Ms Nichole Dowie v Brookwater Realty Pty Ltd

[2014] FWC 531

[2014] FWC 531

FAIR WORK COMMISSION

DECISION

Fair Work Act 2009
s.739 - Application to deal with a dispute

Ms Nichole Dowie
v
Brookwater Realty Pty Ltd
(C2013/5240)

Real estate industry
COMMISSIONER SPENCER	BRISBANE, 21 JANUARY 2014

Alleged dispute - real estate industry - commissions - application pursuant to s.587 to dismiss application.

[1] This decision relates to an application, made by Ms Nichole Dowie (the Applicant), pursuant to s.739 of the Fair Work Act 2009 (the Act). Section 739 of the Act provides for the Fair Work Commission (the Commission) to deal with a dispute in accordance with a dispute settlement procedure (the Substantive Application). The Applicant relied upon the dispute settlement procedure in the Real Estate Industry Award 2010 1 (the Award), in referring the dispute to the Commission. The Applicant also relies upon an “REIQ Employment Agreement” (the REIQ Agreement), that is registered with the Queensland Property Industry Registry (QPIR).

[2] On 12 November 2013, Brookwater Realty Pty Ltd (the Respondent) filed a Form F1 application, pursuant to s.587 of the Act (the Dismissal Application). The Respondent sought that the Commission exercise its powers pursuant ss.587(1)(a), (b) and (c) of the Act, to dismiss the application. The Respondent submitted that the application has not been made in accordance with the Act, 2 is frivolous or vexatious3 or has no reasonable prospects of success.4 This decision deals with the Dismissal Application.

[3] The Applicant was represented by Mr J Fuhrman-Luck, Advocate. The Respondent was, at the time of the Dismissal Application, represented by Ms H Cray, Partner of Clayton Utz.

[4] Whilst not all of the submissions and evidence in this matter are referred to, all of such have been considered.

Background

[5] Given the nature of the application it is necessary to set out the history and background of the Substantive Application.

[6] The Applicant is employed by the Respondent in the position of Sales Consultant. In this position, the terms and conditions of employment, of the Applicant, are governed by the REIQ Agreement. The Respondent is also covered by the Award. The Award applies to the Applicant’s employment.

[7] In or about July 2012 the Respondent commenced a process of performance management of the Applicant. The details of that performance management process are not presently relevant. However, from Tuesday, 1 August 2012 the Applicant has been absent from her employment.

[8] The Respondent stated, and the Applicant did not dispute, that those absences occurred as follows:

“(a) 1 August 2012 to 18 August 2012, taken as sick leave;

(b) 1 September 2012 to 14 December 2012, taken as annual leave approved by the Respondent prior to the performance management process commencing in July 2012; and

(c) 15 December 2012 to the present, as sick leave.” 5

[9] On 10 September 2012 the Applicant requested, from the Respondent, a “statement of sales commission pending”. The Respondent provided to the Applicant a “Commission Payments Summary”, relating specifically to the Applicant, for the period of 1 July 2012 to 28 September 2012. 6 Further information relating to commissions owed was provided to the Applicant, by the Respondent, on 9 October 2012.7

[10] At the time the Respondent filed the response to the application, 31 July 2013, the Respondent conceded that some commission was outstanding to the Applicant, but that that commission only related to one lot, which had not yet reached settlement. 8

[11] The Applicant filed a complaint to the Fair Work Ombudsman (the Ombudsman) on 21 February 2013. The Respondent submitted that the complaint to the Ombudsman, also included complaints regarding requests for particulars of commission, allegedly owed, pursuant to the terms of the REIQ Agreement.

[12] The Respondent submitted that the Ombudsman was provided, by the Respondent, with the background material (also filed in this matter) but that the Ombudsman did not require any further particulars to be provided. No evidence of this was provided by the Respondent. The Respondent stated that the Ombudsman did not finally determine the complaint. The Respondent submitted that it was advised, by the Ombudsman, that the Applicant withdrew her complaint to the Ombudsman, on 6 May 2013.

[13] The Applicant applied to the Commission by way of the Substantive Application, the subject of this dismissal application.

Relevant legislation and clauses

[14] The dispute was brought pursuant to s.739 of the Act. Section 739 provides:

“739 Disputes dealt with by the FWC

(1) This section applies if a term referred to in section 738 requires or allows the FWC to deal with a dispute.

...

(3) In dealing with a dispute, the FWC must not exercise any powers limited by the term.

(4) If, in accordance with the term, the parties have agreed that the FWC may arbitrate (however described) the dispute, the FWC may do so.

...

(5) Despite subsection (4), the FWC must not make a decision that is inconsistent with this Act, or a fair work instrument that applies to the parties.

...”

[15] Section 738 provides:

“738 Application of this Division

This Division applies if:

(a) a modern award includes a term that provides a procedure for dealing with disputes, including a term in accordance with section 146; or

...

(c) a contract of employment or other written agreement includes a term that provides a procedure for dealing with disputes between the employer and the employee, to the extent that the dispute is about any matters in relation to the National Employment Standards or a safety net contractual entitlement; or

...”

[16] The dismissal application has been made pursuant to s.587 of the Act, which states:

“587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

...

(3) The FWC may dismiss an application:

(a) on its own initiative; or

(b) on application.”

[17] The REIQ Agreement stated, at clause 8.2:

“8.2 If the Employee is remunerated in part or in whole by Commission, the Commission will become due and owing to the Employee only if:

(a) all aspects of the relevant transaction are completed by the Employee; and

(b) all payments in respect of the completed transaction have been unconditionally paid to the Employer (the Respondent) and the Employer has received cleared funds from its client for the transaction.”

The Substantive Application

[18] By way of the Substantive Application, the Applicant alleged that the dispute related to “[T]he entitlement of the Applicant to commission on expressions of interest and contracts involving leads of the Applicant whilst the Applicant was absent on leave from 01 August 2012”. 9

[19] As to the relief sought, the Substantive Application stated:

“1. That the Respondent provide to the Applicant within 7 days, full particulars of all properties that progressed to expressions of interest or contract since the Applicant went on leave on 01 August2012; (sic)

2. That the Respondent provide to the Applicant within 7 days, particulars of all of the Applicant’s leads at the time the Applicant went on leave on 01 August 2012;

3. That the Respondent pay to the Applicant commission on the sale of all properties involving any of the Applicant’s leads, that progressed to expressions of interest or contract since the Applicant went on leave on 01 August2012; (sic)

4. Commission rates to be in accordance with the variation letter of 6 May 2012 by Robert Sharpless to QPIR;

5. Payment of such commission to be made within 3 days.”

[20] The Substantive Application, in response to item 3 “Clauses to which the dispute relates”, stated “[C]lause 8; reference Schedule; and Special Conditions”. The Substantive Application does not specify of what industrial instrument those clauses relate. However, it is understood that this reference is to the terms of the REIQ Agreement because clause 8 of the Award relates to consultation regarding major workplace change, and the Award does not have a “reference Schedule” or “Special Conditions”.

Procedural history and summary of submissions in the Substantive Application

[21] The matter was listed for conference before the Commission on 1 August 2013.

[22] Following the conference of 1 August 2013 Directions were issued by the Commission directing the Applicant to provide further material, upon which the Applicant sought to rely at Conference but had not filed in the substantive application, and to specify how such material was relied upon in the Substantive Application. The Respondent was directed to respond to those matters.

[23] On 2 August 2013 the Applicant filed “preliminary submissions”. The Applicant stated in those submissions, that the REIQ Contract was varied by way of letters dated 3 April 2012 and 9 May 2012.

[24] Relevantly to this dispute, the letter of 6 May 2012 is a letter on the Respondent’s letter head to QPIR and stated:

“This letter is to confirm a variation to the commission structure on Nichole Dowie’s existing registered REIQ agreement with Brookwater Realty.

The existing registered REIQ agreement states that Nichole will be paid ‘1% commission on the sale price where the employee sells land owned by Springfield Land Corp No. 2. 1% commission on the sale price of new built homes in Mirvac ‘Fairways” sold by the employee where the employer has a signed PAMD 22a Agreement. 0.5% commission on the sale price where the employee sells land that is listed with the employer on a PAMD 22a Agreement.’

However, Nichole’s commission structure was amended on Tuesday 3 April 2012 to the following;

‘1% commission on the sale price where the employee sells land owned by Springfield Land Corp No. 2. 1% Commission on the sale price of new built homes in Mirvac “Fairways” sold by the employee where the employer has a signed PAMD 22a Agreement. 1% commission on the sale price where the employee sells a home or vacant land listed with the employer on a PAMD 22A (sic) Agreement.’”

[25] The letter of 9 May 2012 is a letter, from the Respondent to the Applicant, which is stated to be further to the Respondent’s letter “dated 2 November 2011 regarding the management of the Sales Strategy Five Registered Lots”.

[26] In relation to the letter of 9 May 2012 the Applicant submitted that the correspondence arose as a result of the Respondent’s requirement that the Applicant work, without taking leave, in order to “keep up sales”. 10 The Respondent rejects this assertion. No specific evidence of such a requirement was placed before the Commission.

[27] The Applicant submitted that it was a term of the “Applicant’s contract” and the “policy” of the Respondent that “she and the sales persons and sales manager work as a team and look after each other’s leads when the other is absent on leave”. The Applicant, by way of the 2 August 2013 submissions, did not specify the basis upon which the Applicant relied upon the “contract” or the Respondent’s “policy”.

[28] The Applicant concedes that, because of the lengthy period of annual leave, which was agreed to between the parties, following the letter of 9 May 2012 (being a period of 15 September 2012 to 15 December 2012), “obviously the Applicant could not attend to all aspects of a transaction”. 11

[29] The Applicant submitted that the Respondent had accepted that, at the time of commencing leave, the Applicant had 1089 leads. The Applicant stated that it was “inconceivable” that none of these leads eventually lead to expressions of interest, contracts or sale, and therefore accrued commissions. The Applicant submitted that the Respondent had conceded that it had paid commissions on “those sales” to other sales persons in the Applicant’s absence. The Applicant submitted that the Respondent cannot avoid its obligation to pay commissions “by creating a situation where the Applicant was frustrated by the Respondent from completing all aspects of a transaction”. This submission is presumably a reference to the excessive accruals of annual leave that the letter of 9 May 2012 referred to and the extensive period of leave taken by the Applicant between 15 September 2012 and 15 December 2012. It is again noted that no evidence of the alleged “requirement”, enforced by the Respondent, that the Applicant was unable to take leave prior to the extensive period.

[30] It is also noted that, while the Applicant refers to a large number of leads (some 1089 leads), the Applicant has not been able to particularise any single transaction which she believes gives rise to an entitlement in this matter, despite several opportunities to do so. However the Applicant emphasised her difficult in providing such detail, without access to the Respondent’s information.

[31] On 8 August 2013, the Respondent filed a response to the Applicant’s preliminary submissions.

[32] The Respondent submitted that the Applicant’s entitlement to the relief sought is “significantly in dispute” and that further the terms of the Substantive Applicant and the preliminary submissions do not support any such entitlement to the relief sought.

[33] The Respondent further submitted that it is unclear how the Applicant relies upon the letters of 6 May 2012 and 9 May 2012 to support any claimed entitlement - despite being directed to specify such.

[34] The Respondent submitted that a “lead” is a person that makes an enquiry about properties for sale and the development. A lead, so it was submitted, may be a person who has no genuine interest or financial ability to actually purchase a propert,y but is simply making an enquiry. Leads are converted to a sale by the Sales Consultant, a position held by the Applicant. The Applicant’s employment was not subject to an obligation to generate leads; this is reflected by the amendment to the REIQ contract at item 3.1(i)(1).

[35] In accordance with the Respondent’s policy, the Respondent allocates leads to sales consultants who then contacts the lead to attempt to progress the lead to an “expression of interest”, then progress to a signed contract. The Respondent submitted that most leads never progress beyond the lead stage and that further those leads that do progress to expressions of interest may terminate or progress to contracts that do not become “unconditional”. The Respondent submitted a document titled “Steps involved in land sales at Brookwater Realty Pty Ltd”. This document identifies some 26 steps in land sales. These 26 steps consistute, in the Respondent’s submission, “all aspects” of the transaction as contemplated by clause 8.2 (extracted below) of the REIQ Contract.

[36] The database managed by the Respondent, to organise and track “leads” is the property of the Respondent and subject to the Applicant’s contractual obligation of confidentiality, owed to the Respondent. The Respondent submitted the Respondent’s “Distribution of Leads Policy” and an email from the Respondent to the sales consultants attached the Policy, to which the Applicant was included. The Respondent submitted that it is “concerned”, that the Applicant has “misused” the confidential information in providing the “leads” to an external real estate agent.

[37] In relation to the REIQ Contract, the Respondent submitted that the letter of 9 May 2012 is not a variation to the Applicant’s terms and conditions of employment. This is plainly correct on reading the document. The letter of 9 May 2012 is a letter to the Applicant, from the Respondent, concerning her leave accruals, and containing a direction to the Applicant to utilise the excessive leave that she had accrued.

[38] The Respondent concedes that the terms and conditions of the Applicant’s employment are governed by the terms of the REIQ Contract, as amended by the letter of 6 May 2012.

[39] As to the entitlement to commissions the Respondent submitted that it has met its legal obligations in relation to the Applicant’s entitlements. The Respondent further stated that the Applicant has failed to articulate any basis on which she believes she is entitled to further commission payments. I take this to mean any basis other than the alleged “inconceivable” nature of the Applicant’s 1089 leads.

[40] The Respondent submitted that commissions are payable to the Applicant in accordance with clause 8.2 of the REIQ Contract (extracted below). Further the reference schedule (as amended) provides for “Commission (if any)”. The Respondent emphasised that that the Applicant is only entitled to commission, pursuant to clause 8.2 of the REIQ Contract, if “all aspects of the relevant transaction are completed by the Employee”. The Respondent further submitted that the entitlement to commission only accrues on “the completion” of the transactions (as outlined above at [20]). The Respondent submitted that neither of the conditions precedent to an entitlement to commission had been satisfied, in relation to the leads generally referred to by the Applicant.

[41] In response to the submissions of the Respondent of 8 August 2013, and the Directions of 1 August 2013, the Applicant responded, that the Applicant had not been provided with all information relevant to the alleged entitlements and sought, as follows:

“2. The Applicant requires the Respondent to provide her with:

[f]ull particulars of all properties that progressed to expressions of interest or contract since the Applicant went on leave on 01 August 2012; and

ii. Full particulars of all of the Applicant’s leads at the time the Applicant went on leave on 01 August 2012.”

[42] After a further request for better particulars from the Respondent, the Applicant’s representative, by email dated 20 August 2013, submitted the central basis of the Applicant’s claims as follows:

“The Respondent annexed a document to its Outline of Submissions, being annexure ‘E’ called ‘Leads and Distribution Policy’. That is not a document that was available to the Applicant and not a document that she has seen before. The Respondent correctly states at clause 23 of its Outline of Submissions that a lead remains with the allocated salesperson unless that salesperson has not been in contact directly with the lead for 6 months, whereupon the prospect will be regarded as a new lead and assigned to a new salesperson. The Respondent states at clause 48 of its Response to the Applicant’s Preliminary Submissions that at the time of the Applicant going on leave on 1 August 2012, there were 1097 leads allocated to the Applicant. It tries to dismiss 864 of those leads on the fallacious grounds that the Applicant had not updated them in her database. In any event, the Respondent admits to at least 233 of those leads being active leads of the Applicant. The penultimate paragraph of the Respondent’s letter of 9 May 2012 reads: ‘The terms of your original Contract will continue to apply, with the above changes, effective from the date of this letter.’ In the fourth last paragraph of that letter it is stated that ‘The Sales Manager will manage these negotiations in your absence. Upon return from leave, you will pick-up the negotiations with any of your current clients.’ This is ratified in the third paragraph of the Respondent’s letter of 2 August 2012, which reads: ‘During your period of Sick Leave, namely 1 August 2012 to 18 August 2012, all Brookwater Realty Pty Ltd (the Company) business transactions and leads that you have been undertaking are to be directed to Mr Terry Honan, Executive General Manager (Brookwater) for follow-up and management on your behalf.’ It is clear that the Applicant’s contract provides that in her absence on Leave (Annual Leave and Sick Leave), the Sales Manager and the Executive General Manager are to manage the Applicant’s transactions and leads on her behalf in her absence on leave. It is deceptive and misleading conduct by the Respondent to make those representations to the Applicant around her taking leave if the Respondent did not intend to be bound by them. Furthermore, it was the Respondent that created the extensive amount of accrued annual leave. On a number of occasions the Applicant applied to take leave but was not granted leave because the Respondent had spent money on marketing and advertising campaigns and wanted the Applicant at work or there was a new release of land or they were short staffed due to salespersons being terminated and resigning or they required her to work over the Christmas/New Year period. The Respondent can not refuse to pay the Applicant commission on sales that were made to the Applicant’s leads on the grounds that the Applicant ‘was not able to complete all aspects of the relevant transaction’, because the Sales Manager and the Executive General Manager stepped into the Applicant’s shoes whilst she was on leave and undertook responsibility on the Applicant’s behalf to do that. If they did not, then they have breached their duty to the Applicant. And even if the Respondent’s position was to be accepted (which is denied), the Respondent frustrated the Applicant’s performance of her side of the bargain (contract) by denying her annual leave and allowing such a large amount of annual leave to accrue. Either way, the Applicant is entitled to commission on sales that have been made to her leads and on sales that will eventuate from expressions of interest or contracts between the Respondent and the Applicant’s leads. Furthermore, as previously submitted, the Applicant’s contract (reinforced by management comments) provides that each sales person is to work as part of a team and ‘assist other members of the Sales Team as required.’ The Sales Manager and the Executive General Manager are part of the Sales Team and have a duty to the Applicant to assist her as required. The Respondent is the only party who has particulars of the transactions. It can not merely dismiss the Applicant’s lawful entitlement to commission on the transactions by broadly stating the Applicant has been paid all commission due to her. The Respondent’ latest submission that ‘no sales consultant is entitled to access all expressions of interest or contract of another sales consultant’ is not true. Throughout her employment by the Respondent, the Applicant and each other salesperson had free and open access to all sales transactions, both in hard form in filing cabinets and via the intranet. The Applicant has not had such access, since she went on leave. The Applicant has no means of knowing what transactions have been made between the Respondent and her leads whilst she had been absent on leave. To me, it is a simple exercise: 1. The Respondent provides the Applicant with the names etc of each of her 1097 leads; 2. The Respondent provides the Applicant with the names etc of all transactions that it has entered into since 1 August 2012; 3. The Respondent pays the Applicant commission on all sales that resulted/result from any transactions made with the Applicant’s leads....” (original formatting)

[43] Following further correspondence between the parties, and the Commission, the matter was further listed for a Conference at which further Directions were issued to the Applicant to particularise the nature of the claim.

[44] The Applicant filed further submissions on 26 September 2013.

[45] The Applicant affirmed her submission that there is “due and owing to her Commission (sic) on transactions made, since the Applicant went on leave on 01 August 2012, that involve any of her leads”. The Applicant stated that because she has been on leave on 1 August 2012, and has not returned, she does not have any particulars of the transactions.

[46] The Applicant responded to the submission of the Respondent that she has not completed “all aspects of the relevant transaction” as follows:

“The Applicant did complete ‘all aspects of the relevant transaction’ because the Sales Manager and the Executive General Manager agreed to do that on her behalf in her absence (see letters of 9 May 2012 and 2 August 2012 and evidence of meetings leading up to the letter of 9 May 2012 and see contract of employment where they all had to work as a team and assist each other); or, in the alternative:

If the Respondent failed to do what it said it would do in those meetings and letters, then the Respondent has breached its duty to the Applicant and/or been guilty of misleading or deceptive conduct under the Competition and Consumer Act 2010; or, in the alternative:

The Respondent, by its conduct in requiring and allowing the Applicant to accrue such an extended period of annual leave and then requiring the Applicant to take such an extended period of annual leave, is estopped from relying on a defence that the Applicant has not completed all aspects of the relevant transaction because the Respondent created a situation where that was not physically possible due to the Applicant’s long absence on leave; or, in the alternative:

The Respondent has discriminated against the Applicant as it has a policy and history of paying commissions to other sales persons when they were on leave and did not physically complete all aspects of the relevant transaction.”

[47] In so far as the Applicant places reliance upon the Competition and Consumer Act 2010, estoppel, or grounds of discrimination (without specifying any basis for such under the Act), they are outside the jurisdiction of the Commission.

[48] And further, the Applicant submitted:

“The Applicant’s earnings record shows regular and consistent commission earnings (save for an extraordinary year in 2011/2012) of an average of in excess of $84,000 per annum.

It is inconceivable that the Applicant would not have earned at least average commissions in the period of extended leave.”

[49] The Respondent, on 10 October 2013, provided a further response. The Respondent confirmed and pressed previous submissions in relation to the matter.

[50] On 25 October 2013, the Applicant provided a reply to the submissions of 10 October 2013.

[51] Relevantly the Applicant submitted that there had been previous instances of the Sales manager completing the signing of contract on behalf of sales consultants. In these circumstances the Applicant submitted that the commission was still paid to the relevant sales consultant. The Respondent countered this submission stating that it does not acknowledge that even if these instances are accepted (of which there is no evidence), there is a difference between having a Manager complete a single step in the otherwise lengthy process of converting a lead to a sale, in comparison to the present circumstances of this matter of the Applicant having completed no, or very limited steps, in the process.

[52] On 12 November 2013 the present application to dismiss the matter, pursuant to s.587 of the Act was filed.

The Dismissal Application

[53] The Dismissal Application reasserts the previous submissions made by the Respondent.

[54] Specifically, the Respondent submitted that the Applicant has “continually” failed to articulate any entitlement in contract, or in law, to commissions on any transaction after 1 August 2012.

[55] The Respondent submitted that the Substantive Application has not been made “in accordance with the Act” in that the Applicant has failed to properly articulate her case and attempts to do so by the Applicant having incorporated allegations outside of the Commission’s jurisdiction.

[56] Further, the Respondent submitted that the application was frivolous, vexatious and had no reasonable prospect of success. In this regard the Respondent submitted that the relief sought was without any proper legal basis and was a request for the provision of a “broad section of confidential business information” without demonstrating a connection with her employment. This “broad” request was submitted to be a fishing expedition by the Applicant, as she has not demonstrated any specific transaction to which she believes she is entitled to commission.

The Respondent relied upon the case authority of Applicant v Respondent 12where Deputy President McCarthy stated, in endorsing the approach taken by the Federal Court in relation to s.31A of the Federal Court Act:

“[12] I consider that there are three separate tests with different types of considerations and approaches needed by the provisions of s.587 of the FW Act.
[13] Section 587(1)(a) provides for a matter to be dismissed if the application has not been made in accordance with the FW Act. That is not a matter in contention here as to how it should be applied.
[14] Section 587(1)(b) provides for matters that may be dismissed where the application is frivolous or vexatious. It is here that in my view the approach to be applied involves dismissing matters where the application is “so obviously untenable that it cannot possibly succeed”; “manifestly groundless”; “so manifestly faulty that it does not admit of argument”;  “discloses a case which the Court is satisfied cannot succeed”;  “under no possibility can there be a good cause of action”. ⁶
[15] Section 587(1)(c) of the FW Act provides for a matter to be dismissed if the application has no reasonable prospects of success. The principles applied by the Federal Court for s.31A of the FC Act were summarised by Foster J in Wang v Anying Group Pty Ltd 7 (“Wang”) and again in Davis v Insolvency and Trustee Service Australia (No 3)8 as follows (references deleted):

(a) The moving party does not have to demonstrate that the defence is hopeless or unarguable;
(b) The Court must consider the pleadings and the evidence with a “critical eye” in order to see whether the Respondent party has evidence of sufficient quality and weight to be able to succeed at trial;
(c) The Respondent party is not obliged to present its whole case in order to defeat the summary judgment but must at least present a sufficient outline of the evidence in order to enable the Court to come to a preliminary view about the merits for the purpose of considering the statutory test in s 31A(1)(b)); and
(d) The test may require greater scrutiny of the pleadings and evidence in some cases than in others.  In my judgment, the words of s 31A(1) compel a flexible approach.  The real question in every case is not so much whether there is any issue that could arguably go to trial but rather whether there is any issue that should be permitted to go to trial.”

[57] The Respondent also relied upon the matter of Kennedy v Australian Taxation Office. 13

[58] The Applicant submitted that her application was made “in accordance with the Act”.

[59] The Applicant submitted that her claim relied upon clause 8.2 of the REIQ Contract and commissions arising under such clause and was consistent with the disputes procedure of the Award in respect of “underpayment of commissions”.

[60] The Applicant relied upon the matter of Brent Gorman v Australia Post 14 where the Full Bench, Boulton J, Hamilton DP and Raffaelli C stated:

“[10] For the power under s. 587(1)(b) to be exercised, it must be determined that the application before FWA is “frivolous or vexatious”. This would suggest that the application must demonstrably be of such little merit or pursued for such ulterior purposes or motives as would amount to an abuse of process.

[11] The meaning of the words “frivolous or vexatious” in the context of the Order 26, rule 18 of the High Court Rules was considered by Barwick C.J. in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125, at 129 as follows:

“The test to be applied has been variously expressed; "so obviously untenable that it cannot possibly succeed"; "manifestly groundless"; "so manifestly faulty that it does not admit of argument"; "discloses a case which the Court is satisfied cannot succeed"; "under no possibility can there be a good cause of action"; "be manifest that to allow them" (the pleadings) "to stand would involve useless expense".

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or "so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument"; "so to speak apparent at a glance".” (at 129)

[12] Although this passage and other cases to which we were referred (see Naqvi v MPB (SA) Pty Ltd (1981) 36 ALR 379, at 383 and Heidt v Chrysler Australia Ltd (1976) 13 ALR 365) relate to court proceedings, they provide an indication of the type and nature of an application that might be found to fall within the meaning of the words “frivolous or vexatious”. Those words convey an intention that the power to dismiss an application and to thereby deprive an applicant of the right to pursue an otherwise available cause of action should only be used in limited circumstances.”

[61] The Applicant submitted that the Substantive Application was tenable and had good prospects of success. The Applicant submitted that she should not be deprived of the right to pursue her application.

Conclusion

[62] In considering the Dismissal Application, the Commission may dismiss the application if it is satisfied that the application is not made in accordance with the Act (s.587(1)(a)); or the application is frivolous or vexatious (s.587(1)(b)); or has no reasonable prospects of success (s.587(1)(c)).

[63] If the Commission is satisfied on any of those three grounds then the application may be dismissed.

[64] The Respondent has placed little reliance on s.587(1)(a) of the Act and therefore it will not be considered further. The Respondent has not pointed to any specific requirement of the Act which it alleges has not been complied with.

[65] Similarly, the Respondent has placed little reliance upon s.587(1)(b) of the Act in that the Respondent has not identified any alleged ulterior motive in pursuing the Substantive Application or how it is said to be amount to an abuse of process. This aspect of the submission will not be considered further.

[66] The primary argument of the Respondent is in relation to s.587(1)(c) of the Act.

[67] The question becomes whether the Commission is satisfied that the application has “no reasonable prospects of success”. I apply the reasoning of McCarthy DP in Applicant v Respondent 15at [15] (extracted above).

[68] The underlying issue of the Substantive Application is that, even if the Commission was minded to grant the relief sought, specifically the provision of the information in relation to the some 1000 leads which may give rise to commission, the Applicant must also establish that clause 8.2 of the REIQ Contract has been varied such as to entitle her to such commission.

[69] Clause 8.2 of the REIQ Contract (as originally agreed between the parties) only entitles the Applicant to commissions where she has participated in “all aspects” of the relevant transaction, said to give rise to an entitlement to commission. The Applicant’s application proceeds on the basis that she accepts she has not worked since 1 August 2012; that the letter of 9 May 2012, varies clause 8.2 of the REIQ Contract such that others were completing transactions by-proxy for the Applicant; she cannot identify specific transactions, in which she has completed “all aspects” of the transaction; that any action taken by others “on her behalf” is taken to amount to her participation in “all aspects” of the transaction.

[70] On the material before the Commission there is no reasonable prospect in establishing that case.

[71] The letter of 9 May 2012, when considered as a whole, is not a variation of clause 8.2 of the REIQ Contract. In this regard clause 18 of the REIQ Contract is important. Clause 18 states:

“Variation

18.1 Any variation to the terms of this Agreement during the life of the Agreement is to:

(a) be in writing and signed by and lodged for registration with QPIR, if required by the Award;”

[72] Relevantly clause 17.1 of the Award provides:

“Written agreements generally

Once a written agreement has been made with respect to clause 15...or clause 16...any subsequent agreement to vary the employee’s commission, bonus or incentive payment arrangements must be evidenced in a further written agreement between the employer and the employee.

A signed copy of every written agreement regarding commission, bonus or incentive payment arrangements must be provided by the employer to the employee.”

[73] The letter of 9 May 2012 cannot reasonably be said to be an “agreement” for the purposes of clause 17.1 of the Award. The terms and context of the letter of 9 May 2012 do not amount to the amendment contended for by the Applicant. It also does not appear, on the face of the material, that the contents of the letter were particularly “agreed”. While the document does contain a section for an “employee acknowledgement of employment letter - dated 9 May 2012”, no execution of this document is before the Commission.

[74] Further the context and contents of the letter contain nothing to agree to and the letter makes no representation that she will remain entitled to commissions on those leads despite the those leads being managed by others “on her behalf”. The letter proceeds on the basis that the Applicant would return to work and retain those leads allocated to her. This did not occur.

[75] The Substantive Application amounts to a fishing expedition in relation to what the Applicant considers is an “inconceivable” situation that of 1089 leads, no lead continued to accrue commissions. This is in the context where the Applicant concedes that she has not completed “all aspects of the relevant transaction” as required by clause 8.2(a). The Applicant is no doubt frustrated that her ability to earn commissions was reduced for a period of some 3 months while she was directed to take leave. Indeed the Applicant’s response, dated 16 August 2013, where the Applicant “requires” “full particulars of all properties that progressed to expressions of interest or contract since the Applicant went on leave on 01 August 2012” is based on the fact that the Applicant does not know what transactions proceeded beyond the “lead” stage and assumes that some “leads” progressed after the Applicant went on leave (and has not returned to the workplace). This is clearly inconsistent with the entitlement to commissions under clause 8.2 of the REIQ Contract, as the Applicant cannot be said to have been involved in “all aspects” of the relevant transactions after this date.

[76] The alternative basis, upon which the Applicant relies, is that stated in her correspondence of 20 August 2013 (extracted above). This submission aims to proceed on the basis that the Applicant has not completed “all aspects” of the relevant transactions but that a contractual term exists that the Respondent’s representatives would manage the leads “on her behalf” and that any subsequent commission accruing from a sale would become payable to the Applicant as the lead was allocated to her. I cannot accept such submission. The letter of 9 May 2012 does state:

“The Sales Manager will manage these negotiations in your absence. Upon your return from leave, you will pick-up the negotiations with any of your current clients.” (emphasis added)

[77] It is my view that this paragraph is not a contractual term, entitling the Applicant to commissions on sales from leads on which she has played no part, or upon which she has completed only preliminary stages. It is clear that that paragraph proceeded on the basis that the Applicant would return to work and could resume managing and participating in “all aspects” of her leads. That has not happened. It is incongruous with the clear terms of the REIQ Contract that simply because the Applicant has been on extended leave she becomes entitled to commissions on all leads allocated to her regardless of whether she has participated in “all aspects” of the transaction or not.

[78] It is noted that clause 25.2 of the Award relevantly stated:

“25.2 Taking leave

(a) The employer and employee may agree when and for what period the employee is to take the employee’s accrued annual leave, having regard to the personal circumstances of the employee and the operational requirements of the employer. Provided that the employer must not unreasonably refuse to agree to a request by the employee to take accrued annual leave.

(b) Annual leave should be taken by the employee in the employee’s anniversary year in which the entitlement accrues, except if agreed otherwise.

(c) The employer may require the employee to take any portion of annual leave that has accrued in excess of four weeks. In such circumstances the employer must give the employee at least four weeks’ notice of the requirement to take the excess period of accrued annual leave.

(d) If the employer has a business shut-down (which may include a partial shut-down) during the year, the employer may require the employee to take any or all accrued annual leave during the period of the shut-down.

(e) In the event that the employee has insufficient accrued annual leave for the period of the shut-down, the employee may be granted annual leave in advance by the employer.” (emphasis added)

[79] Whilst the Applicant has submitted that the Respondent’s motives in allowing the Applicant to accrue excessive annual leave, and the alleged “requirement” to take the period of annual leave now in dispute, the Applicant has not submitted any evidence of such. The Award provides for the Respondent to require the Applicant to take “any portion” of annual leave that has accrued in excess of four weeks.

[80] The material which has been filed in relation to this matter satisfied the Commission that the Respondent has appropriately responded to numerous requests for particulars of the Applicant’s entitlements to commissions, in accordance with the REIQ Contract. 16 When specific transactions have been raised by the Applicant, the Respondent has responded accordingly and provided explanations as to why such commission is either not payable or has yet to become payable, and the reasoning why and commitments provided regarding the payments of these commissions on completion of those particular transactions. The Applicant’s contentions that the Respondent has created a situation where the Applicant was unable to take leave and then using leave as an opportunity to circumvent the Applicant’s entitlement to commissions is not convincing on the material currently before the Commission. The Applicant has been given several opportunities to clarify her case and has been unable to do so beyond those which she has provided details of, which is already before the Commission. I am satisfied that any further attempt to progress this matter will not lead to any further clarity and does not have a reasonable prospect of success.

[81] The Applicant has relied heavily upon the notion that it is “inconceivable” that in past years she had earned large amounts of commission and on that basis she is entitled to a similar level of commissions. This general submission is not enough to found the basis of a dispute without some clear particularisation, about any matter in dispute; other than inconceivability that converted leads would not have reached similar levels of commissions. Given that the Applicant has not worked for a significant period of the year in question (some 3 months) it is not “inconceivable” that commissions would be lower than in previous periods. It is also not an answer that the Respondent required the Applicant not to take leave in previous years, in the absence of any evidence of such a requirement from the Respondent.

[82] The Applicant has not demonstrated an arguable case as to any specific commissions (beyond those conceded by the Respondent) that are outstanding pursuant to clause 8.2 of the REIQ Contract and has in fact conceded that she has not completed “all aspects of the relevant transaction”. The Applicant has stated that the dispute is a dispute about “underpayment of commissions”. The Applicant has however provided no definitive basis of any alleged underpayment. The Applicant considers that she is entitled to commissions on sales in which she concedes she has no completed “all aspects” of the transaction, but considers that actions taken by others, during her extensive absence, entitles her as having completed “all aspects” by-proxy. Such an entitlement is dubious, at best, and may give rise to considerations beyond the jurisdiction of this Commission generally.

[83] Further the process proposed by the Applicant (in circumstances where she has no information on which her claim is advanced) requires the Respondent to provide personal details and related commercial transactions of over 1000 individuals.

[84] I am satisfied that the Substantive Application, as made, has no reasonable prospects of success and seeks the provision of a significant amount of information to establish a dispute or claim.

[85] Pursuant to s.587(c) the application, filed on 23 July 2013, pursuant to s.739 of the Act, is dismissed.

[86] I Order accordingly.

COMMISSIONER

 1   MA000106.

 2   Fair Work Act 2009 (Cth) s.587(1)(a).

 3   Ibid s.587(1)(b).

 4   Ibid s.587(1)(c).

 5   Respondent’s outline of submissions, filed 31 July 2013.

 6   Ibid at annexure B.

 7   Ibid at annexure C.

 8   Ibid at paragraph 14.

 9   Form F10 application, filed 23 July 2013.

 10   Preliminary submissions of behalf of the Applicant, filed 2 August 2013, paragraph 5.

 11   Ibid at paragraph 18.

 12   [2010] FWA 1765.

 13   [2011] FWA 7469.

 14   [2010] FWAFB 9413.

 15   [2010] FWA 1765.

 16   For example the email of 9 October 2012 and 11 October 2012.

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