30
[Extract from Queensland Government Industrial Gazette,
dated 23 December, 2005, Vol. 180, No. 21, pages 1186-1208]
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Industrial Relations Act 1999 – s. 125 – application for repeal and new award
Property Sales Association of Queensland, Union of Employees AND Queensland
Real Estate Industrial Organisation of Employers (A/2005/16)
PROPERTY SALES AWARD QUEENSLAND – STATE
COMMISSIONER FISHER 18 November 2005
REPEAL AND NEW AWARD
This matter coming on for hearing before the Commission at Brisbane on 18 November 2005, this Commission orders that the said Award be repealed and awards as follows as from 30 November 2005:
PROPERTY SALES AWARD QUEENSLAND – STATE 2005
PART 1 – APPLICATION AND OPERATION
1.1 Title
This Award is known as the Property Sales Award Queensland – State 2005.
1.2 Arrangement
Subject Matter Clause No.
PART 1 – APPLICATION AND OPERATION
Title 1.1
Arrangement 1.2
Preamble 1.3
Date of operation 1.4
Award coverage 1.5
Definitions 1.6
PART 2 – FLEXIBILITY
Enterprise bargaining 2.1
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
Settlement of disputes 3.1
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
Application of general provisions 4.1
Terms of engagement 4.2
Termination of employment 4.3
PART 5 – WAGES AND WAGE RELATED MATTERS
Superannuation 5.1
PART 6 – HOURS OF WORK, BREAKS, OVERTIME SHIFT WORK, WEEKEND WORK
Working time 6.1
PART 7 – LEAVE OF ABSENCE AND PUBLIC HOLIDAYS
Jury service 7.1
Long service leave 7.2
PART 8 – TRANSFERS, TRAVELLING AND WORKING AWAY FROM USUAL PLACE OF WORK
No provisions inserted in this Award relevant to this Part.
PART 9 – TRAINING AND RELATED MATTERS
Commitment to training and careers 9.1
Traineeship provisions 9.2
Hours of duty for Trainees 9.3
PART 10 – OCCUPATIONAL HEALTH AND SAFETY MATTERS, EQUIPMENT, TOOLS AND AMENITIES
No provisions inserted in this Award relevant to this Part.
PART 11 – AWARD COMPLIANCE AND UNION RELATED MATTERS
Right of entry 11.1
Time and wages record 11.2
Posting of Award 11.3
PART 12 – MINIMUM ENTITLEMENTS
Application 12.1
Wages 12.2
Leave, public holidays, etc. 12.3
PART 13 – COMMISSION
Application 13.1
Intent 13.2
Commission entitlements 13.3
PART 14 – PAYMENT OF WAGES, ALLOWANCES AND/OR COMMISSION
Application 14.1
Payment of wages and/or allowances 14.2
Payment of commission 14.3
PART 15 – PERSONAL, STAND-ALONE NO DISADVANTAGE TEST
Application, flexibility, intent, minimum income threshold, authorisation 15.1
Opting Out of Parts 12 and/or 14 15.2
PART 16 – MANDATORY REGISTERED EMPLOYMENT AGREEMENTS
Preamble, intent 16.1
Minimum requirements 16.2
Minimum conditions 16.3
Amendments 16.4
PART 17 – PROCESS
Application 17.1
Registering an agreement and/or opting out 17.2
Agreement re-registration, renewal of approval to Opt Out 17.3
Registering amended terms of employment 17.4
Operative dates 17.5
Investigation, alteration 17.6
Application and/or registration fees 17.7
Additional employer responsibilities 17.8
Notification of registrations and approvals 17.9
Review of decisions 17.10
Record keeping 17.11
Copies of completed applications to industrial registry 17.12
PART 18 – STATUS OF REGISTERED AGREEMENTS
Generally 18.1
Existing registered agreements 18.2
Transmission of business 18.3
Termination of employment 18.4
PART 19 – THE QPIR’S DISCRETIONARY POWERS, ETC.
Discretionary powers 19.1
Authority 19.2
Responsibilities 19.3
PART 20 – NON-COMPLIANCE
Employer’s failure to comply 20.1
SCHEDULES
Schedule 1 Application to Register Agreement and/or Opt Out
Schedule 2 Application to Register Amended Terms of Employment
1.3 Preamble
1.3.1 Minimum entitlements
(a) All employees are entitled to receive:
(i) wages;
(ii) paid leave (annual, sick, bereavement);
(iii) public holidays.
(b) The above entitlements may be negotiated away in some circumstances, but only within the terms of Stage 2 Employment.
(c) Employees are also entitled to receive:
(i) occupational superannuation;
(ii) long service leave.
1.3.2 Employment Agreements
All employees must have:
(a) a written employment agreement (Agreement); and
(b) such agreement registered with the Queensland Property Industry Registry, as set out in Parts 16 and 17.
1.4 Date of operation
This Award takes effect from 30 November 2005.
1.5 Award coverage
1.5.1 Application
(a) This Award applies throughout the State of Queensland to employees principally engaged in the listing, sale, auction, tender, purchase and/or leasing of real property and to their employers.
(b) This Award does not apply to any employee:
(i) who occupies a management position with the employer; and
(ii) whose primary duties do not involve the listing, sale, auction, tender, purchase and/or leasing of real property; and
(iii) whose remuneration, not including anything other than salary and/or commission entitlements, is at or above the rate prescribed under Section 4 of Part 2 of the Industrial Relations Regulation 2000 as adjusted from time to time.
1.5.2 The industrial organisations party to this Award, recognising the unique nature of the Real Estate Industry, have agreed upon conditions of employment contained in this Award that are best suited to the needs of employees and employers and reflect the non-standard nature of work in the industry.
1.5.3 The parties to this Award have also agreed to confer on at least an annual basis for the purpose of reviewing the practical effects of the implementation of this Award and to take any agreed steps to ensure its efficient operation.
1.5.4 This Award excludes any person employed principally as a clerk or for secretarial support.
1.6 Definitions
1.6.1 “Act” means the Industrial Relations Act 1999 as amended or replaced from time to time.
1.6.2 “Casual Employee” means an employee who is engaged and paid by the day, and for less than 4 days per week averaged over a 4 weekly cycle (i.e. 15 days or fewer in 28).
1.6.3 “Commission” is a payment and/or any reward system that is linked to performance and/or results. This includes regular bonus and/or incentive payments that are linked to performance and/or results, but does not include ex gratia payments.
1.6.4 “Commission-Offset” means that an employee who is paid wages and/or leave entitlements may also be entitled to commission, against which wages and/or leave entitlements may be offset by the employer, in accordance with this Award.
The employee shall be entitled to be paid any commission credit that is surplus to wages and/or leave entitlements paid to the employee.
1.6.5 “Commission-Only” means that an employee is remunerated on the basis only of a proportion of the sales commission received by the employer as a result of the employee’s activity, and that the employee is not entitled to Award wages, paid annual leave, paid sick leave, paid bereavement leave, family leave, or to any additional payment for working on public holidays, unless otherwise agreed in writing between the parties.
1.6.6 “Debit/Credit” has the same meaning as Commission Offset.
1.6.7 “Employee” for the purpose of this Award, in addition to any Common Law definition or any definition prescribed by the Act and any amendment thereto, means any of the following:
Any person who, under the Property Agents and Motor Dealers Act 2000:
(a) is, or is required to be, an employee of a real estate agent or a property developer; and/or
(b) is, or is required to be, a registered real estate salesperson; and/or
(c) is, or is required to be, a registered property developer salesperson; and/or
(d) holds, or is required to hold, a real estate agent’s licence (as an employed licensee or otherwise) and who is not the principal licensee.
1.6.8 “Full-time Employee” means a permanent employee who works on 4, 5 or 6 days per week averaged over a 4 weekly cycle (i.e. between 16 and 24 days – both inclusive – in 28).
1.6.9 “Industrial Commission” means the Queensland Industrial Relations Commission.
1.6.10 “Legally-enforceable Contract of Sale” means a Contract of Sale that is signed by both Buyer and Seller.
1.6.11 “Part-time Employee” means a permanent employee who works less than 4 days per week averaged over a 4 weekly cycle (i.e. 15 days or fewer in 28).
1.6.12 “QPIR” means the Queensland Property Industry Registry, which is administered by the PSAQ and REEA.
1.6.13 “Property Sales Trainee” and “Traineeships” bears the meaning as provided within clause 9.2.
1.6.14 “Property Sales Person” means an employee engaged in the sale of real property.
1.6.15 “Property Sales Person (Advanced)” means an employee engaged in the sale of real property and whose duties, experience and level of achievement meet the following standards:
(a) at least 4 years’ experience in the industry; and/or
(b) a concentration on specialised areas of operation acknowledged within the industry as requiring particular skills and competencies.
1.6.16 “PSAQ” and “Union” means the Property Sales Association of Queensland, Union of Employees, its successors or assigns.
1.6.17 “REEA” means the Queensland Real Estate Industrial Organisation of Employers (trading as the Real Estate Employers’ Association), its successors or assigns.
1.6.18 “REIQ” means the Real Estate Institute of Queensland Ltd.
1.6.19 “Sale of real property” means the duties carried out by an employee whose principal responsibilities include, but are not limited to the listing, sale, auction, tender, purchase and/or leasing of real property, however it excludes any person employed principally as a clerk or for secretarial support.
1.6.20 “Stage 1 Employment” means those employment conditions covered by Parts 12 and 14 of this Award.
1.6.21 “Stage 2 Employment” means those employment conditions covered by Part 15 of this Award.
PART 2 – FLEXIBILITY
2.1 Enterprise bargaining
2.1.1 It is acknowledged that:
(a) flexible employment arrangements; and
(b) appropriate understanding and regulation of commission-based remuneration,
are the central, defining characteristics of the industrial relations needs of Queensland’s real estate industry, and that these priorities create some tension with the need for protection of employees via safety-net provisions, as prescribed by a traditional award.
2.1.2 The key to managing these competing priorities is:
(a) Co-operation between the representative organisations of employees and employers.
(b) A streamlined process to facilitate making and recording of individual employment arrangements.
(c) A centralised administrative system to support the above process, that is in itself:
(i) understanding of the unique needs of the industry;
(ii) prompt in its responses; and
(iii) both capable of being, and authorised to be, flexible in its internal processes.
2.1.3 Accordingly, both the PSAQ and REEA undertake to positively co-operate with employers and their employees who wish to establish:
(a) Written Employment Agreement/s in accordance with the provisions of this Award.
(b) A Certified Agreement under this Award, in accordance with the provisions of Chapter 6 of Part 1 of the Act.
PART 3 – COMMUNICATION, CONSULTATION AND DISPUTE RESOLUTION
3.1 Settlement of disputes
3.1.1 In the event that any dispute between the employer and employee is unable to be resolved the following procedure shall apply:
(a) the parties shall refer the matter to representatives of the respective industrial organisations who shall attempt to assist in a resolution by conciliation;
(b) should such conciliation fail, the matter shall be pursued in accordance with the provisions of the Act and any amendment thereto. A decision made in accordance with the Act will be binding on the parties.
3.1.2 Unless a bona fide safety issue is involved, work shall proceed as normal while any of the foregoing procedures is being followed and such continuation of work shall not prejudice the final settlement of the matter.
3.1.3 For the purpose of clause 3.1.1(a), contact details for the Registered Office (as amended from time to time) of the parties to this Award shall be included in this Award:
(a) PSAQ – Phone (07) 3841 6977; Fax (07) 3841 3799.
(b) REEA – Phone (07) 3376 1397; Fax (07) 3715 8902.
PART 4 – EMPLOYER AND EMPLOYEES’ DUTIES, EMPLOYMENT RELATIONSHIP AND RELATED ARRANGEMENTS
4.1 Application of general provisions
Parts 1 to 11 and Part 13 of the Award shall apply to all employees and their employers irrespective of whether other conditions of employment are covered by Stage 1 Employment or Stage 2 Employment.
4.2 Terms of engagement
4.2.1 At the point of engagement the employer shall stipulate in a written employment agreement whether the employee:
(a) is full-time, part-time or casual; and
(b) is either a Property Sales Trainee, a Property Sales Person or a Property Sales Person (Advanced).
Provided that, other than for a Property Sales Trainee, if at the point of engagement the employer fails to stipulate the employee’s Award classification in a written employment agreement, the employee is deemed to be classified at least as a Property Sales Person.
4.2.2 Probationary periods
(a) For a Property Sales Trainee, the probationary period shall be as determined under the Vocational Education, Training and Employment Act 2000.
(b) For all other classifications the probationary period is the first 3 months’ employment with the employer, however a shorter, or longer, or no probationary period may be agreed in writing between the employee and employer before employment starts.
(c) A period of probation that is longer than 3 months must be a reasonable period having regard to the nature and circumstances of employment.
(d) During any probationary period both parties will review the work performance to ascertain the employee’s suitability to the employer’s business. Within any probationary period the employer shall provide training and assistance to the employee to aid in the employee’s assimilation into the job. This shall not affect the right of either party to terminate employment during the probationary period, in accordance with clause 4.3.
4.3 Termination of employment
4.3.1 Redundancy
In cases of redundancy the terms and conditions of the Statement of Policy of the Full Bench of the Industrial Commission dated 29 October 2003 and published in QGIG Vol. 174, Folio 908 shall apply under this Award. A copy of the above decision shall be displayed in the employer’s place of business so as to be easily read by employees.
Provided that, in the case of employees remunerated wholly or partially on the basis of commission, “ordinary time rate of pay” referred to in clause 12 of the Statement of Policy shall mean:
(a) For an employee with less than 5 years continuous service:
(i) the employee’s prescribed Award wage rate; or
(ii) the average weekly earnings calculated over the entire period of employment,
whichever is the higher.
(iii) Commission earnings paid subsequent to termination shall not be taken into account unless they were due and payable during the period of employment.
(b) For an employee with 5 years or greater continuous service:
(i) The average weekly earnings calculated over the 5 years of employment immediately preceding the termination date, except that the highest earnings year of employment and the lowest earnings year of employment in that period shall not be taken into account.
(ii) Commission earnings paid prior to, or subsequent to, the 5 year period shall not be taken into account unless they were due and payable during that period.
Further provided that, an employee under Stage 2 Employment and their employer may make a written agreement at any time for the employee to be paid at a specified rate, in addition to their ordinary time earnings, in lieu of payment for redundancy.
4.3.2 Property Sales Trainees shall only be terminated in accordance with the provisions of the Vocational Education, Training and Employment Act 2000.
4.3.3 In all other cases the following period of notice of termination of employment shall be given by either party, or the equivalent remuneration paid or forfeited in lieu thereof: