SI Realty Pty Ltd T/A Sydney International Realty

[2014] FWCA 6841

[2014] FWCA 6841

FAIR WORK COMMISSION

DECISION

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

SI Realty Pty Ltd T/A Sydney International Realty
(AG2014/8826)

SYDNEY INTERNATIONAL REALTY ENTERPRISE AGREEMENT 2014

Real estate industry
COMMISSIONER BULL	SYDNEY, 30 SEPTEMBER 2014

Application for approval of the Sydney International Realty Enterprise Agreement 2014.

[1] An application has been made for approval of an enterprise agreement known as the Sydney International Realty 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.

[2] On 16 September 2014, the Commission alerted the Applicant to concerns it had with respect to the Agreement. In particular, the concerns related to annual leave, ordinary span of hours, meal allowance and rates of pay.

[3] Correspondence was received from the Applicant on 19 and 22 September 2014.

Undertakings

Annual leave

[4] Upon request from the Commission, the Applicant has provided an undertaking with respect to clause 70 - Annual Leave Entitlements, and in particular, sub clause 70.2, that annual leave will accrue progressively during a year of service according to the employee’s ordinary hours of work, as per s.87(2) of the Act.

Ordinary span of hours

[5] With respect to Part 7 - Clerical employees, and in particular, sub clause 54.2, the Commission noted that the ordinary span of hours for clerical employees on a Saturday was greater than the ordinary span of hours under the Clerks - Private Sector Award 2010 (the Clerks Award), being the relevant modern award (for clerical employees engaged under the Agreement) for the purpose of the better off overall test.

[6] The Applicant has provided an undertaking with respect to sub clause 54.2(b) that the ordinary span of hours for clerical employees on a Saturday will be 7:00am to 12:30pm.

Meal allowance

[7] In its correspondence to the Applicant, the Commission noted that clause 59.2 - Meal allowance, provides a meal allowance to Clerical employees, which is less than the meal allowance provided under the Clerks Award.

[8] The Applicant has provided an undertaking with respect to sub clause 59.2(a) that a clerical employee required to work for more than one and a half hours of overtime without being given 24 hours notice after the employee's ordinary time of ending work will be either provided with a meal or paid a meal allowance of $14.35. Where such overtime work exceeds four hours a further meal allowance of $11.49 will be paid.

Rates of pay

[9] The Commission advised the Applicant that the percentage of the adult wage for each junior age group at clause 62 - Juniors, was less than the percentage of the adult wage provided under the Clerks Award. Further, the clause provides that the percentage for juniors aged 16 years is 100%.

[10] The Applicant has provided an undertaking that the following percentages will apply to junior employees:

Age	% of Adult wage
Under 16 years of age	45
16 years of age	50
17 years of age	60
18 years of age	70
19 years of age	80
20 years of age	90
21 years of age	100

[11] With respect to Appendix 2 - Minimum wage rates, the Commission noted that the rates of pay for all classifications were the same rates of pay provided under the Real Estate Industry Award 2010 (the Real Estate Award) and the Clerks Award. The employer in its Form F17 - Employer’s statutory declaration in support of an application for approval of an enterprise agreement, had declared that the Agreement did not contain any terms or conditions that were more beneficial than the equivalent terms and conditions in the relevant modern awards.

[12] Section 193(1) of the Act states:

“193 Passing the better off overall test

When a non greenfields agreement passes the better off overall test

(1) An enterprise agreement that is not a greenfields agreement passes the better off overall test under this section if the FWC is satisfied, as at the test time, that each award covered employee, and each prospective award covered employee, for the agreement would be better off overall if the agreement applied to the employee than if the relevant modern award applied to the employee.

(My emphasis)

[13] As the rates of pay under the Agreement are the same as the relevant modern awards and a number of other terms and conditions appeared to be equivalent to the terms and conditions under the relevant modern awards, the Applicant was asked to advise the Commission how employees would be better off overall under the Agreement, which is a higher standard than just receiving the equivalent terms and conditions as provided under the Award.

[14] I note that the Agreement provides for commission with respect to employees engaged as sales employees. The Applicant has provided an undertaking to increase the rates of pay in relation to clerical employees, resulting in employees being better off overall under the Agreement.

[15] The undertakings are taken to be a term of the Agreement. A copy of the undertakings is attached at Annexure A.

[16] Pursuant to s.190(4) of the Act, the employee bargaining representative has been made aware of the undertakings provided. The employee bargaining representative has not advised of any concerns with the undertakings provided.

[17] The undertakings are not so substantial that if asked to vote again the employees who voted would not approve the Agreement. I am therefore satisfied that the undertakings do not result in a substantial change to the Agreement as per s.190(3)(b) of the Act.

[18] Having considered the undertakings provided by the Applicant, I am satisfied that employees are better off overall under the Agreement.

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

[20] The Agreement is approved. In accordance with section 54(1), the Agreement will operate from 7 October 2014. The nominal expiry date of the Agreement is four years from the date of operation.

[21] This decision is to be brought to the attention of the employees.

COMMISSIONER

Annexure A

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