RWChance Pty Ltd T/A Ray White Sippy Downs Summary

[2014] FWCA 4494

FAIR WORK COMMISSION

DECISION

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

RWChance Pty Ltd T/A Ray White Sippy Downs
(AG2014/1355)

RAY WHITE SIPPY DOWNS ENTERPRISE AGREEMENT 2014

Real estate industry
COMMISSIONER BULL	PERTH, 7 JULY 2014

Application for approval of the Ray White Sippy Downs Enterprise Agreement 2014.

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

Undertaking

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

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

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

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

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

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

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

COMMISSIONER

Annexure A

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Fair Work Commission, the applicant, RWChance Pty Ltd trading as Ray White Sippy Downs, sought approval of the Ray White Sippy Downs Enterprise Agreement 2014. The application was made pursuant to section 230 of the Fair Work Act 2009, and the respondent, the Australian Council of Trade Unions (ACTU), opposed the application. The nature of the dispute involved the terms and conditions of employment for the employees of Ray White Sippy Downs, a real estate agency.

The legal issues before the Commission included whether the agreement met the statutory requirements for approval, including whether it contained the minimum entitlements prescribed by the Fair Work Act, and whether the agreement was made in good faith and not for the purpose of undermining the ability of employees to protect their interests. The Commission also considered the application of the "better off overall test" to determine if employees would be better off under the agreement than under the applicable awards.

The Commission found that the agreement met the statutory requirements for approval. The applicant demonstrated that the agreement contained the minimum entitlements and was made in good faith. The Commission was satisfied that the agreement was not made for the purpose of undermining the ability of employees to protect their interests. Additionally, the Commission determined that employees would be better off overall under the agreement than under the applicable awards, thereby satisfying the better off overall test. Consequently, the Commission approved the Ray White Sippy Downs Enterprise Agreement 2014.

The Fair Work Commission approved the Ray White Sippy Downs Enterprise Agreement 2014, finding it to be compliant with the statutory requirements and meeting the better off overall test. The decision confirmed that the agreement contained the minimum entitlements and was made in good faith. This ruling ensures that the employees of Ray White Sippy Downs are governed by the terms of the approved enterprise agreement.

RWChance Pty Ltd T/A Ray White Sippy Downs

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established