PN1

THE VICE PRESIDENT: So good morning, everybody. It's Vice President Hatcher here. So I'll take the appearances.

PN2

Now, Mr Ward, you're appearing for Australian Business Lawyers and the Real Estate Employers' Federation, is that right?

PN3

MR WARD: Your Honour, I appear for the Real Estate Employer's Federation which is the first applicant. And the Real Estate Employers' Federation, South Australia and Northern Territory who's the second applicant. And I appear today with Mr Brian Wilcox, who's the CEO of the Real Estate Employers' Federation.

PN4

THE VICE PRESIDENT: All right. And Ms Bisbal, where do you fit into this?

PN5

MS BISBAL: Yes, your Honour. I'm from the Real Estate Employers' Federation of South Australia and the Northern Territory. Mr Nigel Ward is Director of (indistinct).

PN6

THE VICE PRESIDENT: All right. Thank you.

PN7

All right. So just staying on and employers' side. Mr Lilleyman and Mr Moss, you appear for the Chamber of Commerce and Industry of Western Australia and the Real Estate Employers' Federation of Western Australia, is that correct?

PN8

MR LILLEYMAN: Yes, your Honour, that's correct. This is Mr Lilleyman and I do appear with Mr Moss.

PN9

THE VICE PRESIDENT: Thank you.

PN10

And Mr Clarke, you appear for the Real Estate Sales Persons' Association of South Australia?

PN11

MR CLARKE: Yes. With Mr - pardon me, Nathan Fox.

PN12

THE VICE PRESIDENT: And Mr French, you appear for Australian Property Services Association?

PN13

MR FRENCH: For the Australian Property Services Association.

PN14

THE VICE PRESIDENT: Fine. Thank you.

PN15

All right. Mr Ward, so what's the position? I've seen the latest documents that you (indistinct) into Mr (Indistinct) file.

PN16

MR FRENCH: The position with the Property Services Association, Vice President, is that it's absolutely defunct and they're in the process of deregistration.

PN17

However, we're here in a voluntary capacity in support of Real Estate Sales Persons' Association of South Australia with a lot of history behind us.

PN18

THE VICE PRESIDENT: Yes. All right. Thank you.

PN19

Mr Ward?

PN20

MR WARD: Vice President, if I could bring you briefly up to date with our discussions and then indicate how we ought to proceed in the matter, if that would be satisfactory?

PN21

So I think we had previously corresponded, as requested by the Commission, giving an update and those discussions essentially, have had two primary areas of focus. One has been between Mr Wilcox and Mr Clarke's organisation, the RESA and I'll come to that.

PN22

I've been talking separately to the Australian Council of Trade Unions and the SDA who expressed an interest in the matter. Can I bring you up to date with those two areas of discussion and then explain how we ought to proceed? And I say that in the knowledge that, as far as we are aware, the matter will not move without dissent.

PN23

The discussions with the ACTU and the SDA occurred last week. A number of issues were raised by both of them that it might be reasonably be said, were not directly relevant to the application but related more broadly to activity in the industry concerning the JobKeeper Allowance. We corresponded to the ACTU in relation to those matters and we've had a further phone call with the ACTU in relation to those matters.

PN24

The position they put to us, at this stage, is somewhat complicated. They've indicated that while they didn't have a substantive objection to the application, their position wasn't one that could be articulated, at this stage, formally, as they had a variety of interests in other matters that they felt needed to be dealt with first. And I think that's a reference to the Fast Food Industry Award matter.

PN25

THE VICE PRESIDENT: Yes.

PN26

MR WARD: So that's sort of where we got to with them. I must say, it was a very constructive and cordial discussion but that's where we got to with them.

PN27

My understanding is that the discussions with the RESA have not produced a consent position. And if one reviews various correspondence from the RESA they seem to be suggesting that various other amendments should be made to the Award.

PN28

I'm simply going to say this about that party. If they want to apply to vary the Real Estate Award then they should do so. Importantly, this is no longer a four-yearly review proceeding, this is a 157 proceeding.

PN29

So if a person wants to actually suggest the Award needs to be varied then that'll have to be put on in the proper way. I frankly, don't know if they have standing to do that but if the RESA want to put an application to vary, well, they need to do so.

PN30

I'm not currently aware of where the Western Australian Chamber of Commerce and Industry sit. Perhaps if Mr Moss can confirm that. Our position is very simple. We've done our best to reach some accord with persons who say they have an interest on what is an entirely contained and discrete matter.

PN31

The application has simply been put on to try and ensure that employers and employees currently involved in commission-only arrangements don't find themselves inadvertently and unfortunately, disqualified from those arrangements because of the imposition of the pandemic and the Government response to contain that pandemic, the impact that it's had on the real estate industry.

PN32

But we want to get on with the matter and what we would seek today, your Honour, is a direction for the filing of evidence. Now, various matters at the moment in the Commission are being moved with expedition, understandably. And we're currently confronted in various matters with timetables in the days, not the weeks, to put evidence on. But what we were proposing was this.

PN33

And we think it would be not unreasonable that parties file simultaneously. Our application is that directions be made that any party wishing to file evidence for or against the application do so in four weeks. We then seek a direction that a further directions hearing be held. At that stage, any party who wishes to put anything further in terms of the putting on of cases, can put it, including if there's nothing further to be put, a determination of a hearing date.

PN34

But we think that given how contained the matter is and given the very real understandable need for some level of expedition given what's going on, we think four weeks is more than sufficient for parties to simultaneously file any evidence for or against the application.

PN35

I don't really think there's much benefit in trying to conciliate the matter. I think it's best that it's - we just get on and get the case on and move from that.

PN36

If the Commission pleases.

PN37

THE VICE PRESIDENT: And Mr Ward, just one question about the discussion process.

PN38

The Real Estate Institute? Have you had discussions with that body?

PN39

MR WARD: Your Honour, I haven't. Mr Wilcox is on the phone. I don't know if Mr Wilcox can answer that directly, but on behalf of our clients we have not, no.

PN40

THE VICE PRESIDENT: Well, it's only because they keep corresponding with the President about issues about this Award and they'd appeared not - we'd like them to actually participate in these proceedings.

PN41

But anyway, Mr Walsh, can you assist us with that?

PN42

MR WILCOX: Your Honour, I've made the Real Estate Institute of Australia aware of our application and at this stage, they haven't indicated that they're going to put their own application forward. I think they're waiting to see the outcome of how we get on.

PN43

THE VICE PRESIDENT: All right. Okay. All right. Thank you.

PN44

Well, I might, Mr Lilleyman and Mr Moss, what's your attitude towards the application?

PN45

MR LILLEYMAN: Yes, thank you, your Honour. It's Mr Lilleyman here. Look, we don't object to the application that's been made. We had some initial concerns in relation to the employees who had an end or review date after the 1 April.

PN46

But those concerns have now been addressed in the most recent draft determination that's been put forward. So on that basis, yes, we have not objections to what's being put forward now and we do oppose that - the 16 variations that have been put forward by the RESA.

PN47

THE VICE PRESIDENT: All right. Thank you.

PN48

All right. Mr Clarke? In respect of the revised application that's being made, what's your organisations attitude to that?

PN49

MR CLARKE: Well, your Honour, just on its own, in a perfect world, we would be somewhat sympathetic towards it. The trouble is, the world has changed a lot since the application and even the revised application has come through which relates to issues surrounding the payment of the JobKeeper Allowance and the different view that we hold as to how it should be approached as against a number of employers that we've dealt with, at a local level.

PN50

And from what we understand the big employer bodies are suggesting that employers are able to - what they're able to do within the context of the Coronavirus legislation or the JobKeeper legislation, I should say. So ‑ ‑ ‑

PN51

THE VICE PRESIDENT: Mr Clarke, what's the connection between that issue and the application?

PN52

MR CLARKE: Well, the - in a sense, your Honour, they are disconnected but also connected in that we would be before with an application, in any event, given what we now know is happening within the industry.

PN53

And so therefore, we would be seeking the assistance of the Commission by arbitration, if necessary, to correct what - not to give an advantage to our members or the employees of this industry, but to put them in no different position than any other employee where the employer is in receipt of JobKeeper payments, subsidy payments.

PN54

THE VICE PRESIDENT: Well, again, Mr Clarke, I'll ask you again.

PN55

I mean, I understand the point you're raising about that issue, but I'm not getting the connection between that and this application.

PN56

MR CLARKE: Well, we'd like that all to be dealt with at the one hearing, your Honour.

PN57

THE VICE PRESIDENT: Well, I'm just trying to find out what the basis of the opposition to Mr Ward's application is.

PN58

MS ISMAIL: Your Honour, can I announce myself? Sophie Ismail from the ACTU. I got on the line a little bit late, having some issues with the technology, so I apologise for that.

PN59

THE VICE PRESIDENT: I understand.

PN60

MS ISMAIL: But if I can clarify the ACTU's position it might provide some assistance?

PN61

THE VICE PRESIDENT: Yes.

PN62

MS ISMAIL: Look, we - Mr Ward was right to some extent. We are interested to see the outcome of the - how the Fast Food application proceeds, particularly around the issue of necessity.

PN63

But we do share the other employee representatives' concerns about issues related to the implementation of the JobKeeper scheme. And we would say the link between the two is that it goes directly to the necessity of this variation and it goes to whether or not the variation would be consistent with the Modern Award's objectives.

PN64

And we do have some concerns that a valid issue has been raised and we're not sure how that's playing out in the industry and whether or not this variation is appropriate, in the circumstances. I'm also appearing on behalf of the SDA, I should clarify that.

PN65

So that's our position on it. We don't - we're not minded to consent to it because of those substantive concerns with it. And also we are interested to see how the Full Bench responds to the other variations in front of it, at the moment, before we give it some more thought.

PN66

THE VICE PRESIDENT: Well, I mean, it seems to me that there may indeed be an issue about how the JobKeeper payments relate to commission-only salespersons, that it may be the case that some arbitration about the fixed (indistinct) power to do so may be necessary.

PN67

But again, I can't see the connection between that and an application which seeks to temporarily, in effect, suspend a regime which, if applied in full vigour, might cause commission-only salespersons to be, as it were, thrown off that system, as a result of an artificial period now coming to an end where auctions and home inspections could not occur.

PN68

MS ISMAIL: Well, I think the other employee groups (indistinct) are in a better position to talk about the detail but for us, it goes to the disadvantage that it might cause those employees. And in the context and the operation of the JobKeeper scheme and how that is playing out in the sector, is entirely relevant to whether or not we'd support the variation.

PN69

THE VICE PRESIDENT: But it seems to me that if somebody's (indistinct) that you can't stay on commission-only arrangements then the real likelihood in the current environment would be that they would then lose their job.

PN70

MS ISMAIL: Well, it depends on how (indistinct) you were.

PN71

THE VICE PRESIDENT: Because they cant (indistinct) on a wage. So yes.

PN72

MS ISMAIL: Yes. Well, perhaps (indistinct).

PN73

THE VICE PRESIDENT: Well, Mr Clarke, do you want to say something more about it?

PN74

MR CLARKE: Well, the connection is how the employers will apply either the JobKeeper payment, not only to their fully-waged credits salespeople, but also commission-only.

PN75

We are being advised by our commission-only and I only got a call from one yesterday, who's employer, in a large franchise, has told this commission-only person, look, we're only going to pay you now, not fortnightly, that is, commissions, as they come due. And we're going to pay you monthly because we don't want you to build up a big credit, no, sorry, debit, in terms of JobKeeper payments.

PN76

Now, that's not how it's supposed to work and I think Mr Wilcox agrees with me on that point. But the fact is this is how employers on the ground are doing things and the only way - and this will only be exacerbated by more commission-only employees coming into the business.

PN77

THE VICE PRESIDENT: But the application isn't concerned with entry of persons into commission-only, is it?

PN78

MR CLARKE: Well, it will, in the sense that the waged employees will be more likely, over the coming months, put under pressure to go to commission only if the economic impacts of the Coronavirus are as severe as it would tend to suggest from the evidence, or if I can term it that way, that's attached to the original application by the employers.

PN79

And yes, we firmly do (indistinct) that the impositions by the Governments, in terms of open inspections, auctions and things of this nature, have had a major impact on sales. And that, of course, means many employers looking to cut costs.

PN80

The issue of commission-only employees, without guaranteed any hourly rate of pay at all, is overwhelming compared to keeping employees on a full, weekly wage.

PN81

THE VICE PRESIDENT: Well, I understand, I don't - Mr Clarke ‑ ‑ ‑

PN82

MR CLARKE: (Indistinct)

PN83

THE VICE PRESIDENT: So just hold on, please, Mr Clarke?

PN84

I understand the point you're making but again, in any economic pressure to put people into commission-only payments does not appear to me to have anything to do with the application.

PN85

MR CLARKE: Well, your Honour, the situation boils down to this. The issues being raised by Mr Ward as to whether or not in terms of because our association is registered Federally, well, of course, under the Act, it can be simply done, an application can be made by Mr Fox, who's an employee in the industry.

PN86

And there are what we would say, that the paperwork we've put in already suggests, even though if it's not in the correct form, that the powers of the Commission to - under section 586 to waive format and any defects and things of this nature insofar as a formal application is required, can be dispensed with, if the Commission so decides. And the matter's on foot.

PN87

MR FOX: Mr Vice President?

PN88

THE VICE PRESIDENT: Yes. Who's this?

PN89

MR FOX: If I - Nathan Fox. Can I just add in support of Ralph's submission? Put simply, a commission-only salesperson, if they don't earn a cent between now and six months, they walk away with $3,500 per month, non-debatable.

PN90

A wage earner on a debit/credit, they walk away with a debit of $20,000. That's the anomaly. Put simply.

PN91

THE VICE PRESIDENT: And but again, what's the connection with Mr Ward's application?

PN92

MR CLARKE: Well, your Honour, the matter has come before the Commission. We're saying, well, okay, while we're dealing with their application, we would like these other matters dealt with at the same time.

PN93

THE VICE PRESIDENT: Well, you can have the matters dealt with if you make an application.

PN94

But I'm trying to deal with a matter that's before the Commission, that's Mr Ward's application. I'm trying to understand what is the objection to Mr Ward's application?

PN95

MR CLARKE: Well, what we're concerned about is if we don't get on to it now, in terms of the JobKeeper issues, it'll get lost in the time.

PN96

I mean, there's nothing stopping the Commission from, if you like, awarding what they want but then getting on and hearing - and treating what our submissions and the documents we've already forwarded, as an application to be dealt with, without having to go through the rigmarole of filing a section 157, getting another hearing dates and all that sort of stuff.

PN97

THE VICE PRESIDENT: (Indistinct). I won't press for any further matters.

PN98

So Mr Ward, I think it's your call that the matter can't be usefully conciliated is correct. It can't. So again, so the direction you seek is for all parties to file any evidence with respect to your application within four weeks and then another directions hearing, is that correct?

PN99

MR WARD: Yes, your Honour. Yes, it is.

PN100

THE VICE PRESIDENT: Does anyone oppose that direction being made?

PN101

MR CLARKE: I just wanted to find out from Mr Ward, well, that is, in terms of admissions by parties - by my organisation, for example, is he or is his clients going to take a position that the amendments that we've sought are not properly before the Commission and should be ignored?

PN102

THE VICE PRESIDENT: Well, that's a matter for me to determine.

PN103

As far as I'm concerned, if you want to make an application to vary the Award, you'll need to make an application. The only matter that's currently before the Commission is the application filed by Australian Business and REEF and that's the matter I'm going to program.

PN104

If your organisation wishes to make an application, it needs to do so in the normal course and that will be programmed as well. How soon can you do that, Mr Clarke?

PN105

MR CLARKE: Pretty bloody quick, I think.

PN106

THE VICE PRESIDENT: All right. All right.

PN107

Well, if you file it quickly then we can try to set up some parallel directions. But unless there's anything further, I propose to accede to Mr Ward's request, that is, in respect of his application, evidence to be filed perhaps without an outline of submissions, Mr Ward?

PN108

MR WARD: Yes, your Honour, yes. Certainly.

PN109

THE VICE PRESIDENT: To be filed within four weeks by all parties.

PN110

And then on a date to be advised, shortly after that I'll hold a further directions hearing.

PN111

MR WARD: Thank you, your Honour.

PN112

THE VICE PRESIDENT: And Mr Clarke, if your organisation wishes to file an application, the sooner it can do so I can endeavour to set up some parallel directions so that the matters can move in tandem with each other.

PN113

MR CLARKE: Thank you, your Honour. I'll be on to it.

PN114

THE VICE PRESIDENT: Yes. All right. Thank you.

PN115

Does any party wish to raise anything further?

PN116

No? All right. All right. Well, thank you for your participation this morning. Directions and a further listing will be issued later today. Thank you.

PN117

MR WARD: Thank you, your Honour.

PN118

MR CLARKE: Thank you, your Honour.

PN119

MS ISMAIL: Thank you, your Honour.

PN120

MR LILLEYMAN: Thank you, your Honour.

PN121

THE VICE PRESIDENT: Thank you.

ADJOURNED INDEFINITELY [10.23 AM]