Are real estate agents liable to pay back Jobkeeper as part of a retainer and commission fee structure?

When coronavirus hit in March 2020 the real estate industry, like many other industries, felt the impacts particularly hard. The announcement of the JobKeeper and Jobseeker schemes helped to ease some of the anxiety that Australians were experiencing. However, now that restrictions have largely eased and industries are on the road to recovery, the JobKeeper scheme has created an ongoing issue for those in the real estate industry.

Real Estate Agents are usually paid under either a commission only or commission and retainer agreement pursuant to the Real Estate Industry Award 2020. If a real estate agent is paid according to a retainer and commission agreement, usually the agent will be required to reimburse their employer a portion of, if not their entire retainer, through their commissions. Any amount above the retainer goes directly to the agent. This is a well-accepted practice in the real estate industry.

Some employers are now asking employees who received JobKeeper to repay the payments as part of their normal retainer and commission arrangement. This has seen backlash from those in the real estate industry who feel their employers are “double-dipping” by receiving a payment from the Federal Government and simultaneously requiring a repayment according to their regular arrangements.

Several individuals in the industry are upset by their employer’s request, given the overall intention of the JobKeeper scheme was to subsidise employee wages and reduce the expenses that the employer was incurring. Stage 3 and 4 restrictions significantly impaired many agents ability to make sales, thereby impeding their ability to earn commission and make the repayments.

The ATO has not released a public ruling on this matter but recognises that your employer is unable to “reclaim” the JobKeeper payments from you. If you would like some further advice about your options, you should seek legal advice from an employment law expert.