Not every employee will have a strong year, particularly in an industry where results can be heavily influenced by market conditions. When an employee fails to meet the Minimum Income Threshold Amount (MITA), employers should carefully review the circumstances, provide support where needed, and ensure they remain compliant with the Real Estate Industry Award 2020 (Award) and their broader legal obligations.
Historically, concerns existed that some commission-only arrangements could expose employees to significant fluctuations in earnings and financial uncertainty. In response, the Fair Work Commission introduced safeguards through the Award to ensure employees working under commission-only arrangements had demonstrated an ability to generate a minimum level of income before those arrangements could be used.
Since 2 April 2018, the Award has required employers to conduct annual reviews to assess whether commission-only employees remain eligible to continue under a commission-only arrangement.
As of 1 July 2026, the MITA is $72,741.50, which is 125% of the annual rate for a Real Estate Employee Level 2 under the Award.
Where an employee does not meet the MITA, they cannot continue to be employed on a commission-only basis. Employers should, therefore, review the employee’s remuneration arrangements and ensure they are transitioned to an Award-compliant alternative arrangement where required.
Real estate employers should regularly review how their commission-only employees are progressing towards meeting the MITA for the relevant year. Usually, there will be an indication before the review date as to whether an employee is likely to meet the MITA, and action should be taken as soon as it is identified that they may not achieve the required MITA. A failure to meet the MITA should not automatically lead to disciplinary action or termination, as this may increase exposure to unfair dismissal and other employment-related claims. Instead, employers should first address the Award compliance requirements.
Where an employee fails to meet the MITA:
Employers should also consider whether other factors have contributed to the employee’s failure to meet the MITA, such as market conditions, illness, injury, reduced listing opportunities or other circumstances outside the employee’s control.
Where genuine performance concerns are identified, however, employers should consider appropriate support measures as soon as possible, before progressing to formal performance management. Depending on the circumstances, coaching, mentoring, counselling or a Performance Improvement Plan (PIP) may be the appropriate action.
If a commission-only employee is likely to fail to meet the MITA, now is the time to review both your Award compliance obligations and your performance management practices.
Employers should remember that a PIP is a performance management tool, not a disciplinary outcome. The purpose of a PIP is to clearly communicate expectations, provide support and give the employee a reasonable opportunity to improve.
A practical approach may include:
To find out more information, call the Employee Relations Advice Centre at CCIWA on 08 9365 7660 or email advice@cciwa.com.
Written By Erin McStravick – Senior Employee Relations Adviser
CCIWA, Business Law WA and REEFWA has taken all reasonable care in preparing this document. The contents of this document do not constitute legal advice and should not be relied upon as such. Specific advice for your situation should be sought from CCIWA, Business Law WA or a professional adviser before any action is taken. Neither REEFWA, CCIWA nor Business Law WA accept responsibility for any claim that arises from any person acting or refraining from acting on the information contained in this document.
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