices
|
|
|
|
|
- 1st year
|
208.60
|
6.45
|
215.05
|
|
- 2nd year
|
265.30
|
8.25
|
273.55
|
|
- 3rd year
|
303.30
|
9.40
|
312.70
|
Table 2 - Other Rates and
Allowances
|
Item No.
|
Clause
|
Brief Description
|
Amount ($)
|
|
1.
|
11(c)(i) & (ii) &
|
Employment Agreement - employer and
|
55.00 each, which
|
|
|
10(d)
|
employee registration fee
|
amount includes GST.
|
|
2.
|
31(b)(ii)
|
Use of own vehicle where vehicle is new to five
|
|
|
|
|
years of age:
|
|
|
|
|
engine capacity up to and including 1600cc
|
|
|
|
|
- standing charge
|
76.25 per week
|
|
|
|
- kilometre rate
|
0.12 per km
|
|
|
|
- lump sum by agreement
|
140.00 per week
|
|
|
|
engine capacity 1601cc up to and including
|
|
|
|
|
2600cc
|
|
|
|
|
- standing charge
|
104.50 per week
|
|
|
|
- kilometre rate
|
0.14 per km
|
|
|
|
- lump sum by agreement
|
180.00 per week
|
|
|
|
engine capacity over 2600cc
|
|
|
|
|
- standing charge
|
108.75 per week
|
|
|
|
- kilometre rate
|
0.16 per km
|
|
|
|
- lump sum by agreement
|
195.00 per week
|
|
3.
|
31(b)(iii)
|
Use of own vehicle where vehicle is six years of
|
|
|
|
|
age or older:
|
|
|
|
|
engine capacity up to and including1600cc
|
|
|
|
|
- standing charge
|
38.75 per week
|
|
|
|
- kilometre rate
|
0.12 per km
|
|
|
|
- lump sum by agreement
|
105.00 per week
|
|
|
|
engine capacity 1601cc up to and including
|
|
|
|
|
2600cc
|
|
|
|
|
- standing charge
|
58.00 per week
|
|
|
|
- kilometre rate
|
0.14 per km
|
|
|
|
- lump sum by agreement
|
135.00 per week
|
|
|
|
engine capacity over 2600cc
|
|
|
|
|
- standing charge
|
63.25 per week
|
|
|
|
- kilometre rate
|
0.18 per km
|
|
|
|
- lump sum by agreement
|
160.00 per week
|
|
4.
|
32
|
Telephone reimbursements
|
|
|
|
|
- annual rental
|
170.00
|
|
|
|
- weekly allowance
|
3.26
|
|
|
|
- lump sum
|
8.50
|
|
5.
|
37
|
Certificate of Exemption
|
55.00 each, which
|
|
|
|
- employer & employee
|
amount includes GST.
|
|
|
|
registration fee
|
|
R. J.
PATTERSON, Commissioner.
____________________
Printed by the authority of the Industrial Registrar.