Before employment commences, a certificate of registration must be obtained from the Office of Fair Trading. Employees are governed by the Property Stock and Business Agents Act and it’s regulations (a copy of the act can be viewed on line by visiting http://www.austlii.edu.au). Click on New South Wales, and then New South Wales Consolidated Acts.
Employees are covered by the Real Estate Industry Award 2010 - see below.
It is also a requirement under the award that an employee must have a written agreement that is registered with both REA NSW (ourselves) and the Real Estate Employers' Federation (REEF) - see below.
Real Estate Industry Award 2010 – Registration of Written Agreements – Commission, Bonus & Incentive Payment Arrangements
What is Agreement Registration?
In order to preserve the integrity of commission, bonus & incentive payment arrangements between employers and their employees, the Real Estate Industry Award 2010 makes it compulsory that such arrangements be:
- in writing
- registered with third parties that are independent of the employee-employer relationship.
In NSW the independent third parties are the registered industrial organisations – the Real Estate Association of NSW (ourselves) and the Real Estate Employers' Federation.
Visit www.fwa.gov.au and download the Real Estate Industry Award 2010.
Does REA NSW have any authority to request this information?
Yes. Such authority is given by the Real Estate Industry Award 2010, which was approved by the Full Bench of Fair Work Australia under the Fair Work Act 2009.
Who needs an agreement registered?
Employees covered by the Real Estate Industry Award 2010 need to have an agreement registered, that is: Licensee in Charge (if an employee), Salespersons, Sales Associates, Property Managers, Property Associates, Strata/Community Title Management and Associates.
Do clerical or administration staff need to have an agreement registered?
No, provided they primarily perform clerical and administration duties.
Do the owners or principals of the business need to have an agreement registered?
Yes, if they are also employees of the business. Otherwise, no.
Do partners in the business who receive a weekly wage or salary need to have an agreement registered?
Yes, if they are also employees of the business. Otherwise, no.
Do family members need to have an agreement registered?
Yes, if they are employees of the business. Otherwise, no.
Do contractors need to have an agreement registered?
The question as to whether a person is a contractor or employee is something that all parties should be very wary about. Just because a person provides an ABN number and supplies a Tax Invoice does not automatically make that person a contractor.
Employers have been prosecuted for employing persons under such arrangements when it is clear that the person is an employee and not a contractor. We suggest that parties seek comprehensive advice from a specialist workplace relations lawyer regarding such matters, and not just rely on an accountant or suburban solicitor’s view.
The Federal regulator (the Fair Work Ombudsman) has published information regarding contractors vs. employee and sham contracting - please visit:
Fair Work Ombudsman - Sham Contracting
Is the registration of agreements something new?
No, the requirement to register agreements and previously, Letters of Appointment (LOAs) has been in place in NSW for over 30 years.
What happens if I don’t register agreements?
Failure to register agreements is a breach of the award and as such employers can be prosecuted for this breach. A penalty of $33,000.00 for corporation or $6,600.00 for individuals can be applied to employers if found guilty.
What are the fees and who are they payable to?
The administration fee is $110.00 (including $10.00 GST) per employee per agreement. One half of administration fee ($55.00, including $5.00 GST) is payable to the “Real Estate Association of NSW” and one half to the “Real Estate Employer’s Federation”.
Where do I send the documentation?
Send two copies of each employee’s agreement, and the administration fee cheques, to:
The Real Estate Employers’ Federation
Level 6
99 Bathurst Street
SYDNEY NSW 2000
Do I have to do this each year?
No, registration of your employee’s agreement only needs to be done once, when the employee commences work. You must register the documentation when a new employee commences within 14 days.
Do I have to register any alteration to an employee’s arrangements and is a new fee payable?
Yes, you are required register any variation to commission, bonus or incentive payment arrangements. No additional fee is payable.
On 4/12/2009 the Australian Industrial Relations Commission (now Fair Work Australia) approved the Real Estate Industry Award 2010. This award:
- is based on a 'consent' award developed by the real estate unions and a real estate employers' consultative group during 2009
- operated from 1 January 2010
- covers those employees engaged in property management, property sales or strata & community title management
- applied to employees of corporations from 1 January 2010
- applied to employees of non-corporations from February 2011
- must be read in conjunction with the new National Employment Standards (NES).
The award adopts the minimum provisions of the new federal workplace relations legislation, but just as importantly, is finely-tuned to the needs of the real estate industry.
Download:
Schedule E to the Real Estate Industry Award 2010 | Sets out the legal requirement for agreement registration
Real Estate Industry Award 2010 (as varied)
Deputy Prime Minister's Letter
Please Note:
The Real Estate Industry Award 2010 applied to corporations from 1 January 2010, and to private (non-corporation) employers from February 2011.
Mandatory Registration of Agreements
Employees should particularly be aware of the mandatory requirement for all employers to make and register with REA NSW written agreements with their property sales, property management and strata & community title management employees.
Please see frequently asked questions.
Agreement Suppliers:
Agreements by REPSA | Real Estate Personnel Solutions Australia Pty Ltd
Please Note:
To view/print the award you'll need Adobe Reader:
The question as to whether a person is a contractor or employee is something that all parties should be very wary about. Just because a person provides an ABN number and supplies a Tax Invoice does not automatically make that person a contractor.
Employers have been prosecuted for employing persons under such arrangements when it is clear that the person is an employee and not a contractor. We suggest that parties seek comprehensive advice from a specialist workplace relations lawyer regarding such matters, and not just rely on an accountant or suburban solicitor’s view.
Although there are many circumstances where it is lawful for a business to engage an independent contractor, the law is there to protect employees from being treated as an independent contractor when they should in fact be regarded as an employee.
The Federal regulator (the Fair Work Ombudsman) has published information regarding contractors vs. employee and sham contracting - please visit:
