Narangoda Amayuru Paranahewa
[2024] FWC 8
•2 JANUARY 2024
| [2024] FWC 8 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
Narangoda Amayuru Paranahewa
(AM2022/32)
| VICE PRESIDENT ASBURY | BRISBANE, 2 JANUARY 2024 |
Application to vary a modern award – Real Estate Industry Award 2020 – travel allowance – start and finish times – excess travel – variation must be necessary to meet modern awards objective – provisional view expressed.
Introduction
This decision deals with an application under s. 158 of the Fair Work Act 2009 (the Act) made by Mr Narangoda Amayuru Paranahewa (Applicant) to vary the Real Estate Industry Award 2020 (Award). The Applicant is a real estate salesperson (Real Estate Employee Level 2) to whom the Award applies and works on a casual basis for various employers who operate licensed real estate agencies. The Applicant is seeking to vary the Award to address entitlements of employees to the payment of wages and motor vehicle allowance in circumstances where they are required to start and/or finish work at locations other than the employer’s office or business premises, necessitating that they travel distances greater than the distance between the employee’s home and the employer’s office or business premises.
The Applicant contends that the Award does not clearly address whether excess time spent travelling by Real Estate Employees for the purposes of commencing or ceasing work at a property that they are responsible for selling or renting, rather than to and from their employer’s office or business premises, is work time for which employees are entitled to be paid. The Applicant further contends that it is not clear whether motor vehicle allowances provided for in clause 17 of the Award are payable for such travel and if so, in what circumstances.
Procedural history
In the course of this matter, submissions were received from the following interested parties:
· The Applicant;[1]
· Registered Real Estate Salespersons’ Association of South Australia (RRESSA);[2] and
· Real Estate Employers’ Federation and Real Estate Employers’ Federation of Western Australia (REEF).[3]
A conference was held before a Member of the Commission on 23 November 2022. At the conference the Applicant agreed to lodge an amended application clarifying the changes he sought to the Award. The Applicant lodged an amended application on 12 December 2022. On 5 January 2023, the Commission received written communication from RRESSA submitting that the Award already provides for the circumstances outlined by the Applicant and stating an opinion that the Applicant’s experience more likely reflects a failure by his employer to comply with the present requirements of the Award.
A directions hearing was held by the then Acting President on 16 January 2023. At the directions hearing, REEF stated that it opposed the application, on the basis that an amendment to the Award was not required, because the issues raised by the Applicant were already addressed by the Award[4]. In this regard, REEF, represented by Mr Paterson, submitted that the provisions at clause 17 of the Award dealing with this are clear, to the extent that whenever a Real Estate Employee is required to use their own vehicle in the course of employment, that employee must be paid.[5] In relation to the Applicant’s claim for payment when he was required to commence work at a location other than the employer’s premises and that location was further from the Applicant’s home than his employer’s office, REEF had the following exchange with the then Acting President:
“MR PATERSON: If they’re travelling in the course of employment, then we would say that payment has to be made. I don’t think there’s any dispute about that.
ACTING PRESIDENT HATCHER: The question is does that award make that clear?
MR PATERSON: We say it does. Just further to that point, Your Honour, bear in mind too that unlike people in other industries, and who come under other awards which might have the type of award provisions that the applicant is talking about here, real estate people use their car as a tool of trade and they’re constantly travelling around during the course of the day. it would be very rare for them to be spending extended periods in the office. So they will be constantly moving from one house to another, doing open for inspections or collecting keys or doing whatever. When they’re doing that, well, we say the clock is ticking on their working week. It doesn’t stop when they get in the car to travel to a particular location. If they’re working they’re working.
So if the applicant was required to travel half an hour to do an inspection or to talk to a prospective vendor then we say that’s part of his working week and he’d be paid for it. If he’s being paid a per-kilometre allowance, under the relevant award – under the Real Estate Award – then he would be paid for the distance that he travels to that appointment. We say that that’s clear and certain.”[6]
Later in the directions hearing on 16 January 2023, REEF confirmed its view that if the Applicant was travelling to conduct an open home inspection, there was “no doubt” he was travelling in the course of his employment and should be paid for that time.[7] Further, REEF confirmed that if the Applicant was being paid a per kilometre allowance under the Award, he would also be paid for the distance that he travels to that appointment.[8] The Real Estate Employers’ Federation of Western Australia (REEFWA), represented at the directions hearing by Mr Lilleyman, indicated agreement with the submissions made by Mr Paterson on behalf of REEF, and added that the application was misguided and should have been dealt with under the dispute resolution clause in the Award.[9]
Directions were issued requiring the Applicant to file a witness statement explaining his standing to make the application and any other material on which he wished to rely in support of his application. Parties opposing the application were directed to file an outline of submissions and any evidence on which they wished to rely in opposition to the application. The matter was allocated to me to hear and determine.
On 17 January 2023, the then Acting President issued a direction, pursuant to ss. 616(3D)(b) and 582 of the Act, that I hear and determine the matter. A hearing was conducted on 28 February 2023. Oral submissions were made at the hearing by the Applicant, RRESSA and REEF (which at that hearing and for the remainder of the proceedings also represented REEFWA). The Applicant’s standing to make the application was discussed and accepted at the hearing. Written submissions from the parties were also filed.
REEF changed its position in relation to the application and indicated that the application was now opposed on the basis that the Applicant was a casual employee and therefore not entitled to payment of travel or allowances under the Award, in the circumstances he claimed. REEF also raised several objections during the hearing, including in relation to RRESSA’s questioning of the Applicant on the basis that it has an aligned interest and in relation to the Applicant’s evidence about casual employment in the real estate industry generally.[10] REEF also objected to RRESSA’s assertion that it had made submissions which aligned with RRESSA’s position at the directions hearing.[11]
The submissions of parties in relation to the proposed variation are summarised below.
Variation proposals and parties’ submissions
Applicant
The Applicant claimed that in circumstances where he is required to travel directly from his home to the location of a property he is opening for inspection, without first attending his usual workplace/employer’s office, he is not paid for time spent travelling and does not receive a “travel allowance” because he is not considered to have commenced work until he arrives at the property being opened. The travel allowance the Applicant refers to is the motor vehicle allowance in clause 17 of the Award.
In contrast, the Applicant states that where an employer requests an employee to attend the employer’s usual workplace, for example to pick up keys, before travelling to another site to conduct real estate activities, the employee’s travel from the employer’s usual workplace to the next work site is counted as time worked and attracts the motor vehicle allowance.[12]
The Applicant submitted that the present provisions concerning travel provide employers an unfair advantage because employers can request employees to travel directly to work sites much further away from their home than their regular workplace and employees are only entitled to payment on arrival at the work site.[13]
The Applicant proposed that clause 13.5 of the Award be varied as follows, to include a new provision regarding start and finish times for employees travelling directly between home and a job away from their usual workplace to start or finish work:[14]
“Travelling and working away from usual place of work
An employee required to start and/or finish work at a job away from the employer’s usual workplace must be paid:
(i) travelling time for all time reasonably spent by the employee in reaching and/or returning from the job which is in excess of the time normally spent by the employee in travelling between the employee’s usual residence and the employee’s usual workplace; and
(ii) any fares reasonably incurred by the employee or which would have been incurred by the employee had the employee not used their own means of transport, which are in excess of those normally incurred in travelling between the employee’s residence and the employee’s usual workplace, provided that if the employee used their own means of transport then excess fares need not be paid where the employee has an arrangement with their employer for a regular allowance.”
The Applicant also proposed inserting a new provision stating when the travel allowance is to be paid at clause 17.2(b)(iv) as follows:[15]
“When the allowance is paid
· if you travel from your regular place of work to meet with a client or to conduct an inspection.
· travel from your home to an alternative place of work (that isn’t a regular place of work) and back to your regular place of work or home.”
The Applicant submitted that his proposed variations are necessary to provide additional remuneration for employees working shifts at irregular places of work. The Applicant related this submission to the modern awards objective set out at s. 134(1)(da) of the Act.[16]
On 30 January 2023, the Applicant filed a statement in support of his application. His statement included details of three real estate agencies he has worked for as a casual real estate agent and that none of these employers have paid him wages or the travel allowance for travel directly between his home and the location of the property he is opening for inspection.[17] The Applicant stated that while he worked for the first agency, he did not have a regular place of work, and was required to commence work each day at the first property at which he was to conduct an “open for inspection”. The Applicant also stated that he has been assigned “open for inspections” at locations up to 100 kilometres (or 1 hour and 30 minutes) from his home and, for one employer, most of the properties assigned to him required him to travel further than would have been required, had he commenced work at the usual place of work – the real estate agency’s office.[18] On these occasions, key access to each property was organised through lock boxes or existing tenants.[19] The Applicant stated that payment for each shift started when he arrived at the first open for inspection and finished when his last open for inspection concluded.[20] In relation to his present employer, the Applicant stated he is assigned work mostly in his local area and his work does not involve excessive travel, however, from time to time he is required to do open for inspections at locations that require him to travel distances that exceed his travel to his usual place of work.[21]
The Applicant claimed that casual real estate agents are predominantly engaged in online real estate agencies and start-ups, however the engagement of casual real estate agents is now evident at traditional agencies. He submitted that this claim is supported by job advertisements for casual real estate agents on the website, Seek.[22] The Applicant also submitted the proposed change is required to ensure the Award provides a fair and relevant minimum safety net taking into account the needs of the low paid and to provide additional remuneration for employees working irregular or unpredictable hours, as set out in ss. 134(1)(a) and 134(1)(da)(ii) of the Act respectively.[23]
Other documents provided by the Applicant included:
· A copy of clause 30.5—Transfers, travelling and working away from usual place of work of the Manufacturing and Associated Industries Award 2020.
· A copy of clause 16—Allowances of the Professional Employees Award 2020, highlighting clause 16.2—Travelling expenses and travelling time.
· Diagrams showing scenarios where an employee’s travel time is paid or unpaid.
· A copy of his enquiry to the Fair Work Ombudsman (FWO) and a response stating the Award is silent on the scenario described by the Applicant.
The Applicant made oral submissions at the hearing on 28 February 2023, in response to the submissions of REEF, stating that he doubts the grievance and dispute resolution process in the Award would assist him since it is not clear that the entitlement exists under the Award. The Applicant rejected the submission of REEF that the casual loading compensates for travel that casual employees are required to undertake in the course of their employment, contending that casual loading compensates for entitlements that casual employees do not receive, such as sick leave and annual leave.[24] The Applicant disagreed that the Award can be compared to the Hospitality Industry (General) Award 2020 or Fitness Industry Award 2020. The Applicant submitted that more appropriate comparisons can be made with classifications in the Manufacturing and Associated Industries and Occupations Award 2020 covering repair persons.[25]
Registered Real Estate Salespersons’ Association of South Australia
As previously noted, RRESSA filed a preliminary submission stating that the Award already provides for the circumstances outlined by the Applicant and asserting that the Applicant’s experience more likely reflects a failure by his employer to comply with the present requirements of the Award.
While not referring to any clauses specifically, RRESSA submitted that on its reading of the Award, a casual employee commences duty when they attend their usual place of work at the nominated starting time. RRESSA submitted that where a casual employee is required to attend for work other than at their usual starting time and location, for example another office of the employer or a client location, any additional time travelling to that location and returning to their usual work office or residence forms part of their working hours on that day and they are entitled to be paid their casual hourly rate for any additional time spent travelling.[26]
Regarding the motor vehicle allowance, RRESSA submitted that casual employees are entitled to be paid an allowance under clauses 17.2(b)(iii) and 17.2(c) and all business kilometres travelled must be paid for, subject to the employee keeping a record of kilometres travelled. Casual salespersons (and full-time or part-time salespersons) are entitled by clause 17.3 to be paid a minimum kilometre allowance of 95 cents per kilometre for up to a maximum of 400 kilometres per week, where the employer elects to pay by the kilometre rather than the lump sum approach provided for in clause 17.2.[27]
On 15 February 2023, RRESSA filed submissions in which it reiterated its position that the Award already deals with the issues raised by the Applicant, and expressed the view that the meaning of provisions could be made clearer.
RRESSA proposed varying clause 17.1 of the Award to address the Applicant’s concerns by inserting the following paragraph:[28]
“For the avoidance of doubt, sub-clauses 17.2, 17.3 and 17.5 include the following meanings:
(a)Where an employee is required to travel from one place to another for the purpose of work, the time occupied in travelling will be counted as time worked and paid as such. Further, if the employee is required to use their own vehicle to travel from one place to another, the additional kilometres travelled by the employee shall be paid the relevant allowances provided under sub – clauses 17.2, 17.3 or 17.5 and,
(b)Time spent by an employee travelling from the employee’s home to their principal place of employment and return will not be regarded as time worked, nor will the employee be entitled to claim any travel expense in this circumstance, other than as provided for by this award.”
At the hearing on 28 February 2023, RRESSA suggested adding a reference to clause 13 of the Award into its proposed clause.[29] RRESSA noted that its proposal is based on clause 18.3(b) of the Pastoral Award 2020 and clarifies the circumstances in which travel time is paid and attracts the travel allowance or is not paid and not subject to the travel allowance.[30]
RRESSA stated it did not propose amendments to any other part of clause 17 because it believes the Award already provides for the described payment and it does not want to disturb that understanding by varying the Award in a way that might lead to the impression that a new entitlement has been created. It submitted that such an interpretation would impinge on the existing award rights of employees who have at least six years in which to make claims for non-payment of additional travel time or travel expenses.[31]
At the hearing on 28 February 2023, RRESSA made oral submissions rejecting the changed position of REEF that the casual loading and minimum engagement period take into account or compensate for the itinerant nature of casual employment.[32] It further submitted that the travel allowance is not built into wage rates and must be separately identified for the purposes of the Act.[33]
Responding to arguments about the weight to be afforded to the Applicant’s claims, RRESSA made oral submissions that s. 158 of the Act allows individual employees to apply to vary an award and the Applicant’s concerns should not be dismissed as less worthy of consideration than if they had been raised by a union or employer organisation.[34]
RRESSA reiterated that clause 17.2 of the Award entitles casual employees to the travel allowance. It stated that in the real estate industry the act of travelling to required locations forms part of the task that an employee is engaged in. An employee commences their assigned task, and consequently work or engagement, when they get into their vehicle to travel to the required location. RRESSA made a comparison to arrangements in the Commercial Sales Award 2020.[35]
Real Estate Employers’ Federation and Real Estate Employers’ Federation of WA
REEF’s initial position as articulated at the directions hearing on 16 January 2023, was to oppose the application,[36] based on a submission that an amendment to the Award was not required, because the issues raised by the Applicant were already addressed by the Award. REEF submitted at that time, that clause 17 of the Award is clear, to the extent that whenever a Real Estate Employee is required to use their own vehicle in the course of employment, that employee must be paid.[37]
When the matter proceeded to hearing, REEF (also representing REEFWA) changed its position in relation to the substance of the application. REEF also took issue with the Applicant’s standing to make the application, submitting that the Applicant only had standing to apply to vary parts of the Award that relate to his employment as a casual sales agent, and he cannot seek to vary parts of the Award that do not apply to him. REEF submitted that the Applicant cannot be taken to be the representative of anyone, or any interest, other than himself.[38]
In relation to the substance of the application, and contrary to the position taken at the directions hearing, REEF submitted that casual employees are not entitled to payment of travel time and costs to attend work. According to the submission, casual employees do not have a regular place of employment and can be offered engagements wherever the employer considers that they can offer the work on a particular day and can accept or reject the offer of work. If a casual employee accepts the offer of work, the employer does not have to pay the casual employee for travel time and costs to attend work. REEF also submitted that the casual loading and minimum engagement period applying to casual employees provides compensation for the time and costs of such travel.[39]
In support of its contention about the nature of casual employment, REEF cited a 1974 decision of the South Australian Industrial Magistrates Court in Haseldine v Blue Moon Catering Service,[40] noting in particular that casual employment is described as operating on the basis that: “Each time he performs a job he is working under a new contract of employment; it is necessary for the employer to arrange with him when and where he will work”.[41] It was submitted that the definition of casual employee at s. 15A of the Act is similar in effect to the description of casual employment in Haseldine v Blue Moon Catering Service.[42]
Regarding the purpose of the casual loading, REEF submitted that the Australian Industrial Relations Commission, in making the Real Estate Award 2010, adopted the casual loading from the Metal, Engineering and Associated Industries Award 1998. It is arguable the casual loading in the Metal, Engineering and Associated Industries Award 1998 was fixed having regard to, amongst other things, union submissions about the itinerant nature of casual work. In support of its contention, REEF cited submissions by the Australian Council of Trade Unions regarding setting the casual loading in the Metal, Engineering and Associated Industries Award 1998.[43]
In support of its contention that the minimum engagement period takes account of the time and costs associated with travel, REEF cited a decision of a Full Bench of the Commission in the 4 yearly review of modern awards concerning casual and part-time employment,[44] highlighting a statement of the Full Bench in that case that the fundamental rationale of minimum engagement periods “has essentially been to ensure that the employee receives a sufficient amount of work, and income, for each attendance at the workplace to justify the expense and inconvenience associated with that attendance by way of transport time and cost…”.[45]
Accordingly, REEF submitted that “itinerance” is already addressed by the provisions of the Award applying to casual employment. It submitted that casual employees would be compensated twice if the Award also required them to be paid for travel time and the cost of attending work.[46] REEF also submitted that the proposed variation is a significant departure from general standards and could have a considerable impact on the real estate industry and other industries that engage casual employees. It submitted the variation would be more appropriately considered as part of a broader review of modern awards.[47]
Further, REEF questioned whether varying the Award is necessary based on the experience of a single casual employee and suggested the Applicant utilise other means of resolving his concerns, such as the grievance and dispute resolution process under clause 28 of the Award or by refusing engagements at work locations that require too much travel.[48] It further submitted that the Applicant has not presented analysis or probative evidence demonstrating the proposed variation has merit.[49]
At the hearing on 28 February 2023, REEF made oral submissions confirming its position that casual employees work on a per engagement basis and are not entitled to payment for time spent travelling to a work engagement.[50] REEF submitted the travel allowance entitlement only applies during the course of employment, meaning that if a casual employee is required to use their car in the course of an engagement, then they would be entitled to reimbursement for that use.
REEF also submitted that the evidence does not justify making a change to the Award that would have broader scope beyond the Applicant[51] and referred to the outcome of a variation application by Total Toning Fitness Pty Ltd as guidance on making changes to an award affecting a broad industry based on the experience of a single stakeholder.[52] It submitted that the Applicant has not demonstrated that the variation is merited or necessary to achieve the modern awards objective, particularly given he has not demonstrated his concerns could not be resolved via the Award’s grievance and dispute resolution procedures.[53] REEF submitted that not enough is known about the Applicant’s circumstances[54] and suggested his working arrangements do not appear to be like a conventional real estate agent.[55] It submitted the Award is supposed to be a safety net and is not intended to take into account every circumstance.[56] Further, REEF submitted the system of modern awards is supposed to be a stable system providing certainty and that the provisions in question are conventional.[57]
Legislative framework
Section 157 of the Act relevantly states that the Commission may vary modern awards if it is satisfied the change is necessary to achieve the modern awards objective:
“157 FWC may vary etc. modern awards if necessary to achieve modern awards objective
(1) The FWC may:
(a)make a determination varying a modern award, otherwise than to vary modern award minimum wages or to vary a default fund term of the award; or
(b) make a modern award; or
(c) make a determination revoking a modern award;
if the FWC is satisfied that making the determination or modern award is necessary to achieve the modern awards objective.
Note 1: Generally, the FWC must be constituted by a Full Bench to make, vary or revoke a modern award. However, the President may direct a single FWC Member to make a variation (see section 616).
Note 2: Special criteria apply to changing coverage of modern awards or revoking modern awards (see sections 163 and 164).
Note 3: If the FWC is setting modern award minimum wages, the minimum wages objective also applies (see section 284).
…
(3) The FWC may make a determination or modern award under this section:
(a) on its own initiative; or
(b) on application under section 158.”
Section 134 of the Act sets out the modern awards objective:
“134 The modern awards objective
What is the modern awards objective?
(1)The FWC must ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions, taking into account:
(a) relative living standards and the needs of the low paid; and
(aa) the need to improve access to secure work across the economy; and
(ab) the need to achieve gender equality in the workplace by ensuring equal remuneration for work of equal or comparable value, eliminating gender‑based undervaluation of work and providing workplace conditions that facilitate women’s full economic participation; and
(b) the need to encourage collective bargaining; and
(c)the need to promote social inclusion through increased workforce participation; and
(d)the need to promote flexible modern work practices and the efficient and productive performance of work; and
(da) the need to provide additional remuneration for:
(i) employees working overtime; or
(ii) employees working unsocial, irregular or unpredictable hours; or
(iii) employees working on weekends or public holidays; or
(iv) employees working shifts; and
(f)the likely impact of any exercise of modern award powers on business, including on productivity, employment costs and the regulatory burden; and
(g)the need to ensure a simple, easy to understand, stable and sustainable modern award system for Australia that avoids unnecessary overlap of modern awards; and
(h)the likely impact of any exercise of modern award powers on employment growth, inflation and the sustainability, performance and competitiveness of the national economy.
This is the modern awards objective.
When does the modern awards objective apply?
(2)The modern awards objective applies to the performance or exercise of the FWC’s modern award powers, which are:
(a) the FWC’s functions or powers under this Part; and
(b)the FWC’s functions or powers under Part 2-6, so far as they relate to modern award minimum wages.
Note: The FWC must also take into account the objects of this Act and any other applicable provisions. For example, if the FWC is setting, varying or revoking modern award minimum wages, the minimum wages objective also applies (see section 284).”
Issues for determination
The Applicant’s claim concerns the circumstance where an employee is required by an employer to commence work at a location other than the employer’s place of business. The Applicant states that this circumstance may arise in several ways. The business of conducting a real estate agency may be undertaken from an office where employees report to work each day to collect keys to properties, and other items they require to undertake work, before travelling to another location, such as a property the employee is required to show. In some cases, employees travel from their homes directly to the first property they are required to show and collect keys from a location at that property, without first travelling to the employer’s office premises. The Applicant complains that in the latter case, he has been considered by his employer to have commenced work at the first property, notwithstanding that he may have been required to drive distances exceeding the distance between his home and the employer’s office. The Applicant also states that some employers do not have office premises and conduct their real estate business entirely online.
The Applicant raises two questions. Firstly, the Applicant questions the point at which an employee covered by the Award, who is required to commence work at a location other than the employer’s place of business or office, is entitled to payment. The Applicant seeks to vary the Award to provide for payment to employees for excess travel, or travel that exceeds the distance between the employee’s home and the employer’s place of business or office. The Applicant does not indicate the variation he is seeking in respect of employees whose employers conduct their real estate business entirely online and do not operate an office. Secondly, the Applicant questions the entitlement of employees commencing or ceasing work at a location other than the employer’s office, to be paid motor vehicle allowance as prescribed by clause 17 of the Award when travelling to and from their homes to the point at which work starts or finishes. The Applicant seeks a clarification by way of an Award variation, to ensure that the entitlement of employees is clear.
REEF initially accepted that when directed to commence work at a location other than an employer’s office, the employee should be paid for the time spent travelling to that location and motor vehicle allowance for the kilometres travelled, if that method of payment is the method adopted by the employer and employee. REEF later changed its position and submitted that casual employees are not entitled to either payment. REEF’s view about the entitlement of full-time employees to such payments was not articulated.
In support of its contention that the minimum engagement period takes account of the time and costs associated with travel, REEF cited a decision of a Full Bench of the Commission in the 4 yearly review of modern awards concerning casual and part-time employment,[58] highlighting a statement that the fundamental rationale of minimum engagement periods “has essentially been to ensure that the employee receives a sufficient amount of work, and income, for each attendance at the workplace to justify the expense and inconvenience associated with that attendance by way of transport time and cost…”.[59]
Accordingly, REEF submitted that “itinerance” is already addressed by the provisions of the Award applying to casual employment. It submitted that casual employees would be compensated twice if the Award also required them to be paid for travel time and the cost of attending work.[60] REEF also submitted that the proposed variation is a significant departure from general standards and could have a considerable impact on the real estate industry and other industries that engage casual employees. It submitted the variation would be more appropriately considered as part of a broader review of modern awards.[61]
Further, REEF questioned whether varying the Award is necessary based on the experience of a single casual employee and suggested the Applicant utilise other means of resolving his concerns, such as the grievance and dispute resolution process under clause 28 of the Award or by refusing engagements at work locations that require too much travel.[62] It further submitted that the Applicant has not presented analysis or probative evidence demonstrating the proposed variation has merit.[63]
At the hearing on 28 February 2023, REEF made oral submissions confirming its position that casual employees work on a per engagement basis and are not entitled to payment for time spent travelling to a work engagement.[64] REEFsubmitted the travel allowance entitlement only applies during the course of employment, meaning that if a casual employee is required to use their car in the course of an engagement, they would be entitled to reimbursement for that use.
In light of the change in the position of REEF, it is necessary to determine the proper construction of existing award provisions before dealing with the application to vary those provisions, and whether such a variation is consistent with the modern awards objective.
Relevant Award provisions
The Award is an industry-based award covering employers in the real estate industry in respect to their employees engaged in classifications in clause 14 – Minimum rates. The real estate industry is defined in clause 4.2 as follows:
“4.2Real estate industry means the provisions of services associated with sales, acquisitions, leasing and/or management of residential, commercial, retail, industrial, recreational, hotel, retirement and any other leasehold or real property and/or businesses. These services include:
(a) real estate agency;
(b) business and hotel broking;
(c) strata and community title management (or similar service however described);
(d) stock and station agency;
(e) buyers agency; and
(f) real estate valuation.”
The hours of work provisions in the Award regulate ordinary working hours in a way that can be described as minimal. In this regard, clause 13 provides as follows:
“13. Ordinary hours of work and rostering
13.1 Subject to clause 13.2, ordinary hours of work are 38 hours per week, which may be worked on any day of the week.
13.2Averaging of hours of work
Hours of work may be averaged over an 8 week period. The average weekly hours over the period must not exceed:
(a) for a full-time employee—38 hours; or
(b) for an employee who is not a full-time employee—the lesser of:
(i) 38 hours; and
(ii) the employee’s ordinary hours of work in a week.
13.3 Rostered time off
(a) An employee, other than a casual, will be allowed either one and a half or 2 rostered days free of duty each week.
(b) Rostered time off may be taken in one of the following ways:
(i) one consecutive period;
(ii) 2 periods; or
(iii) 3 periods comprising one day and 2 half days.
13.4 Unpaid meal break
(a) No employee will be required to work more than 5 hours without an unpaid meal break of at least 30 minutes duration.
(b) If the employee’s rostered hours are not longer than 6 hours the employee may elect, with the employer’s approval, to not take a meal break.
(c) Meal breaks are not treated as time worked.”
The Award provisions do not prescribe a maximum or minimum number of ordinary hours per day or a daily spread in which hours must be worked. While ordinary hours are prescribed as 38 per week, such hours may be averaged over an 8-week period and there is no limitation in relation to the days of the week on which ordinary hours may be worked. For employees other than casual employees, one and a half or two days per week of rostered time off is provided for, which may be taken in a number of combinations with no requirement that rostered time off is scheduled on consecutive days.
In relation to the motor vehicle allowance, clause 17 of the Award provides:
“17. Allowances
NOTE: Regulations 3.33(3) and 3.46(1)(g) of Fair Work Regulations 2009 set out the requirements for pay records and the content of payslips including the requirement to separately identify any allowance paid.
17.1 Employers must pay to an employee the allowances the employee is entitled to under this award.
NOTE: See Schedule C—Summary of Monetary Allowances for a summary of monetary allowances and method of adjustment.
17.2 Motor vehicle allowance
(a)If the employer requires the employee to use the employee’s own motor vehicle in the course of employment, the employee must be reimbursed for the use of their motor vehicle in accordance with clauses 17.2(b), 17.2(c) or 17.3. Clause 17.2 does not apply to the use of a motor scooter or motor cycle.
(b) Calculation of allowance
(i)An employee must be paid a weekly standing charge allowance plus the amount per kilometre for the distance travelled in performing duties under this award as set out in the table at clause 17.2(b)(iii), calculated by reference to the age and engine capacity of the vehicle.
(ii)If the employer and employee expressly agree in writing, a weekly lump sum payment as set out in the table calculated by reference to the engine capacity of the vehicle, may be applied instead of the standing charge and per kilometre rate.
(iii) Allowance rates
Engine capacity
Allowance
Rate
$
Up to 5 years old
Up to and including 1600cc
Standing charge
97.31
Up to and including 1600cc
Per kilometre
0.16
Up to and including 1600cc
Lump sum
178.67
1601cc up to and including 2600cc
Standing charge
133.38
1601cc up to and including 2600cc
Per kilometre
0.19
1601cc up to and including 2600cc
Lump sum
229.73
Over 2600cc
Standing charge
138.78
Over 2600cc
Per kilometre
0.21
Over 2600cc
Lump sum
248.87
Over 5 years old
Up to and including 1600cc
Standing charge
49.45
Up to and including 1600cc
Per kilometre
0.16
Up to and including 1600cc
Lump sum
134.01
1601cc up to and including 2600cc
Standing charge
74.03
1601cc up to and including 2600cc
Per kilometre
0.19
1601cc up to and including 2600cc
Lump sum
172.29
Over 2600cc
Standing charge
80.73
Over 2600cc
Per kilometre
0.23
Over 2600cc
Lump sum
204.20
(c)Part-time and casual employees entitled to be paid a motor vehicle allowance in accordance with clause 17.2, will have the entitlement calculated on the basis of one fifth of the appropriate standing charge or lump sum rate for each day worked.
(d)For the purpose of clauses 17.2(b) and 17.2(c), the age of the vehicle will be determined by reference to the date stamp on the compliance plate of the vehicle.
(e)Notwithstanding any other provision of clause 17.2, a full-time employee may be reimbursed for the use of their vehicle for the days only where the vehicle is required to be used to perform duties under this award. In such instances, the employee will be entitled to receive one fifth of the weekly lump sum rate in accordance with the above tables for each day the vehicle is used at the direction of the employer. Provided that, where the vehicle is used on 3 or more days in any week, the full weekly rate will be payable for that week.
(f)If an employee is entitled to a car allowance in accordance with clause 17.2 and the employee changes the motor vehicle thereby entitling the employee to either a higher or lower car allowance rate, the following shall apply:
(i)If the change in the vehicle provided by the employee entitles the employee to a higher car allowance rate, such rate will be payable from the first full pay period after the date the employee provides the employer with a true copy of the registration papers of the new motor vehicle; or
(ii)If the change in the vehicle provided by the employee entitles the employee to a lower car allowance rate, the employee must notify the employer within 7 days of the change and provide a copy of the registration papers of the new motor vehicle.
17.3 Motor vehicle allowance—alternative
(a)Instead of the provisions contained in clause 17.2, the employer may elect to pay the employee a $0.95 per kilometre allowance for all use of the employee’s own motor vehicle in the course of employment, to a maximum of 400 km per week.
(b)If the employee claims the motor vehicle allowance under clause 17.3, the employee must keep a record of all such usage which will show:
(i)the date and odometer reading of the first such usage of the motor vehicle at the commencement of the log book;
(ii)the date and commencement and final odometer reading for each day on which the allowance is claimed;
(iii) total business kilometres each day;
(iv) the purpose of each usage; and
(v) the signature of the employee, certifying the usage.
17.4 Motor vehicle allowance not payable
(a)Nothing prescribed under clauses 17.2 or 17.3 shall entitle an employee to be paid any motor vehicle allowance where:
(i) the employee is absent from duty without the consent of the employer;
(ii) the employee is on any period of paid and/or unpaid leave;
(iii)the employee is unable to perform his or her duties under this award due to the loss of their driver’s licence; or
(iv)the motor vehicle is unavailable due to accident or mechanical defect, provided that such payments will be payable for any day on which the employee provides an alternate motor vehicle for the purpose of performing their work-related duties.
(b)In these circumstances the motor vehicle entitlement will be reduced by one-fifth of the weekly standing charge or lump sum rate, whichever is applicable, for each day the car is not used by the employee in the course of employment.
17.5 Motor cycle allowance
(a)Where the employer requires the employee to use the employee’s own motor scooter or motor cycle in the course of employment, the employee will be entitled to be reimbursed for the use of the motor scooter or motor cycle at a rate of $0.32 per kilometre for its use in the course of employment with a maximum payment as for 400 kilometres per week. Where the employee claims the allowance under clause 17.5, the employee must keep a record of all such usage which will show:
(i)the date and odometer reading of the first such usage of the motor scooter or motor cycle at the commencement of the log book;
(ii)the date and commencement and final odometer reading for each day on which the allowance is claimed;
(iii) total business kilometres each day;
(iv) the purpose of each usage; and
(v) the signature of the employee, certifying the usage.
17.6 Employer’s motor vehicles
(a)If the employer provides a motor vehicle for the use of the employee when performing work-related duties, the expenses arising out of the provision, maintenance and lawful operation of such vehicle will be met by the employer.
(b)The employee must adhere to the employer’s lawful directions, conditions or policies in relation to the use of the employer’s vehicle.”
Clause 19 of the Award provides for overtime as follows:
“19.1 Payment for overtime
(a)Hours worked at the specific direction of the employer in excess of those prescribed in clause 13—Ordinary hours of work and rostering other than on an employee’s rostered day or half day off work will be paid at the hourly rate of pay or taken as time off instead of payment for overtime as prescribed in clause 19.2 or paid at the following rates:
…
NOTE: The overtime rates for casual employees have been calculated by adding the casual loading prescribed by clause 11.2(a)(ii) to the overtime rates for full-time and part-time employees prescribed by clause 19.1(a).
(b)For the purpose of clause 19.1, specific direction means that the employee was given an express instruction to perform work in excess of the hours prescribed under clause 13—Ordinary hours of work and rostering.
(c)If the employee works hours in excess of those prescribed under clause 13—Ordinary hours of work and rostering at their own initiative (i.e. without any express instruction from the employer to do so) the employee will not be entitled to payment in accordance with clause 19.1(a).”
The Applicant states that he was employed as a casual Real Estate Employee Level 2. The responsibilities of employees at this level are set out in A.2 of Schedule A to the Award. A.2.1 provides as follows:
“A.2.1Employees at this level have been classified as Level 2 by the employer. An employee at this level may perform any of the duties of a Real Estate Employee Level 1 (Associate Level) but will also have responsibility for the listing and/or selling of real property or businesses, for helping clients to buy real property or businesses or for managing rental or strata/community title properties or for sourcing and/or securing new property managements (including strata title managements).”
The list of indicative tasks for Level 2 employees is set out in A.2.3 and relevantly include performing market appraisals, conducting property inspections, conducting auctions, organising property repairs and maintenance, appearing before tenancy tribunals, and attending and/or conducting strata management meetings.
Consideration
Construction of Award provisions
In AMA (Victoria) Ltd and Australian Salaried Medical Officers Federation v The Royal Women’s Hospital[65], a Full Bench of the Commission distilled principles from the Full Court of the Federal Court majority in James Cook University v Ridd[66] in relation to the construction of awards and enterprise agreements as follows:
“The starting point is the ordinary meaning of the words, read as a whole and in context.
A purposive approach is preferred to a narrow or pedantic approach – the framers of such documents were likely to be of a practical bent of mind. The interpretation turns upon the language of the particular agreement, understood in the light of its industrial context and purpose.
Context is not confined to the words of the instrument surrounding the expression to be construed. It may extend to the entire document of which it is a part, or to other documents with which there is an association.
Context may include ideas that gave rise to an expression in a document from which it has been taken.
Recourse may be had to the history of a particular clause where the circumstances allow the court to conclude that a clause in an award is the product of a history, out of which it grew to be adopted in its present form.
A generous construction is preferred over a strictly literal approach but agreements should make sense according to the basic conventions of the English language.
Words are not to be interpreted in a vacuum divorced from industrial realities but in the light of the customs and working conditions of the particular industry.”[67]
The context in which the Award subject of the present proceedings operates is the real estate industry, defined in the Award to mean the provision of services associated with sales, acquisitions, leasing and/or management of residential, commercial and other properties. As REEF acknowledges in its submissions, it is common for employees engaged as real estate salespersons or employees engaged in the leasing or management of properties, to travel in their own vehicles in the course of their employment.
The following observations can be made in relation to Award provisions relevant to the present dispute. While the Award does not define “work” or specify when an employee is working, it appears that work which is part of an employee’s ordinary hours includes work undertaken on the employee’s own initiative or as directed by an employer. It is apparent that employees engaged as a Real Estate Employee level 2 (Representative level), could not operate without exercising autonomy and judgement in relation to the performance of their work, including decisions involving flexibility as to whether to commence work at the employer’s office or at a property that the Representative is responsible for selling or leasing. Given the customer focus of the industry and the services provided, it is probable that employees commence work at locations other than the employer’s office. It is also probable that employees at Level 1 who are undertaking duties prescribed for that Level would also be required to commence work at locations other than the employer’s office. The Applicant’s evidence is that one employer he worked for does not have an office and simply required him to travel between properties to undertake his duties.
It is also relevant that, in order to attract the payment of overtime, the overtime provisions in clause 19 require that work in excess of the hours prescribed in clause 13 is at the “specific direction” of the employer - with that term being defined as an “express instruction” to perform work in excess of the hours prescribed in clause 13. This suggests that work within ordinary hours is not required to be undertaken at the specific direction of the employer to constitute work, at least for employees in positions involving the exercise of autonomy.
The indicative tasks set out in the classification definition for Level 2 employees and the definitions for employees at other Levels of the classification structure in Schedule A to the Award, include tasks which are obviously required to be performed at properties for sale or lease or at locations other than an office or premises operated by an employer and tasks which could not be performed at any location other than a property with respect to which the employee is performing work covered by the classification definitions in the Award.
In relation to the motor vehicle allowance prescribed by clause 17.2, the entitlement applies if an employer “requires” an employee to use the employee’s own vehicle in the course of employment. The phrase “in the course of employment” is wider than terms such as “at work”, or “while performing work”. Similarly, the term “requires” is wider than the term “directed” and covers travel that is necessary to undertake allocated work. In this respect a requirement is something that may be an inherent aspect of the work while a direction is specifically given.
It is generally the case that employees who work or are based at a particular location, are expected to travel to and from that location at the commencement and cessation of work, in their own time and that their own expense. That travel cannot be said to be “in the course of employment” and work commences when the employee arrives at that location. However, there is nothing novel about award provisions distinguishing circumstances where an employee is required to travel to a location other than the usual place of work or the location or base from which the employee works and providing for payment for time spent travelling and for expenses associated with such travel. There is also nothing novel about an award provision that recognises that travel is a necessary part of carrying out work. As REEF submitted in the preliminary hearing of this matter, Real Estate Employees use their car as a tool of trade, are constantly travelling during the course of the day and it is rare for them to spend extended periods in the office. Further, as REEF submitted, Real Estate Employees are constantly moving from one house to another undertaking tasks such as open for inspections and collecting keys, and it is accepted that such travel is work. Despite changing its position and arguing that this work was encompassed in casual loading and payment for minimum engagement, REEF did not withdraw its submissions about when Real Estate Employees are performing work. I do not accept that a variation to the Award to deal with the issues raised by the Applicant will have wider application or that it will have a significant impact on other industries that employ casual employees. These issues are relevant only to employees required to travel in the course of their employment and to use their own vehicles.
I accept the evidence of the Applicant, which was supported by the submissions of REEF, that a Real Estate Employee undertaking work within the classification definitions in the Award, who commences work at a property that the employee is allocated to sell or to lease, is at the location to undertake work that is required by the employer to be done and is described in the classification definitions in Schedule A to the Award. It is improbable that employees would choose to travel in their own time and at their own expense to such a property for a purpose other than the performance of work.
I agree with the views expressed by RRESSA and the initial position of REEF, that where an employee is required to be at a particular location to perform work (which is not the employee’s usual location or base) time spent by the employee travelling to that location is prima facie work for which the employee is entitled to be paid. Where the employee is using his or her own vehicle to travel to and from such locations the employee is using the vehicle in the course of employment and is entitled to the motor vehicle allowance in clause 17.2 consistent with whatever agreement has been reached between the employer and employee pursuant to that clause in relation to the manner of payment.
The later proposition advanced by REEF to the effect that casual loading and minimum engagement provisions compensate the Applicant for “itinerance”, including being required to commence work at a range of locations, cannot be accepted. On the plain words of the Award, casual employees are entitled to ordinary time and overtime payments on the same basis as full-time employees. This is apparent from clause 11.3 of the Award which provides that when a casual employee works overtime, they must be paid overtime rates in clause 19. The provisions of clause 19 stipulating when overtime is payable apply to casual employees. The casual loading in clause 11.2(b) of the Award is paid instead of annual leave, paid personal/carer’s leave, notice of termination, redundancy benefits and other entitlements of full-time or part-time employment. It does not compensate casual employees for time and expense associated with being required to start work at different locations. The submission of REEF that casual employees will be paid twice for travel expenses and time spent travelling cannot be sustained.
Similarly, while an employer may set off a payment required to be made under the Award against over-award payments, the employer may not set off one minimum Award entitlement against another minimum Award entitlement. A casual employee who is paid the minimum Award rate and is required to use his or her own motor vehicle in the course of employment, is entitled to both the casual loading and the motor vehicle allowance. As previously discussed, the casual loading does not compensate employees for expenses associated with the required use of their own vehicle in the course of their employment.
The case cited by REEF - Haseldine v Blue Moon Catering Service[68] - does not assist with the argument advanced by those organisations. That case was decided in 1973 and concerned whether an employee had continuous service for the purposes of determining an entitlement to long service leave. Reference was made the concept of “regular casuals” and “casual casuals”, and it was observed that these types of employees could more accurately be described as “regular part-time” and “casual”. The former was said to be an employee who “[has] but one contract of service throughout the whole period of the employment” and where absences from work are “within the contract of service”. In contrast, a casual employee was described as follows:
“A casual employee can be a person who has an arrangement with an employer that when the employer requires his services he will call on him. The employment is irregular, the employee not working on fixed days or at fixed times. When he is not working he has no continuing contract of employment with the employer requiring him to work again at a specified time, although he might have agreed as to when he will be available again. He works when so requested by the employer. Each time he performs a job he is working under a new contract of employment; it is necessary for the employer to arrange with him when and where he will work. He may not agree to work on some occasions.”
The term “casual casual” referred to in Haseldine and the description of such employment[69] was prescient in the light of recent cases concerning casual employment and the definition in s. 15A of the Act. The Applicant in the present case tendered a written contract stating that he is employed as a casual Listings Finder, with employment subject to the Award. The contract states that the Applicant’s employment terminates at the end of each and every engagement and recommences on each new engagement. The contract of employment also states that his initial place of employment will be a specified location as well as any other locations required to fulfil his duties and that he may at any time be required to work at other locations.
The Applicant’s employment contract also provides as follows:
“All payments made to you by the Employer throughout your employment (regardless of whether they are expressly referred to or guaranteed by this contract) compensate for and set-off to the fullest extent possible all combined benefits or entitlements you have under any applicable industrial instrument or law. This includes, without limitation, payment for all hours worked, any minimum wage, payment for minimum periods of engagement, overtime, penalty rates for weekend work or public holiday work, shift and overtime allowances, meal allowances, annual leave loading and any other allowances and loadings to which you may otherwise be entitled. Where the combined monetary value of all such benefits or entitlements exceed the combined monetary value of all payments actually made to you, the Employer’s further payment obligations shall be limited to the difference between those two combined amounts.”
The Applicant’s contract of employment indicates that he is a casual employee within the meaning in s. 15A of the Act. Regardless of the terms of his contract and the statutory definition of casual employee, the Applicant is covered by the Award. As a casual employee, the Applicant’s ordinary hours of work are prescribed by the Award at clause 13 and he is entitled to be paid as a minimum, award rates for ordinary hours worked and overtime for hours in excess of those ordinary hours in accordance with clauses 14 (Wages and Allowances) and 19 (Overtime). The Applicant is also entitled to other applicable terms and conditions of employment prescribed by the Award including the motor vehicle allowance in clause 17, when required by the employer to use his own motor vehicle in the course of his employment. The motor vehicle allowance applies to all employees using their own motor vehicle in the course of employment and as provided in clause 17.2(c) in relation to casual employees, is calculated based on one fifth of the appropriate standing charge or lump sum rate for each day worked or the alternative method in clause 17.3.
The argument of REEF to the effect that the three-hour minimum engagement prescribed by clause 11.1 of the Award compensates casual employees for travelling to locations where they are required to commence work, is correct, provided that travel required to be undertaken by casual employees is considered to be work and is counted in the hours covered by the minimum engagement. The argument that the minimum engagement for casual employees compensates employees for something that REEF also submits they are not entitled to receive because it is encompassed in the casual loading, is counter-intuitive and contradictory.
Finally, I do not accept the argument of REEF that the dispute resolution term in clause 35 of the Award is a suitable mechanism for resolving the issues raised by the Applicant. This contention on the part of REEF is also counter-intuitive in circumstances where those organisations have adopted a position (contrary to their earlier position) whereby they do not accept that the Applicant (who is a casual employee) has any entitlement to the benefits of the Award he claims. I also note that the Applicant tendered advice from the Office of the Fair Work Ombudsman informing him that the Award is silent in relation to the matters that are the subject of his application to vary the Award.
Accordingly, when the Applicant is required to commence work at a property where he is providing services described in clause 4.2 of the Award and within the classification definitions in Appendix A and uses his own vehicle to travel to the property, the Applicant is working and is entitled to payment for that work at least at the minimum Award rate. The Applicant is also entitled to be paid the motor vehicle allowance in clause 17.2 of the Award, as reimbursement for the use of his vehicle. The variations the Applicant seeks do no more than clarify these entitlements.
However, the contract of employment tendered by the Applicant provides for any amount the Applicant is paid in excess of the Award, to be set off against other Award entitlements. It appears that the casual rate in the contract of employment exceeds the minimum Award rate and that the excess amount may be offset against the Applicant’s entitlement to motor vehicle allowance in clause 17.2. Regardless of this, the application has identified provisions of the Award requiring clarification as is apparent from the shift in position of REEF. The fact that the Applicant is a single casual employee agitating an issue on his own behalf does not alter the fact that he has identified that provisions of the Award are deficient in that they lack clarity. The lack of clarity is confirmed by the positions taken by the parties.
Regrettably for the Applicant, given the terms of his contract of employment, it may be that he receives little or no benefit from this application as his hourly rate appears to exceed the minimum Award rate for casual employees and there are provisions relating to absorption of Award payments (which arguably include payments under the provisions he seeks to vary) into the over award amount.
Application of the modern awards objective
The principles to be applied when considering whether a modern award should be varied were outlined by the Full Bench in Variation of awards on the initiative of the Commission[70], as follows:
“[112] The Commission may make a determination varying a modern award if the Commission is satisfied the determination is necessary to achieve the modern awards objective. The modern awards objective is to ‘ensure that modern awards, together with the National Employment Standards, provide a fair and relevant minimum safety net of terms and conditions’, taking into account the particular considerations identified in ss.134(1)(a)–(h) (the s.134 considerations).
[113] The modern awards objective is very broadly expressed.[71] It is a composite expression which requires that modern awards, together with the National Employment Standards (NES), provide ‘a fair and relevant minimum safety net of terms and conditions’, taking into account the matters in ss.134(1)(a)–(h).[72] Fairness in this context is to be assessed from the perspective of the employees and employers covered by the modern award in question.[73]
[114] The obligation to take into account the s.134 considerations means that each of these matters, insofar as they are relevant, must be treated as a matter of significance in the decision-making process.[74] No particular primacy is attached to any of the s.134 considerations[75] and not all of the matters identified will necessarily be relevant in the context of a particular proposal to vary a modern award.
[115] It is not necessary to make a finding that the award fails to satisfy one or more of the s.134 considerations as a prerequisite to the variation of a modern award.[76] Generally speaking, the s.134 considerations do not set a particular standard against which a modern award can be evaluated; many of them may be characterised as broad social objectives.[77] In giving effect to the modern awards objective the Commission is performing an evaluative function taking into account the matters in s.134(1)(a)–(h) and assessing the qualities of the safety net by reference to the statutory criteria of fairness and relevance.
[116] Section 138 of the Act emphasises the importance of the modern awards objective:
‘Section 138 Achieving the modern awards objective
A modern award may include terms that it is permitted to include, and must include terms that it is required to include, only to the extent necessary to achieve the modern awards objective and (to the extent applicable) the minimum wages objective.’
[117] What is ‘necessary’ to achieve the modern awards objective in a particular case is a value judgment, taking into account the s.134 considerations to the extent that they are relevant having regard to the context, including the circumstances pertaining to the particular modern award, the terms of any proposed variation and the submissions and evidence.[78]”
Accordingly, I now turn to the s. 134 considerations. Section 134(1)(a) of the Act requires that I consider “relative living standards and the needs of the low paid”. A threshold of two-thirds of median full-time wages provides a suitable benchmark for identifying who is “low paid”, within the meaning of s. 134(1)(a).
I consider that there are employees covered by the Award who are likely to fall within the scope of the Application and who may be regarded as “low paid” within the meaning of s. 134(1)(a) of the Act. In the Annual Wage Review 2022-2023[79] decision, the Expert Panel continued the Commission’s previous approach of defining “low paid” as:
“… persons whose ordinary-time earnings are below two-thirds of median (adult) ordinary-time earnings of all full-time employees. There are two different measures of median earnings by which this threshold may be calculated:
(1) Based on ABS Characteristics of Employment (COE) data published in August 2022, the low paid threshold is $1016.67.82
(2) Based on ABS Employee Earnings and Hours (EEH) data published in May 2021, the threshold is $1062.00.83”[80]
The Expert Panel went on to say that the COE threshold would nominally encompass the minimum weekly rates for all classifications at C8 or below in the Manufacturing and Associated Industries and Occupations Award 2020, while the EEH threshold would nominally encompass minimum weekly rates for all classifications below C4. In the Award, the minimum rate for employees at Real Estate Employee Level 2 is currently $995.00 per week, meaning that employees at Level 2 and below may be considered “low paid” within the meaning of s. 134(1)(a).
I consider that the living standards of low paid employees covered by the Award will be positively impacted if Award provisions in relation to when they are working and are therefore entitled to payment, and reimbursement for the use of their private vehicles in the course of their employment, to carry out the duties they are required by their employer to perform, are clarified. In short, Award covered employees who are paid the minimum rate under the Award, and who are low paid, should not be required travel in their own time to a property to undertake work in relation to the sale or lease of that property and to bear the expense of operating their private motor vehicle in the course of their employment, where the employer requires them to use that motor vehicle. The variation I propose covers only excess time, being the travel exceeding that which the employee would undertake to attend the employer’s office or business premises, and the motor vehicle expenses in respect of that excess travel, rather than the total time expended by employees. This weighs in favour of varying the Award to address the issues identified by the Applicant.
It is convenient to consider ss. 134(aa) and (ab) together. I do not consider that a variation of the Award to address the matters raised by the Applicant will improve access to secure work across the economy and nor will it negatively impact access to secure work. Similarly, a variation to address the matters raised in the application will not assist or detract from considerations of gender equality in the workplace. These considerations are therefore neutral in the present case.
Section 134(1)(b) requires that I consider “the need to encourage collective bargaining”. I do not consider variations to address the issues raised by the Applicant would encourage collective bargaining and nor do I consider that collective bargaining would be discouraged. This is a neutral consideration. Section 134(1)(c) requires consideration of the “the need to promote social inclusion through increased workforce participation”. The focus of this objective is obtaining employment, and there is no evidence that workforce participation will be affected either positively or negatively by a variation to address the matters raised by the Applicant, and I also consider this matter to be neutral.
I consider that varying the Award to clarify its application in the circumstances identified by the Applicant promotes flexible modern work practices and the efficient and productive performance of work. Intuitively, measures encouraging employees to commence work at a property to carry out duties relating to the sale or leasing of that property, are beneficial to both the employee and the employer in terms of efficiency and productivity. It is counter-productive for employees to be required to travel from their homes to an office merely to start the clock on their working day and then to travel in paid time to a property to perform work. This consideration, encompassed in s. 134(d), weighs in favour of a variation to the Award. A variation to address the issues raised by the Applicant does not relate to the matters in s. 134(da) – additional remuneration for overtime, unsocial hours, work on weekends and public holidays or shift work – and this consideration is neutral.
In relation to s. 134(f), I do not consider that a variation of the Award to address the issues raised by the Applicant will impact on business, employment costs and the regulatory burden. The variations simply clarify provisions of the Award that employers should already be applying. The travel undertaken by employees including the Applicant, when required to commence work at a property for the purposes of performing work covered by the Award, is work and for casual employees counts as such for the purposes of the minimum engagement in clause 11.1 of the Award. Employees required to use their own motor vehicles to undertake such travel are entitled to the motor vehicle allowance in clause 17.2 of the Award. Further, for the reasons I set out in relation to s. 134(d), I am of the view that the proposed variation will have a positive impact, or at least will not negatively impact, productivity. This consideration weighs in favour of a variation to the Award.
Section 134(g) requires that I consider the need to ensure a simple, easy to understand, stable and sustainable modern award system. In my view, the arguments advanced by REEF in opposition to the application, including their change of position, indicates that the Award provisions which I have found entitle casual employees to payment for work and payment of motor vehicle allowance in the circumstances described by the Applicant, indicate that an Award variation is necessary to clarify the operation of those provisions. This weighs in favour of the proposed variation. I do not consider that the exercise of the modern award powers to vary the Award to deal with the issues proposed by the Applicant is likely to have any impact on employment growth, inflation and the sustainability, performance, and competitiveness of the national economy. As I have noted, the variation I propose covers only excess travel and associated expenses rather than all travel, as I do not accept that there is sufficient evidence in the present proceedings to justify a variation to encompass all travel.
Conclusion and proposal for variation
Having considered the evidence and submissions, and the relevant provisions of the modern awards objective, I consider it necessary to vary the Award to ensure that it makes clear when employees are working and the circumstances in which they are entitled to be paid motor vehicle allowances. The variations I propose are not extending the operation of the Award but simply clarifying its existing provisions. I consider that clarity is required given the positions of the parties including the change in the position adopted by REEF. I also consider the variations necessary to ensure that the Award provisions provide a fair and relevant safety net of terms and conditions in the context of the real estate industry and the work performed by Real Estate Employees. My provisional view is that the Award should be varied as follows.
The first variation I propose is to insert the following new clause 17.11:
17.11 Excess travelling
(a)If the employer requires the employee to start or finish work at a location other than the employer’s business or office premises, the employee must be paid for time reasonably spent by the employee travelling to or from the location which is in excess of the time normally spent by the employee in travelling between the employee’s usual residence and the employer’s business or office premises, on each occasion such excess travel is undertaken.
(b)Such excess time is to be treated as working time under clause 13 – Ordinary hours of work and rostering, or clause 19 – Overtime and is counted for the purposes of the minimum engagement for casual employees in clause 11.1, and paid at the ordinary rates prescribed in clause 14 or the overtime rates in clause 19, as appropriate.
(c)In addition to the payment for excess time spent travelling as provided in clause 17.11(a), if the employer requires the employee to use the employee’s own motor vehicle in the course of employment, the employee will be paid the applicable motor vehicle allowance in accordance with clause 17.2(b), 17.2(c) or clause 17.3 as agreed between the employer and the employee.
Secondly I propose a variation to clause 17.2(a), by inserting the underlined words, as follows:
(a)If the employer requires the employee to use the employee’s own motor vehicle in the course of their employment, including to undertake excess travelling as described in clause 17.11, the employee must be reimbursed for the use of their motor vehicle in accordance with clause 17.2(b), 17.2(c) or clause 17.3. Clause 17.2 does not apply to the use of a motor scooter or motor cycle.
A consequential variation will also be required to clause 16.7(e) to add clause 17.11 to the list of Award clauses that do not apply to commission-only employees.
Next steps
A draft determination to give effect to my provisional view is appended to this Decision. Interested parties are invited to comment on the proposed variations including proposals for alternative wording, by 4.00 pm AEDT on Monday 22 January 2024.
VICE PRESIDENT
| MA000106 PRXXXXX X |
| DRAFT DETERMINATION |
Fair Work Act 2009
s.158—Application to vary or revoke a modern award
REAL ESTATE INDUSTRY AWARD 2020
[MA000106]
| Real estate industry | |
| VICE PRESIDENT ASBURY | LOCATION, XX MONTH 2024 |
Application to vary a modern award – Real Estate Industry Award 2020 – travel allowance – start and finish times – excess travel – variation must be necessary to meet modern awards objective.
A. Further to the decision issued by the Fair Work Commission on 2 January 2024 [[2024] FWC 8], the above award is varied as follows:
By renumbering clauses 16.7(e)(v) to (vii) as clauses 16.7(e)(vi) to (viii).
By inserting clause 16.7(e)(v) as follows:
(v)Clause 17.11 — Excess travelling
By deleting clause 17.2(a) and inserting the following:
(a)If the employer requires the employee to use the employee’s own motor vehicle in the course of their employment, including to undertake excess travelling as described in clause 17.11, the employee must be reimbursed for the use of their motor vehicle in accordance with clause 17.2(b), 17.2(c) or clause 17.3. Clause 17.2 does not apply to the use of a motor scooter or motor cycle.
By inserting clause 17.11 as follows:
17.11Excess travelling
(a)If the employer requires the employee to start or finish work at a location other than the employer’s business or office premises, the employee must be paid for time reasonably spent by the employee travelling to or from the location which is in excess of the time normally spent by the employee in travelling between the employee’s usual residence and the employer’s business or office premises, on each occasion such excess travel is undertaken.
(b)Such excess time is to be treated as working time under clause 13 – Ordinary hours of work and rostering, or clause 19 – Overtime and is counted for the purposes of the minimum engagement for casual employees in clause 11.1, and paid at the ordinary rates prescribed in clause 14 or the overtime rates in clause 19, as appropriate.
(c)In addition to the payment for excess time spent travelling as provided in clause 17.11(a), if the employer requires the employee to use the employee’s own motor vehicle in the course of employment, the employee will be paid the applicable motor vehicle allowance in accordance with clause 17.2(b), 17.2(c) or clause 17.3 as agreed between the employer and the employee.
By updating the cross-references accordingly.
B. This determination comes into operation on XX Month 2024. In accordance with s. 165(3) of the Fair Work Act 2009 (Cth) this determination does not take effect in relation to a particular employee until the start of the employee’s first full pay period that starts on or after XX Month 2024.
VICE PRESIDENT
[1] Submission by Amay Paranahewa on 30 January 2023.
[2] Submission by Registered Real Estate Salespersons’ Association of South Australia on 15 February 2023 and 5 January 2023.
[3] Submissions by Real Estate Employers' Federation and Real Estate Employers' Federation of Western Australia on 15 February 2023 and 28 February 2023.
[4] Transcript of Proceedings on 16 January 2023 at PN20.
[5] Transcript of Proceedings on 16 January 2023 at PN38 and PN43.
[6] Transcript of Proceedings on 16 January 2023 at PN45-PN46.
[7] Transcript of Proceedings on 28 February 2023 at PN70.
[8] Transcript of Proceedings on 16 January 2023 at PN45, PN46, PN70 and PN74.
[9] Transcript of Proceedings on 28 February 2023 at PN85.
[10] Transcript of Proceedings on 28 February 2023 at PN117, PN225 and PN247-PN250.
[11] Transcript of Proceedings on 28 February 2023 at PN306-PN307.
[12] Amended application.
[13] Application.
[14] Amended application.
[15] Amended application.
[16] Amended application.
[17] Exhibit A5 at [2], [10]-[12] and [15]-[17].
[18] Exhibit A5 at [8] and [11].
[19] Exhibit A5 at [5].
[20] Exhibit A5 at [10].
[21] Exhibit A5 at [18].
[22] Exhibit A5 at [19]-[20].
[23] Exhibit A5 at [21]-[22].
[24] Transcript of Proceedings on 28 February 2023 at PN420.
[25] Transcript of Proceedings on 28 February 2023 at PN421.
[26] Correspondence by Registered Real Estate Salespersons’ Association of South Australia, 5 January 2023.
[27] Correspondence by Registered Real Estate Salespersons’ Association of South Australia, 5 January 2023.
[28] Submission by Registered Real Estate Salespersons’ Association of South Australia, 15 February 2023.
[29] Transcript of Proceedings on 28 February 2023 at PN342.
[30] Submission by Registered Real Estate Salespersons’ Association of South Australia, 15 February 2023.
[31] Submission by Registered Real Estate Salespersons’ Association of South Australia, 15 February 2023.
[32] Transcript of Proceedings on 28 February 2023 at PN426.
[33] Transcript of Proceedings on 28 February 2023 at PN431.
[34] Transcript of Proceedings on 28 February 2023 at PN345.
[35] Transcript of Proceedings on 28 February 2023 at PN310-PN324.
[36] Transcript of Proceedings on 16 January 2023 at PN20.
[37] Transcript of Proceedings on 16 January 2023 at PN38 and PN43.
[38] Submission by REEF, 15 February 2023 at [5].
[39] Submission by REEF, 15 February 2023 at [7].
[40] Haseldine v Blue Moon Catering Service, 28 March 1974.
[41] Submission by REEF, 15 February 2023 at [8].
[42] Submission by REEF, 15 February 2023 at [9].
[43] Submission by REEF, 15 February 2023 at [11].
[44] [2017] FWCFB 3541 at [399].
[45] Submission by REEF, 15 February 2023 at [12].
[46] Submission by REEF, 15 February 2023 at [13].
[47] Submission by REEF, 15 February 2023 at [14] and [15].
[48] Submission by REEF, 15 February 2023 at [17]-[19].
[49] Submission by REEF, 15 February 2023 at [22] and [23].
[50] Transcript of Proceedings on 28 February 2023 at PN397.
[51] Transcript of Proceedings on 28 February 2023 at PN404, PN405 and PN408.
[52] Transcript of Proceedings on 28 February 2023 at PN409-PN415; [2021] FWCFB 6075.
[53] Transcript of Proceedings on 28 February 2023 at PN392-394, PN404 and PN407.
[54] Transcript of Proceedings on 28 February 2023 at PN371.
[55] Transcript of Proceedings on 28 February 2023 at PN374.
[56] Transcript of Proceedings on 28 February 2023 at PN389.
[57] Transcript of Proceedings on 28 February 2023 at PN373.
[58][2017] FWCFB 3541 at [399].
[59] Submissions by REEF, 15 February 2023 at [12].
[60] Submissions by REEF, 15 February 2023 at [13].
[61] Submissions by REEF, 15 February 2023 at [14] and [15].
[62] Submissions by REEF, 15 February 2023 at [17]-[19].
[63] Submissions by REEF, 15 February 2023 at [22] and [23].
[64] Transcript of Proceedings on 28 February 2023 at PN397.
[65] [2022] FWCFB [7].
[66] [2020] FCAFC 123, 298 IR 50 at [65] per Griffiths and SC Derrington JJ at [65]; see also WorkPac Pty Ltd v Skene [2018] FCAFC 131, 264 FCR 536 at [197].
[67] Op. cit. at [29].
[68] Haseldine v Blue Moon Catering Service, 28 March 1974 (1973 No. 202).
[69] Citing the judgement of Bleby J in Lanyon.
[70] [2020] FWCFB 1837.
[71] Shop, Distributive and Allied Employees Association v National Retail Association (No 2) (2012) 205 FCR 227 at [35].
[72] (2017) 265 IR 1 at [128]; Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [41]–[44].
[73] [2018] FWCFB 3500 at [21]-[24].
[74] Edwards v Giudice (1999) 94 FCR 561 at [5]; Australian Competition and Consumer Commission v Leelee Pty Ltd [1999] FCA 1121 at [81]-[84]; National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [56].
[75] Shop, Distributive and Allied Employees Association v The Australian Industry Group [2017] FCAFC 161 at [33].
[76] National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [105]-[106].
[77] See National Retail Association v Fair Work Commission (2014) 225 FCR 154 at [109]-[110]; albeit the Court was considering a different statutory context.
[78] See generally: Shop, Distributive and Allied Employees Association v National Retail Association (No.2) (2012) 205 FCR 227.
[79] [2023] FWCFB 3500.
[80] [2023] FWCFB 3500 at [89].
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