The Real Estate Industry Award was reviewed last year and the Fair Work Commission changes came into effect 2 April, 2018. The first anniversary of this change is approaching. It is significant.
Under the Fair Work Act 2009 (Cth) the Fair Work Commission is required to review all modern awards every four years and recently completed a review of the Real Estate Industry Award 2010, in consultation with industry representatives such as Real Estate Salespersons’ Association, Australian Property Services Association Queensland, Real Estate Employers’ Association and Real Estate Employers’ Federation.
The Commission made changes addressing the following issues, which came into effect on 2 April 2018:
- employee classification and minimum wage;
- commission-only employee arrangements;
- entitlements to commission, incentive payments or bonuses after employment ends; and
Employee classification and the minimum weekly wage
From 2 April 2018, employee classifications and minimum weekly wages under the Award changed as follows:
- Employee classifications and related definitions under the current Award will be amalgamated as follows:
|Old classification||New amalgamated classification|
|Property Sales Associate
Property Management Associate
Strata Community Title Management Associate
|Real Estate Employee Level 1 (Associate)|
|Property Sales Representative
Property Management Representative
Strata/Community Title Representative
|Real Estate Employee Level 2 (Representative Level)|
|Property Sales Supervisor
Property Management Supervisor
Strata/Community Title Supervisor
|Real Estate Employee Level 3 (Supervisory Level)|
- A new classification called ‘Real Estate Employee Level 4 (In-Charge Level)’ has been added to the Award which will apply to individuals who are responsible for the overall supervision of an office rather than a team.
- Minimum weekly wage rates based on these new employee classifications will be as follows:
|Employee classification||Minimum weekly rate|
|Real Estate Employee Level 1 (Associate)
(First 12 months of employment at this level)
|Real Estate Employee Level 1 (Associate)
(After 12 months employment at this level)
|Real Estate Employee Level 2 (Representative Level)||$809.10|
|Real Estate Employee Level 3 (Supervisory Level)||$890.00|
|Real Estate Employee Level 4 (In-Charge Level)||$930.50|
- Any employee (such as an employee classified as a Property Management Supervisor or Strata/Community Title Management Supervisor) must not suffer a reduction in wages as a result of the new classification structure and minimum weekly wage rates.
In addition to the changes made to employee classifications and the minimum weekly wage, new provisions regarding commission-only employees now apply.
From 2 April 2018, a salesperson may only be engaged in commission-only employment if they have achieved a minimum income threshold amount of 125% or more of the equivalent annualised minimum wage applicable to their employee classification. E.g. A person who would ordinarily be classified as a ‘Real Estate Employee Level 2 (Representative Level)’ under the Award must achieve annual remuneration of $52,591.50 or more (being 125% of the minimum annual wage applicable for this employee classification) to remain in commission-only employment.
Employers will be required to review the gross annual income of commission-only employees every 12 months to establish that they meet the minimum income threshold amount of 125% of the applicable minimum wage. For employees on commission-only arrangements entered into prior to 2 April 2018, this review should occur no later than 2 April 2019.
If the commission-only employee’s gross annual income has fallen below the minimum income threshold amount, the commission-only arrangement must cease immediately, and that employee will then be paid the minimum weekly rate in accordance with their relevant employee classification.
Commission-only employees are entitled, from 2 April 2018, to paid leave in accordance with the National Employment Standards at the time such leave is taken and at no less than their base rate of pay.
Further, the calculation under the Award of the commission-only employee’s minimum commission-only rate will change from 35% of the employer’s net commission to 31.5% of the employer’s gross commission.
The Award will also place the following minimum requirements for commission-only employment:
- the employee and employer must have a written agreement, as provided for under the Award, that the employee will be remunerated on a commission-only basis and setting out the basis upon which commission will be calculated;
- the employee has been issued with a real estate license or is registered or permitted to perform the duties of a real estate salesperson under real estate law;
- the person has been engaged in property sales or commercial, industrial or retail leasing as ‘Real Estate Employee Level 2’, or was an active licensed real estate agent for at least 12 consecutive months in the 3 years immediately prior to entering into the a commission-only agreement;
- the employee is at least 21 years of age; and
- the employee is not engaged as a casual, junior, ‘Real Estate Employee Level 1’, or trainee.
Existing employees who qualified to be employed on a commission-only basis under the Award prior to 2 April 2018 will continue to be eligible for commission-only employment under the terms of the Award so long as their employment continues, and subject to continuing to meet the minimum income threshold amount.
From 2 April 2018, except in cases of serious misconduct, following cessation of an employee’s employment an employer is required to pay the employee with a portion of commission, incentive payments or bonuses calculated in accordance with a written agreement or the Award where there was a legally enforceable contract in place for the sale or lease of the property prior to the expiration date of the exclusive agency. This differs from the position under the current Award which requires a legally enforceable contract to be in place before cessation of employment.
If an employer requires an employee to use their own motor scooter or motor cycle during the course of their employment, from 2 April 2018 the employee will now be entitled to an allowance calculated at the rate of $0.26 per km for such use capped at 400km per week. To claim this allowance employees must keep records similar to those required for the motor vehicle allowance.
Also, employees will be entitled to claim a mobile phone allowance from employers if they are required to use their mobile phone in the course of their employment.