COMMISSION-ONLY CONTRACT OF EMPLOYMENT
Contract of Employment
Property Sales Representative/
Property Sales Supervisor
(Commission Only)
4
© CCIWA 2014
COMMISSION-ONLY CONTRACT OF EMPLOYMENT
1. OPERATION
1.1 This contract shall be binding upon the Agent and the Employee specified in Appendix A.
1.2 The contract will commence operation from the date specified in Appendix A, or in the case of a new employee, upon commencement of employment.
1.3 Any legislation (including the National Employment Standard), award, policy, procedure or other document referred to in this document is not incorporated into the contract and does not form part of it.
1.4 This contract forms the entire agreement between the employee and the Agent concerning the employee’s employment from the date of this document.
1.5 This contract may only be varied by written agreement between the employee and the Agent.
2. DEFINITIONS
2.1 For the purposes of this contract and unless the contrary appears, the following definitions shall apply:
a) “Agent” shall mean the Agent party to this contract and as defined in the Act.
b) “Award” shall mean the Real Estate Industry Award 2010
c) “GST” shall mean the Goods and Services Tax.
d) “Household” shall mean any other person who lives with the employee as a member of his/her family.
e) “Immediate family” shall mean:-
(i) the employee’s spouse, child, parent, grandparent, grandchild or sibling; or
(ii) a child, parent, grandparent, grandchild or sibling of the employee’s spouse
f) “NES” means the National Employment Standards as contained in sections 59 to 131 of the Fair Work Act 2009 (Cth)
g) “REIWA” shall mean the Real Estate Institute of Western Australia.
h) “Spouse” includes a former spouse, de facto spouse and former de facto spouse
i) “The Act” shall mean the Real Estate and Business Agents Act 1978 (WA).
3. CONTRACT OF SERVICE
Position
3.1 The employee shall be engaged in the position specified in Appendix A and shall be required to carry out any duties required by the Agent, provided that they are capable of performing them.
Basis of employment
3.2 The employee is engaged on either a full time or part time basis as specified in Appendix A.
3.3 Full time means that the employee is engaged on the basis of a 38 hour week.
3.4 Part time means that the employee is engaged to work less hours than a full time employee. The employee will accrue entitlements under this contract on a pro rata basis proportionate to the number of ordinary hours specified in Appendix A.
Probation (new employees only)
3.5 The employee shall be engaged by the Agent on a probationary term of three months, during which time the employee shall be required to demonstrate an adequate understanding of the Agent’s business and a level of competence required by the Agent to satisfactorily perform the full range of duties allocated to the employee.
3.6 The Agent may extend the probationary term by a further 3 months by giving the employee written notice including reasons for the extension and the expiry date of the probationary term
4. OBLIGATIONS
General Obligations of Employment
4.1 The Employee shall work in accordance with this contract, the Act, the REIWA Rules of Practice and Code of Ethics, the Code of Conduct for Agents and Sales Representatives, any policies of the Agent as amended from time to time, and any other laws or regulations applicable to the employer or the real estate industry.
4.2 The employee shall undertake:
a) to observe and perform all duties in a professional manner;
b) such duties in relation to the conduct of the Agent’s business as assigned from time to time;
c) to observe and comply with all reasonable and lawful directions from time to time given by the Agent;
d) to be available for such hours of work as may from time to time reasonably be required by the Agent.
4.3 The employee shall not without the consent of the Agent be engaged or interested in, either directly or indirectly in any capacity, in any trade, business or occupation which may interfere with the performance of his or her duties.
4.4 The employee shall not, except as authorised or required by his or her duties, destroy, copy or remove from the Agent’s office any document or record pertaining to the Agent’s business.
4.5 For the duration of the employment, and after the employment, the employee shall not disclose to any person or corporation other than the Agent or any person having lawful authority to require such disclosure, any professional secrets or confidential information of the Agent, including but not limited to:
a) documents or information marked as confidential;
b) information received or developed by the employee in the course of employment which is not publicly available and relates to the business, work or interest of the Agent;
c) written management policies and directions of the Agent;
d) specifications, discoveries (whether patentable or not);
e) copyright such as manuals, technical data, trade secrets;
f) financial information and details of suppliers;
g) computer software developed by the Agent; and
h) marketing information such as customer lists and distribution of customers within geographical locations, statistical documents which has come to the employee’s notice during the employment or as a result of the employment.
4.6 The employee shall provide details of “Vendor Paid Contributions” and other trust transactions when and as required by the Agent.
4.7 The employee shall not incur any cost on behalf of the Agent other than approved advertising costs or such other costs which have been approved by the Agent in writing.
4.8 The employee shall actively promote and recommend the services of the Agent’s preferred suppliers.
4.9 The employee is required to attend such in-house training sessions and sales meetings as required by the Agent.
4.10 The employee shall identify in every “Authority to Sell”, the agreed method of any advertising or marketing, the proportion, if any, sponsored by the Vendor and how that amount will be paid.
4.11 The employee is not authorised to enter into any commitment, make any purchase or grant any indemnity on behalf of the Agent without the written authorisation of the Agent.
Professional Obligations
4.12 The employee and the Agent shall have a good working knowledge of the Act, Regulations, REIWA Rules of Practice and Code of Ethics and the Code of Conduct for Agents and Sales Representatives as amended from time to time.
4.13 The Agent shall take all reasonable steps to keep the employee informed of changes to any Act with which the employee is required to be familiar.
4.14 It is a condition of employment that the employee shall at his or her own expense maintain a current registration as a Sales Representative with the Department of Commerce or any other such relevant authority as required by any applicable law and at the request of the Agent from time to time produce appropriate documentary proof of such registration. Should the employee no longer be in possession of such registration at any time for any reason whatsoever, the employee is to immediately notify the Agent in writing.
4.15 In the event that the Agent should incur a penalty, fine, or both, imposed pursuant to the provisions of the REIWA Rules and Practice and Code of Ethics and the Act, or the Code of Conduct for Agents and Sales Representatives, as a result of some wrongful act or default of the employee, unless such costs are fully covered by the Agent’s Professional Indemnity Insurance Policy:
a) the employee shall pay to the Agent the full amount of such penalty and/or fee; and/ or
b) the employee authorises the Agent to deduct from any commission payment owing to the employee the full amount of such penalty;
5. REMUNERATION
Commission
5.1 The agent and the employee agree that the employee will be remunerated on a commission-only basis in accordance with the Award.
5.2 The employee shall be entitled to commission from the Agent in respect of each completed sale transaction for which the Agent has itself received commission, and for which the employee is the effective cause, subject to supporting the claim with a copy of a valid “Authority to sell” in respect of the transaction.
5.3 Subject to this clause the amount of commission to which the employee shall be entitled, shall be calculated as follows:-
a) One employee responsible for listing and selling a property will be entitled a percentage of the Agent’s net commission for the completed sales transaction as specified in Appendix A.
b) Two employees responsible for selling a property will be entitled to a percentage of the Agent’s net commission for the completed sales transaction as specified in Appendix A, or as varied in writing for a specific sale.
5.4 Any debit balance in the employee’s incentive commission calculation at the end of any pay period shall be carried forward to the next pay period, provided that the employee always receives at least the minimum of 35% of the Agent’s net commission for each and every completed sales transaction.
5.5 The Agent shall, within 14 days of the entitlement becoming payable, provided that the employee’s entitlement to commission only becomes payable once the Agent has received cleared funds from its client for the transaction to which the employee’s entitlement relates, pay to the employee any incentive commission owed, as calculated in accordance with this clause for that pay period.
5.6 The percentage of gross commission specified in Appendix A may be varied in writing by mutual agreement between the Agent and employee.
Deductions
5.7 The Agent may deduct from the employee’s commission any amount that it is authorised or required to deduct including any overpayment of remuneration.
Superannuation
5.8 Superannuation contributions shall be paid by the Agent into a fund nominated by the employee in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth), provided that where the employee does not nominate a fund, into a fund nominated by the Agent.
The Agent may make the superannuation contributions to one of the following superannuation funds or its successor:
a) REI Super;
b) Asset Super;
c) Tasplan;
d) AustralianSuper; or
e) Any superannuation fund to which the Agent was making superannuation contributions for the benefit of its employees before 12 September 2008, provided the superannuation fund is an eligible choice fund.
6. MOTOR VEHICLE AND MOBILE PHONE
Motor Vehicle
6.1 It is a condition of employment that the employee shall maintain at his or her own expense a current driving license and at the request of the Agent from time to time produce appropriate documentary proof of such license. Should the employee no longer be in possession of such license at any time for any reason whatsoever, the employee is to immediately notify the Agent in writing.
6.2 The employee shall provide and maintain his or her own motor vehicle which shall be insured for business purposes and licensed for business use at all times.
6.3 Where the Agent is required to pay the employee a motor vehicle allowance in accordance with the Award the employee agrees to authorise the Agent to deduct the cost of the allowance in the calculation of any commissions payable to the employee in accordance with Appendix A.
Mobile Phone
6.4 The employee is required to provide and maintain a mobile telephone for work purposes.
6.5 The Agent will pay the employee the amount specified in Appendix A as reasonable reimbursement for the cost of the use of the employee’s mobile telephone for work purposes.
6.6 Should the employee require the use of a telephone in excess of this specified amount the employee is directed by the Agent to use one of the Agent’s telephones located at the office of the Agent for any work related purpose.
6.7 Should the employee incur costs in excess of the allowance paid, then the Agent will not be responsible for any further reimbursement to the employee.
6.8 The employee agrees to authorise the Agent to deduct the amount referred to in subclause 6.5 in the calculation of any commissions payable to the employee in accordance with Schedule A.
7. HOURS
Ordinary Hours
7.1 The employee is contracted to work:
a) in the case of a full time employee, 38 hours per week.
b) in the case of a part time employee, the hours specified in Appendix A
7.2 These contracted hours of work will be averaged over an eight week period.
7.3 The employee may be required to work reasonable additional hours in excess of those specified in sub-clause 7.1 in order to successfully perform the employee’s duties.
7.4 As the employee is remunerated on a commission only basis, the employee will not be paid an hourly rate based on the number of hours worked by the employee each week.
7.5 The employee’s contracted hours of work may be worked on any day, Monday to Sunday, and shall be worked as agreed between the employee and the Agent, to suit the operational requirements of the business.
7.6 The employee is entitled to 1.5 or two rostered days free of duty each week. Such rostered days off may be taken in one of the following ways:
a) One consecutive period;
b) Two periods; or
c) Three periods comprising one day and two half days.
7.7 It is the responsibility of the employee to ensure that the employee’s duties and responsibilities are organised in such a manner as to ensure that the employee has in fact taken these rostered days off in accordance with the Award and this contract.
7.8 The employee agrees to provide to the Agent weekly timesheets, indicating the employee’s start and finish times, breaks taken and the total of hours worked each day and for the week.
Breaks
7.9 The employee is entitled to an unpaid meal break of not less than 30 minutes duration whenever the employee works five consecutive hours or more. It is the responsibility of the employee to take this unpaid meal break at any reasonable time having consideration to the duties and responsibilities of the employee at the time.
8. LEAVE ENTITLEMENTS
Annual Leave
8.1 The employee is entitled to paid annual leave of 4 weeks each year which accrues progressively according to the employee’s ordinary hours of work in accordance with the NES.
8.2 A part-time employee is entitled to a proportion of the full-time entitlement according to the ordinary hours worked by the part-time employee.
8.3 Annual leave is paid at the employee’s base rate of pay as defined by the Award.
8.4 Annual leave shall be taken at a time mutually agreed between the parties.