RWPER Pty Ltd T/A Ray White Peregian

[2014] FWCA 4493

FAIR WORK COMMISSION

DECISION

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

RWPER Pty Ltd T/A Ray White Peregian
(AG2014/1356)

RAY WHITE PEREGIAN ENTERPRISE AGREEMENT 2014

Real estate industry
COMMISSIONER BULL	PERTH, 7 JULY 2014

Application for approval of the Ray White Peregian Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Ray White Peregian 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 RWPER Pty Ltd, trading as Ray White Peregian, applied for the approval of the Ray White Peregian Enterprise Agreement 2014. The application was made under section 232 of the Fair Work Act 2009. The applicant sought to have the agreement, which was negotiated with the Real Estate Institute of Queensland and the Real Estate Institute of Queensland Employees' Union, recognised as a registered agreement. The dispute arose because of objections to the agreement by a party claiming to be an employee of the applicant.

The legal issues before the Commission involved determining whether the agreement met the requirements for approval under the Fair Work Act. Specifically, the Commission had to consider whether the agreement was a genuine enterprise agreement, whether it had been negotiated in good faith, and whether it satisfied the provisions of the Act, including the "better off overall test" (BOOT). Additionally, the Commission had to assess whether the applicant was indeed an employer of the employee who had objected to the agreement.

The Fair Work Commission, after reviewing the evidence and submissions from both parties, concluded that the agreement was a genuine enterprise agreement negotiated in good faith and met the requirements of the Act. The Commission found that the applicant was the employer of the objecting employee and that the agreement was in the best interests of the employees, satisfying the BOOT. The objections raised by the employee were considered and found not to be sufficient to invalidate the agreement.

Accordingly, the Fair Work Commission approved the Ray White Peregian Enterprise Agreement 2014 as a registered agreement under section 173 of the Fair Work Act 2009. The decision was made in light of the evidence presented and the legal framework governing enterprise agreements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established