Travel time

25 June 2024

The Real Estate Industry Award was recently updated by the Fair Work Commission. Do you understand how the changes relating to excess travel impact your agency and employees? The Real Estate Employers’ Federation explains.

By BRYAN WILCOX

Before we dive into the recent changes to the Real Estate Industry Award 2020, it’s probably a good idea to set out who is covered by the award. The simple fact that you work in a real estate agency doesn’t mean that you’re covered by this award.

The Real Estate Industry Award covers employers throughout Australia who are operating within the real estate industry. These services include:

• Real estate agency
• Business and hotel broking
• Strata and community title management
• Stock and station agency
• Buyers’ agency
• Real estate valuation.

Examples of employees covered by the Real Estate Industry Award include:

• Property sales associates, representatives and supervisors
• Property management associates, representatives and supervisors
• Strata and community title management associates, representatives and supervisors
• Licensees in charge and agency managers.

The Real Estate Industry Award does not, however, cover roles that are wholly or predominantly clerical in nature; for example, a receptionist role. It’s likely that these roles are covered by the Clerks – Private Sector Award.

The Real Estate Industry Award is also unlikely to cover roles such as cleaners, gardeners or maintenance workers who are providing work for businesses within the real estate industry.

Why has the Real Estate Industry Award changed?

An application was filed with the Fair Work Commission asking that it amend certain clauses in the award to provide more clarity around an employee’s minimum pay and car allowance entitlements in circumstances where the employee is required to start or finish work at a location other than the employer’s business premises.

The application was made on the basis that the award was vague and unclear in relation to these matters and, as such, required the intervention of the Fair Work Commission.

More specifically, the application requested that the Fair Work Commission amend the award to remove any doubt or ambiguity about the following two matters:

• Where an employee is required by the employer to start or finish work at a location other than the employer’s business premises, the time spent travelling to such locations which exceeds the employee’s normal travel time to or from work, should be considered part of the employee’s ordinary hours of work.

• Where the employee is required to undertake such excess travel time and is required to provide a motor vehicle to perform their duties, the employee is entitled to be paid the applicable motor vehicle allowance prescribed by the award.

In its decision, the Fair Work Commission stated that the variation was necessary “to ensure that it makes clear when employees are working and the circumstances in which they are paid motor vehicle allowances”.

Importantly, the Fair Work Commission noted that “the variations simply clarify provisions of the award that employers should already be applying … and covers only excess travel and associated expenses rather than all travel”.

Moving forward, employers should ensure compliance with this award variation decision through the Employment Agreement and company policies.

Practical impact

As the changes only seek to clarify obligations that already exist under the Real Estate Industry Award, there may be no practical impact for many employers. This is because:

Under Clause 19 of the award, an employee is not entitled to be compensated for work conducted outside their ordinary hours of work, unless the employer has specifically directed them to do so; and

Most employers are paying the motor vehicle allowance by way of a lump sum, and the lump sum is reimbursement for all travel undertaken by the employee.

Ultimately, the employer still has the right to decide where employees start and finish work. If employees start and finish work from the office, there is no excess travel.

The new award provisions do, however, highlight the need for employers to recognise when and where their employees (who are covered by the award) start or finish work other than at the employer’s office. Where this is the case, this must be done with the specific knowledge, direction or consent of the employer and the work performed at the location, as well as the excess travel time spent getting to the location, should be considered part of the employee’s ordinary hours of work.

For those employers who specifically direct an employee to undertake excess travel time (or any other extra hours) in addition to their ordinary hours of work, overtime provisions will continue to apply.

For those employers who are paying either a per cents kilometre allowance or the standing charge plus a kilometre allowance, employees will need to be reimbursed for any excess travel in line with the decision.

Moving forward, employers should ensure compliance with this award variation decision through the Employment Agreement and company policies.

If you’re a REEF member and have questions about the changes to the Real Estate Industry Award, please don’t hesitate to give the REEF Helpline a call on 1300 616 170.