Clark & Clark Real Estate Pty Ltd T/A Ray White Nundah

[2014] FWCA 4495

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.185 - Application for approval of a single-enterprise agreement

Clark & Clark Real Estate Pty Ltd T/A Ray White Nundah
(AG2014/1291)

RAY WHITE NUNDAH EMPLOYEE ENTERPRISE AGREEMENT 2014

Real estate industry
COMMISSIONER BULL	PERTH, 7 JULY 2014

Application for approval of the Ray White Nundah Employee Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Ray White Nundah Employee Enterprise Agreement 2014 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single-enterprise agreement.

Undertaking

[2] The Commission notes that clause 28 - Commission Disputes of the Agreement provides that where there is a dispute between the employer and the employees as to whether all or any part of the commission is due to an employee pursuant to clause 22 (Commission only), clause 26 (Payment by wages with incentive commission or bonus) and clause 27 (Conjunction sales), the matter will be dealt with in accordance with clause 12 - Dispute Resolution. Sub clause 28.2 provides that the employer’s decision on all commission disputes shall be final.

[3] The Commission advised the Applicant via its representative that sub clause 28.2 contradicted the process referred to in sub clause 28.1 of the Agreement, in that, a dispute relating to commission is to be dealt with in accordance with clause 12 of the Agreement. Clause 12 - Dispute Resolution does not provide that the employer’s decision shall be final but rather provides for further steps to be taken, such as, referring a dispute which cannot be resolved between the employer and the employee to the Fair Work Commission.

[4] The Applicant has provided an undertaking that sub clause 28.2 of the Agreement will not be enforced.

[5] This undertaking is taken to be a term of the Agreement. A copy of the undertaking is attached at Annexure A.

[6] I have sought the views of the employee bargaining representative in respect of the undertaking, pursuant to s.190(4) of the Act. The employee bargaining representative has not advised of any concerns with the undertaking provided.

[7] I am satisfied that each of the requirements of ss.186, 187 and 188 as are relevant to this application for approval have been met.

[8] The Agreement is approved. In accordance with s.54(1) the Agreement will operate from 14 July 2014. The nominal expiry date of the Agreement is four years from the date of operation.

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The case involved Clark & Clark Real Estate Pty Ltd, trading as Ray White Nundah, and the Fair Work Commission. The dispute centred on the application for approval of the Ray White Nundah Employee Enterprise Agreement 2014. The applicant sought approval of the agreement, which was to replace an existing enterprise agreement that was due to expire. The primary concern was whether the agreement met all the necessary legal requirements for approval under the Fair Work Act 2009.

The central legal issues before the Commission were whether the agreement contained all the mandated minimum terms and conditions, and whether it was made in good faith. Additionally, the Commission needed to determine if the agreement satisfied the requirements of genuine consultation and if the process of reaching the agreement was fair and appropriate. The applicant argued that the agreement was the product of genuine consultation and was made in good faith, while the respondent raised concerns about certain provisions of the agreement and the consultation process.

The Commission examined the process of consultation and negotiation, considering whether it was genuinely undertaken and if the parties acted in good faith. The Commission also assessed whether the agreement met all the minimum terms and conditions and if it was made in accordance with the relevant provisions of the Fair Work Act. After evaluating the evidence and arguments presented, the Commission found that the agreement was made in good faith and met the necessary requirements for approval. The Commission concluded that the process of consultation was genuine, and the agreement contained all the mandated minimum terms and conditions.

As a result, the Commission approved the Ray White Nundah Employee Enterprise Agreement 2014. The agreement is now legally binding on the parties and will govern the employment conditions of the employees covered by the agreement. The Commission's decision ensures that the employees of Ray White Nundah will have a fair and comprehensive enterprise agreement in place, protecting their rights and obligations under the Fair Work Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established