Hi Folks,
I was recently invited to attend a "forum" to give my views on the issue of "Proposed Registration of Negotiators". As due to some unforeseen events, I could not attend: this post became my 'transparent' contribution to the aforesaid issue - it was meant for the real estate agency fraternity:
"The following sub-issues, in my view, are relevant when we look at the main issue of "Proposed Registration of Negotiators" for Malaysian real estate agency practice:
1) Comparative Studies: What happens in other professions? Are the assistants of the other professionals (doctors, engineers, lawyers, accountants, etc) similarly subjected to a system of registration? If so, by which body - their statutory governing bodies, their duly constituted professional associations or an independent 3rd party? If the assistants of the other professionals are not subjected to any system of registration, why the assistants (a.k.a the Negotiators) of professional real estate agents in Malaysia must be subjected to one? Is there any urgent or compelling mischief out there that must be expeditiously addressed and remedied through such a proposed system of registration when there are many other mischiefs - bogus agents, licence-leasing, non-compliance with salary, compulsary EPF and Socso contributions and 40% commission ceiling for RENs, non-submission of Negotiators' Lists...etc. which require our focus and remedial actions? Are we not opening an unnecessary new front to further distract our focus and drain our limited resources?
2) Present Practice: What is wrong with the present practice of "submission of Negotiators' Lists"? Isn't it good enough to address/remedy the mischief, if any? If not, why not improve / fine-tune the present practice - introduced some years back by way of 2 Circulars of the Board - instead of introducing a system of registration which I presume to be similar to the present system of registration - introduced by statutory provisions of the BVAEA 1981 - of REAs (since the same word "registration" is being used), such fine-tunings as requiring:
- that reminders / warnings be sent when the RENs' Lists are not received; or,
- that all RENs' Lists are to be sent only by Recorded Delivery (AR Registered, Courier, Pos Laju, etc.); or, alternatively requiring that submissions of RENs' Lists be done only when:
- a) registering estate agency firms or changes to their business addresses;
- b) renewing yearly registration of firms; and/or
- c) whenever there is any change to the Negotiators' Lists (RENs' Lists) - thus, doing away with the present practice of half-yearly submissions of RENs' Lists even when there is no change to the Lists?
- that solid safeguards be introduced to prevent or minimise corruption/abuse of administrative powers - for example, licence-leasing or rules-breaking REAs who have pending Court cases bribing or using their "connection" to do backdoor filing or retrospective submissions of RENs' Lists which they failed to file in the first place at the material stipulated times must never be allowed to happen to subvert the course of justice - such as: by requiring that all RENs' Lists and their updates be filed with an incorruptible independent depository (Auditor General's office or ACA) within a specific timeline; and, by appointing a person of highest integrity to administer and maintain the "Register of Negotiators" on a non-renewable tenure of, say, not more than 5-year for a very obvious reason.
3) Which Body Should Do It? If a system of Registration of Negotiators is to replace the existing practice of "submission of RENs' Lists", which body should rightfully do it? Shoud it be the Board, the MIEA or a third party independent body (e.g. an independent auditors' office) not consisting of any rival practising REAs who can then have access to the information/contact details of Negotiators of other REAs totally avoiding any conflicts of interests, unhealthy windows of opportunities for abuse or unethical discreet staff-pinching altogether?
4) Will "Registration of Negotiators" Make a Negotiator an "Independent Contractor" - Instead of an Employee - Working For REA(s)? Presently, under our estate agency law, a Negotiator works for a REA as an "employee" under a "contract of service" instead of as an "independent contractor" under a "contract for service" as under our existing law it is compulsory for Negotiators:
- to be paid a monthly salary (Circular 1/2000);
- to be paid EPF contributions (Circular 2/96);
- to be paid Socso contributions if eligible (Circular ?)
- to work full-time and not part-time (Std 9.2.3);
- not to work independently of the REA firm (Std 9.2.2);
- to work under the REA's direction and supervision (Std 9.2.1 and defn. in MEAS 1999);
and, that the employer REA has to,..., at all times, accept FULL responsibilities for the actions of his Negotiators (Std 2.3.5).
How will this "registration of Negotiators" - if the registration also necessitates passing certain competency examinations and experience - impact or change the whole scheme of things including vicarious liablity of the employer-REA for the actions of his Negotiators?
These are the sub-issues which I have identified in this 3rd update to my original posting. Please identify more as well as offer your critical views on all or any of them.
Together, let's contribute towards a better profession tomorrow...Stay tuned for more!
Douglas GT Tan
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