Have you diarised your Commission-Only MITA reviews?

Clause 16.7 (h) of the Real Estate Industry Award 2020 requires a real estate agency to perform a review of all Commission Only employees’ actual earnings performance. If the gross income of any Commission Only sales agent is found to be less than the requirements under MITA, as stated in clause 16.7 (d) , the Commission Only employment MUST cease.

In practical terms, this means that a formal HR process is needed to either:

• terminate the salesperson from his/her Commission-Only role altogether (ensuring the lawful termination processes under the Fair Work Act 2009 are followed); or

• offer a continuing role to the sales agent, but on a Wage.

If a Commission Only salesperson has joined your agency any time during the year, diarising and performing a MITA review is an easy matter to overlook.

Legal and financial Consequences

The consequences for a real estate agency can be quite severe because if an underperforming salesperson continues to be employed despite not meeting the MITA test, the Employer will be liable for payment of back wages and allowances for the entire period of employment after the MITA review was supposed to be conducted. If such a salesperson lodges a complaint with the Fair Work Ombudsman, the investigation process could stretch to other salespersons, including past employees.

Such hassles are best avoided. To cover off your business risks, ask your HR/Payroll person to provide you with MITA confirmation for all your Commission-Only salespersons.