Contract of Employment
Property Sales Associate/
Property Sales Representative/
Property Sales Supervisor
(Debit/Credit)
This is a draft contract of employment. Should your business wish to enter into a contract with an employee, we recommend that
the document be tailored to suit the particular needs of your business.
Should your business wish to amend any part of this document we encourage you to contact CCI to use its consultancy services.
Neither the Real Estate Employers’ Federation of WA (REEFWA) nor the Chamber of Commerce and Industry of WA (CCI) will
accept any responsibility for any loss occasioned to any person acting or refraining from acting as a result of material contained
in this document.
DEBIT / CREDIT CONTRACT OF EMPLOYMENT
1.
OPERATION
1.1
This contract shall be binding upon the Agent and the Employee specified in Appendix A.
1.2
The contract will commence operation from the date specified in Appendix A, or in the case of a
new employee, upon commencement of employment.
1.3
Any legislation (including the National Employment Standard), award, policy, procedure or other
document referred to in this document is not incorporated into the contract and does not form
part of it.
1.4
This contract forms the entire agreement between the employee and the Agent concerning the
employee’s employment from the date of this document.
1.5
This contract may only be varied by written agreement between the employee and the Agent.
2.
DEFINITIONS
2.1
For the purposes of this contract and unless the contrary appears, the following definitions shall
apply:
a)
“Agent” shall mean the Agent party to this contract and as defined in the Act.
b) “Award” shall mean the Real Estate Industry Award 2010
c)
“GST” shall mean the Goods and Services Tax.
d) “Household” shall mean any other person who lives with the employee as a member of
his/her family.
e) “Immediate family” shall mean:(i) the employee’s spouse, child, parent, grandparent, grandchild or sibling; or
(ii) a child, parent, grandparent, grandchild or sibling of the employee’s spouse
3.
f)
“NES” means the National Employment Standards as contained in sections 59 to 131 of the
Fair Work Act 2009 (Cth)
g)
“REIWA” shall mean the Real Estate Institute of Western Australia.
h)
“Spouse” includes a former spouse, de facto spouse and former de facto spouse
i)
“The Act” shall mean the Real Estate and Business Agents Act 1978 (WA).
CONTRACT OF SERVICE
Position
3.1
The employee shall be engaged in the position specified in Appendix A and shall be required to
carry out any duties required by the Agent, provided that they are capable of performing them.
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Basis of employment
3.2
The employee is engaged on either a full time or part time basis as specified in Appendix A.
3.3
Full time means that the employee is engaged on the basis of a 38 hour week.
3.4
Part time means that the employee is engaged to work less hours than a full time employee. The
employee will accrue entitlements under this contract on a pro rata basis proportionate to the
number of ordinary hours specified in Appendix A.
Probation (new employees only)
3.5
The employee shall be engaged by the Agent on a probationary term of three months, during
which time the employee shall be required to demonstrate an adequate understanding of the
Agent’s business and a level of competence required by the Agent to satisfactorily perform the
full range of duties allocated to the employee.
3.6
The Agent may extend the probationary term by a further 3 months by giving the employee
written notice including reasons for the extension and the expiry date of the probationary term
4.
OBLIGATIONS
General Obligations of Employment
4.1
The Employee shall work in accordance with this contract, the Act, the REIWA Rules of Practice
and Code of Ethics, the Code of Conduct for Agents and Sales Representatives, any policies of the
Agent as amended from time to time, and any other laws or regulations applicable to the
employer or the real estate industry.
4.2
The employee shall undertake:
a)
to observe and perform all duties in a professional manner;
b) such duties in relation to the conduct of the Agent’s business as assigned from time to time;
c)
to observe and comply with all reasonable and lawful directions from time to time given by
the Agent;
d) to be available for such hours of work as may from time to time reasonably be required by
the Agent.
4.3
The employee shall not without the consent of the Agent be engaged or interested in, either
directly or indirectly in any capacity, in any trade, business or occupation which may interfere
with the performance of his or her duties.
4.4
The employee shall not, except as authorised or required by his or her duties, destroy, copy or
remove from the Agent’s office any document or record pertaining to the Agent’s business.
4.5
For the duration of the employment, and after the employment, the employee shall not disclose
to any person or corporation other than the Agent or any person having lawful authority to
require such disclosure, any professional secrets or confidential information of the Agent,
including but not limited to:
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a)
documents or information marked as confidential;
b) information received or developed by the employee in the course of employment which is
not publicly available and relates to the business, work or interest of the Agent;
c)
written management policies and directions of the Agent;
d) specifications, discoveries (whether patentable or not);
e) copyright such as manuals, technical data, trade secrets;
f)
financial information and details of suppliers;
g)
computer software developed by the Agent; and
h) marketing information such as customer lists and distribution of customers within
geographical locations, statistical documents which has come to the employee’s notice
during the employment or as a result of the employment.
4.6
The employee shall provide details of “Vendor Paid Contributions” and other trust transactions
when and as required by the Agent.
4.7
The employee shall not incur any cost on behalf of the Agent other than approved advertising
costs or such other costs which have been approved by the Agent in writing.
4.8
The employee shall actively promote and recommend the services of the Agent’s preferred
suppliers.
4.9
The employee is required to attend such in-house training sessions and sales meetings as
required by the Agent.
4.10
The employee shall identify in every “Authority to Sell”, the agreed method of any advertising or
marketing, the proportion, if any, sponsored by the Vendor and how that amount will be paid.
4.11
The employee is not authorised to enter into any commitment, make any purchase or grant any
indemnity on behalf of the Agent without the written authorisation of the Agent.
Professional Obligations
4.12 The employee and the Agent shall have a good working knowledge of the Act, Regulations,
REIWA Rules of Practice and Code of Ethics and the Code of Conduct for Agents and Sales
Representatives as amended from time to time.
4.13
The Agent shall take all reasonable steps to keep the employee informed of changes to any Act
with which the employee is required to be familiar.
4.14
It is a condition of employment that the employee shall at his or her own expense maintain a
current registration as a Sales Representative with the Department of Commerce or any other
such relevant authority as required by any applicable law and at the request of the Agent from
time to time produce appropriate documentary proof of such registration. Should the employee
no longer be in possession of such registration at any time for any reason whatsoever, the
employee is to immediately notify the Agent in writing.
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4.15
In the event that the Agent should incur a penalty, fine, or both, imposed pursuant to the
provisions of the REIWA Rules and Practice and Code of Ethics and the Act, or the Code of
Conduct for Agents and Sales Representatives, as a result of some wrongful act or default of the
employee, unless such costs are fully covered by the Agent’s Professional Indemnity Insurance
Policy:
a)
the employee shall pay to the Agent the full amount of such penalty and/or fee; and/ or
b) the employee authorises the Agent to deduct from any commission payment owing to the
employee the full amount of such penalty;
5.
REMUNERATION
Retainer
5.1
The employee shall be paid the retainer Specified in Appendix A. The amount of the agreed
monthly retainer shall be adjusted from time to time so that it is no less than the relevant
amount prescribed by the Award.
Incentive Commission
5.2
In addition to the retainer in subclause 5.1, the employee shall be entitled to incentive
commission from the Agent in respect of each completed real estate transaction for which the
Agent has itself received commission and for which the employee is the effective cause, subject
to supporting the claim with a copy of a valid “Authority to Sell” in respect of the transaction.
5.3
Subject to this clause, the amount of incentive commission to which the employee shall be
entitled is specified in Appendix A.
5.4
Any debit balance in the employee’s incentive commission calculation at the end of any pay
period shall be carried forward to the next pay period, provided always that the employee at the
time of termination of his/her employment shall have received no less than their minimum
retainer.
5.5
The Agent shall, within 14 days of the entitlement becoming payable, provided that the
employee’s entitlement to commission only becomes payable once the Agent has received
cleared funds from its client for the transaction to which the employee’s entitlement relates, pay
to the employee any incentive commission owed, as calculated in accordance with this clause for
that pay period.
5.6
The percentage of gross commission specified in Appendix A may be varied in writing by mutual
agreement between the Agent and employee.
Deductions
5.7
The Agent may deduct from the employee’s retainer, incentive commission, or any monies
owing, any amount that it is authorised or required to deduct including any overpayment of
remuneration.
Superannuation
5.8
Superannuation contributions shall be paid by the Agent into a fund nominated by the employee
in accordance with the Superannuation Guarantee (Administration) Act 1992 (Cth), provided that
where the employee does not nominate a fund, into a fund nominated by the Agent.
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5.9
The Agent may make the superannuation contributions to one of the following superannuation
funds or its successor:
a)
REI Super;
b) Asset Super;
c)
Tasplan;
d) AustralianSuper; or
e) Any superannuation fund to which the Agent was making superannuation contributions for
the benefit of its employees before 12 September 2008, provided the superannuation fund is
an eligible choice fund.
6.
MOTOR VEHICLE AND MOBILE PHONE
Motor Vehicle
6.1
It is a condition of employment that the employee shall maintain at his or her own expense a
current driving license and at the request of the Agent from time to time produce appropriate
documentary proof of such license. Should the employee no longer be in possession of such
license at any time for any reason whatsoever, the employee is to immediately notify the Agent
in writing.
6.2
The employee shall provide and maintain his or her own motor vehicle which shall be insured for
business purposes and licensed for business use at all times.
6.3
Where the Agent is required to pay the employee a motor vehicle allowance in accordance with
the Award the employee agrees to authorise the Agent to deduct the cost of the allowance in the
calculation of any incentive commissions payable to the employee in accordance with Appendix
A.
Mobile Phone
6.4
The employee is required to provide and maintain a mobile telephone for work purposes.
6.5
The Agent will pay the employee the amount specified in Appendix A as reasonable
reimbursement for the cost of the use of the employee’s mobile telephone for work purposes.
6.6
Should the employee require the use of a telephone in excess of this specified amount the
employee is directed by the Agent to use one of the Agent’s telephones located at the office of
the Agent for any work related purpose.
6.7
Should the employee incur costs in excess of the allowance paid, then the Agent will not be
responsible for any further reimbursement to the employee.
6.8
The employee agrees to authorise the Agent to deduct the amount referred to in subclause 6.5 in
the calculation of any incentive commissions payable to the employee in accordance with
Schedule A.
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7.
HOURS
Ordinary Hours
7.1
The employee is contracted to work:
a)
in the case of a full time employee, 38 hours per week.
b) in the case of a part time employee, the hours specified in Appendix A
7.2
These contracted hours of work will be averaged over an eight week period.
7.3
The employee’s contracted hours of work may be worked on any day, Monday to Sunday, and
shall be worked as agreed between the employee and the Agent, to suit the operational
requirements of the business.
7.4
The employee is entitled to 1.5 or two rostered days free of duty each week. Such rostered days
off may be taken in one of the following ways:
a)
One consecutive period;
b) Two periods; or
c)
Three periods comprising one day and two half days.
7.5
It is the responsibility of the employee to ensure that the employee’s duties and responsibilities
are organised in such a manner as to ensure that the employee has in fact taken these rostered
days off in accordance with the Award and this contract.
7.6
The employee agrees to provide to the Agent weekly timesheets, indicating the employee’s start
and finish times, breaks taken and the total of hours worked each day and for the week.
Additional Hours
7.7
Where the employee performs additional hours of work in excess of the contracted hours as
specified in subclause 7.1 at the employee’s own initiative (i.e. without any express instruction
from the Agent to do so) or without written authority from the Agent, the employee will not be
entitled to payment for those additional hours.
7.8
Where the Agent does expressly instruct and authorise in writing for the employee to work
additional hours, the employee agrees to take time off instead of payment for overtime.
a)
Such overtime taken as time off during ordinary time hours will be taken at the ordinary time
rate; that is, an hour for each hour worked.
b) It is the responsibility of the employee to ensure that such time off is to be taken within four
weeks of its accrual.
7.9
The employee agrees that he/she may be requested to work on a public holiday.
a)
The employee shall only be paid to work on a public holiday should the Agent specifically
direct the employee in writing to work on any such day. The employee when directed to
work on a public holiday shall be paid double time.
b) Should the employee work at the employee’s own volition on any such public holiday, there
will be no additional payment for this work.
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Breaks
7.10 The employee is entitled to an unpaid meal break of not less than 30 minutes duration whenever
the employee works five consecutive hours or more. It is the responsibility of the employee to
take this unpaid meal break at any reasonable time having consideration to the duties and
responsibilities of the employee at the time.
8.
LEAVE ENTITLEMENTS
Annual Leave
8.1
The employee is entitled to paid annual leave of 4 weeks each year which accrues progressively
according to the employee’s ordinary hours of work in accordance with the NES.
8.2
A part-time employee is entitled to a proportion of the full-time entitlement according to the
ordinary hours worked by the part-time employee.
8.3
Annual leave is paid at the employee’s base rate of pay as defined by the Award.
8.4
Annual leave shall be taken at a time mutually agreed between the parties.
8.5
The employee agrees to take the annual leave accrued each year within the employee’s
anniversary year in which the entitlement accrues, except if agreed otherwise.
8.6
The Agent may direct the employee to take any portion of annual leave that has accrued in
excess of four weeks. In such circumstances the Agent will give the employee at least four weeks
notice of the requirement to take the excess period of accrued annual leave.
8.7
When the Agent has a business shut-down (which may include a partial shut-down), the
employee may be directed to take any or all accrued annual leave during the period of the shutdown. Where the employee does not have sufficient leave to cover the period of the shut-down,
the employee may be granted annual leave in advance or the employee may take unpaid leave.
8.8
Annual leave does not accrue during any period of unauthorised absence, unpaid leave or unpaid
authorised absence (other than community service leave or period of stand down).
8.9
From January 1, 2015, during a period of annual leave the employee will receive a loading of
17.5% calculated on the minimum weekly wage for the employee’s classification under the
Award.
a)
The employee agrees to authorise the Agent to deduct the cost of the leave loading in
calculating any commissions payable to the employee in accordance with Appendix A.
Personal/Carer’s Leave
8.10 The employee is entitled to paid personal/carer’s leave of 10 days each year which accrues
progressively according to the employee’s ordinary hours of work in accordance with the NES.
8.11
Personal/carer’s leave can be used either as:
a)
sick leave if the employee is not fit for work because of personal illness or personal injury; or
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DEBIT / CREDIT CONTRACT OF EMPLOYMENT
b) carers leave to provide care and support to a member of the employee’s immediate family or
household because of:
(i) personal illness or personal injury affecting the member; or
(ii) an unexpected emergency affecting the member.
8.12
Personal/carer’s leave does not accrue during any period of unauthorised absence, unpaid leave
or unpaid authorised absence (other than community service leave or period of stand down).
8.13
Personal/Carer’s leave is paid at the employee’s base rate of pay as defined by the Award.
8.14
To be entitled to paid personal/carer’s leave the employee must advise the Agent as soon as
reasonably practicable of his/her inability to attend work because of personal illness or injury.
8.15
For all absences the employee must provide a medical certificate that he/she is unfit for work
during the period because of personal illness or injury. In the event that it is not reasonably
practical to obtain a medical certificate, a statutory declaration must be provided, detailing the
same information.
Compassionate Leave
8.16 The employee is entitled to 2 days compassionate leave per occasion in accordance with the NES
where a member of his/her immediate family or household:
a)
contracts or develops a personal illness, or sustains a personal injury, that poses a serious
threat to his/her life; or
b) dies.
8.17
Compassionate leave is paid at the employee’s base rate of pay as defined by the Award.
8.18
In order to be entitled to compassionate leave you must provide the Agent with evidence to
satisfy a reasonable person of the entitlement.
Long Service Leave
8.19 Long service leave shall be granted in accordance with and subject to the terms of the Long
Service Leave Act 1958 (WA), as amended.
8.20
The employee and the Agent may agree in writing that the employee shall forgo any or all
entitlement to long service for an equivalent benefit in lieu.
Unpaid Parental Leave
8.21 The employee is entitled to, after 12 months continuous service with the Agent, unpaid parental
leave following the birth or adoption of a child in accordance with the NES.
8.22
In summary, the entitlement to parental leave is up to 12 months unpaid parental leave which
can be taken as maternity leave and/or parental leave, or adoption leave.
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DEBIT / CREDIT CONTRACT OF EMPLOYMENT
Community Service Leave
8.23 The employee is entitled to community service leave, in accordance with the NES and relevant
State legislation, as summarised in this clause, to attend:
a)
jury service; or
b) a voluntary emergency management activity with a recognised body to deal with an
emergency or natural disaster.
8.24
The employee must notify the Agent as soon as reasonably practicable of his/her intention to
take leave and advise the period (or expected period) of the absence.
9.
TERMINATION OF EMPLOYMENT
Notice Requirements
9.1
The contract of employment may be terminated at any time by:
a)
The employee resigning and providing the Agent with 1 weeks notice. Unless the parties
mutually agree in writing to a notice period of greater than one week, employment will
terminate one week from the date that the employee gives the Agent. The Agent is under no
obligation to accept a notice period of greater than one week.
b) the Agent giving you written notice in accordance with the table below:
Period of Continuous Service
1 Year or Less
More than 1 year and up to 3 years
More than 3 years and up to 5 years
More than 5 years
Period of Notice
1 week
2 weeks
3 weeks
4 weeks
Additionally if the employee is over the age of 45 with at least 2 years’ service and their
employment is terminated by the Agent they shall be entitled to an additional 1 weeks’ notice or
payment in lieu thereof.
9.2
The Agent may provide the employee with payment in lieu of the notice not provided which shall
be paid at the full rate of pay as defied in the Award. In the case of resignation by the employee,
The Agent may elect to pay the employee one week’s pay instead of the employee serving out
the notice period.
9.3
In the event that the required notice is not given or not served by the employee, the Agent may
withhold from any monies owing to the employee an amount not exceeding the amount the
employee would have been paid under the Award in respect of the period of notice required by
this clause, less any period of notice actually served by the employee.
9.4
Notwithstanding the above the employee may be dismissed without notice for serious
misconduct. Serious misconduct has the meaning prescribed by the Fair Work Regulations (as
amended) and in summary includes:
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a)
Wilful or deliberate behaviour that is inconsistent with the continuation of employment,
including;
(i)
theft, fraud or assault;
(ii)
being intoxicated at work due to either alcohol or drugs (except a drug administered
by, or taken in accordance with the directions of a person lawfully authorised to
administer the drug);
(iii)
refusing to carry out a lawful and reasonable instruction that is consistent with your
contract of employment
b) Conduct that causes serious and imminent risk to:
(i)
the health or safety of a person; or
(ii)
the reputation, viability or profitability of the Company’s business.
9.5
If the employee is engaged on a temporary basis (as specified in Appendix A), employment shall
automatically cease upon the expiration of the term specified, provided that either party may
end the employment at any time by giving the notice specified in this clause.
9.6
All books of account, records, papers, correspondence and other documents of the Agent or the
Agent’s business and any other property of the Agent that is in the possession or under the
control of the employee shall be returned to the Agent whenever requested by the Agent and in
any event immediately upon termination of employment. Final payments will not be made until
all property of the Agent is returned by the employee.
Entitlement to Incentive Commissions after Termination
9.7
Upon the termination of the contract of employment the amount payable to the employee shall
be calculated as follows:
a)
In respect of all transactions for which the employee is the effective cause and which settle
prior to the termination of employment, all amounts due in accordance with clause 5; and/or
b) In respect of all transactions for which the employee is the effective cause but were not
settled prior to the termination and subsequently settle after the termination of
employment and result in payment of commission to the Agent the employee will receive a
proportion of the any incentive commission payable under subclause 5.1 in accordance with
Appendix A.
9.8
Notwithstanding the above, in the case of summary dismissal for serious misconduct, the
employee shall receive no incentive commission for any outstanding transactions
9.9
The Agent shall, within 14 days of the entitlement becoming payable, provided that the
employee’s entitlement to commission only becomes payable once the Agent has received
cleared funds from its client for the transaction to which the employee’s entitlement relates, pay
to the employee any incentive commission owed, as calculated in accordance with this clause, for
that pay period.
10.
SEVERABILITY
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10.1
Should any provision of this contract be declared or determined to be illegal or invalid by final
determination of any court or tribunal of competent jurisdiction, the validity of the remaining
parts, terms or provision of this contract shall not be affected, and the illegal or invalid part, term
or provision shall be deemed not to be part of this contract.
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SIGNATURES
Agent’s Signature
[Insert Full Business Name] (ABN [Insert ABN]) understands its rights and responsibilities under this
contract, and has freely entered into it.
___________________________
Signature on behalf of the Company
__________________________ _____
Name of Person Authorised to Sign
_____________
Date
Employee Signature
I understand my rights and obligations under this contract, and have freely entered into it.
____________________________
Signature
__________________________ _____
Name of Employee
_____________
Date
_____________________________________________________________
Address
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APPENDIX A
OPERATION OF CONTRACT
Item 1
Full name of Agent
Item 2
Full name of employee
Item 3
Commencement date of
Contract / Employment.
Item 4
Position Title
Item 5
Basis of Employment
Sales Associate / Sales Representative / Sales Supervisor
[delete as appropriate]
Full Time
Part Time
Hours _____________
Temporary
Until ____/____/____
REMUNERATION
Item 6
Retainer
$...................
appropriate]
per
week/fortnight
Item 7
Net Commission
“Net Commission” shall mean the total commission paid
to an Agent as a result of a completed real estate
transaction minus the following deductions:
a)
GST
b)
Conjunctional agents fees
c)
Desk fees
d)
Franchise fees
e)
other
[delete
as
[Editors Note - insert or delete the following as
applicable – these are deductions made prior to the
commission split]
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Item 8
Incentive Commission
The amount of incentive commission to which the
employee shall be entitled, shall be [insert percentage]
% of the net commission received by the Agent.
In calculating the incentive commission the amount shall
be reduced by the following:a) The amount of the gross retainer paid to the
employee;
b) value of accrued annual leave;
c) paid personal leave;
d) payment in lieu of notice;
e) office phone charges;
f) mobile telephone allowance;
g) advertising expenses;
h) desk fees;
i) superannuation contributions;
j) motor vehicle allowance;
k) leave loading;
l) annual leave and paid personal leave accrued under
previous contracts of employment and taken or paid
out under the duration of this contract of
employment;
m) [other]
[Editors Note – the above list can be modified to suit
the requirements of the business]
MOBILE TELEPHONE AND MOTOR VEHICLE
Item 9
Mobile Telephone
Allowance
$ [insert amount] will be paid weekly/fortnightly/
monthly [delete as appropriate] as a reasonable
reimbursement for the cost of the use of the employee’s
mobile telephone for work purposes.
Item 10
Motor Vehicle Allowance
The Employee will be paid a motor vehicle allowance
based on:

Standing Charge plus per km rate

Lump Sum
Motor vehicle allowance applies from 1 January 2015
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LEAVE ENTITLEMENTS
Item 11
Long Service Leave
In accordance with subclause 8.20 the employee and the
Agent agree that 1.7% of the employee’s incentive
commission is provided in lieu the entitlement to long
service leave and agree that this provides the employee
with an equivalent benefit.
[Editor’s Note - delete this line if the employee will be
entitled to long service leave]
TERMINATION OF EMPLOYMENT
Item 12
Payment of Incentive
Commission on
Termination
In accordance with subclause the employee will receive
a proportion of the any incentive commission payable in
accordance with Item 8 of this Appendix and subclause
5.1:
_____% of the incentive commission for sales awaiting
settlement at the time of termination where no followup service was given by the Agent; and
_____% of the incentive commission for unconditional
sales where a follow-up service was given by the Agent;
and
_____% of the incentive commission for conditional
sales.
[Editor’s Note – Insert the relevant percentage of
incentive commission specified in Item 7. For example,
100% in case of no follow up, 90% for unconditional
sales where follow up was required, 80% for
conditional. The amounts specified in this note are for
illustrative purposes only].
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