When the Gillard government’s Fair Work Act delivered the Modern Award initiatives in 2009, the real estate award was a collaborative construct by industry players around the nation, including state-based Real Estate Employer groups and some eastern state-based unions. The resultant “consent” Award was somewhat remarkable in that some states, namely New South Wales, Queensland and South Australia, had different state-based awards, with the remainder of the states and territories fundamentally award-free. In order to have the new modern award work at the national level, several transitional provisions were included in the award with a five-year lifespan, provisions that applied to certain states and not others all of which expired on December 31 last year.
Most contentious of these transitional provisions is Schedule E of the award whereby contracts of employment were required to be registered, for a fee, with the Employer Group and union in Queensland, New South Wales and South Australia, states whereby registration was a requirement of their state-based awards pre-2009. From December 31, it will no longer be a requirement to register employment agreements. Since the award commenced, the Queensland and NSW union joined to form the Australian Property Services Association (APSA) who were keen to retain the current registration of employment contract system in their states beyond 2014. The union’s motivation comes from the fact that around 90 percent (around $400,000 to the Queensland branch of APSA in 2013 for example) of their revenue comes from the fees payable by employers and their staff upon registration. Upon the end of the transitional provisions of the Award, there can be no state-based differences in the award, therefore any registration system would have to apply nationally after January 1, 2015.
Union membership is low relative to total industry participation. For example, Queensland membership was only at 212 in 2013. By comparison, the Real Estate Employer’s Federation of WA has 413 members in a state where there is no union representation whatsoever. There is clearly an appetite for proactive compliance by employers in that state.
Last November, ASPA appeared before the Full Bench of the Fair Work Commission arguing for the expansion of the registration system for it to apply nationally from January 1. They proposed that a national registry be set up and run by the union whereby every employer of a commission-only salesperson in Australia would be required to register their private employment contract with the union at a cost of $77 for each new contract. They argue that such a requirement “ensures compliance” with the obligation under the award to have employment agreements reduced to writing. The Fair Work Act (FWA) also requires every employee in the nation to have written employment agreements. No other industry or award requires an employer to register a employment agreement with a union.
In handing down their decision on the 23rd December last year the Commission found that there was no evidence to demonstrate that the Award failed to provide a proper and fair remuneration safety net in WA, Vic, Tas, ACT and NT and so a registration system is not necessary. Further, the Commission said the extension of Schedule E (which was consensual) to non-consensual parties, the burden of the obligations involved on employers, the monopoly held by APSA on the registration system and the proposed fee were likely to be contrary to the modern awards objective contained in the Act. The union was not able to demonstrate that our industry suffers widespread disputation between employers and employees nor does it have a broad history of non compliance with the award or FWA. It would appear that the sole purpose of APSA’s push to ensure registration continues is to maintain the payment of a fee that ensures its very survival.
Interestingly, the employer groups in Queensland and New South Wales supported APSA’s claim to have registration-apply nationally after December 31.