Commission Only Employees – Sole Traders

New Minimum Requirements

As part of the suite of changes under the Industrial Relations Legislation Amendment Act 2021 (WA), minimum employment entitlements have been extended to state industrial relations system employees who are paid wholly by commission.

Previously, employees in the state industrial relations system who were paid wholly by commission or percentage reward (‘commission only employees’) were excluded from the definition of ‘employee’ in the Minimum Conditions of Employment Act 1993 (MCE Act). ‘Commission only employees’ means employees who are paid commission according to the amount they sell (for example, a percentage of their total sales) without also receiving a retainer or minimum weekly payment.

This exclusion meant that commission only employees were not entitled to the state minimum wage and other minimum conditions of employment provided in the MCE Act.

The definition of employee in the MCE Act as been amended so that commission only employees will be covered by that Act.

Commission only employees were not previously excluded from the Industrial Relations Act 1979 (IR Act) and some commission only employees may be currently covered by a WA award. The employment conditions of these employees will not change.

Commission only employees were also not previously excluded from the Long Service Leave Act 1958 (LSL Act).

Employment Entitlements

Commission only employees are now entitled to minimum conditions under the MCE Act including the:

  • minimum wage;
  • annual leave, personal leave, bereavement leave, and family and domestic violence leave; and
  • provisions relating to public holidays, reasonable hours of work, authorised deductions from pay, and unreasonable requirements to spend or pay money to an employer.

Please contact REEFWA on (08) 9365 7510 or if you require assistance in managing any of these legislative changes within your workplace.

Written By Justin Lilleyman

Real Estate Employers’ Federation of WA (REEFWA), the Chamber of Commerce and Industry of WA (CCI) and Business Law WA (BLWA) 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, BLWA 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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