QLD Sales Commission - Refused to be Paid Out after Resignation?

[Sales Sam]

I was until recently working a commission only sales job. Commissions only being paid when the clients paid the company. Upon my resignation I asked the Directors to let me know when the outstanding client invoices were paid so I could submit an invoice to claim against the outstanding commission amount (approx $8000).
However I was sent t text by one of the Directors claiming “as the contract agreement is for a contractor to chase payment and collect funds from customers, commissions are only paid upon this step. Upon resignation (without notice) no commissions will be paid as the collection process is now handled by the company”. This is not mentioned in the contract I have.
I was worried that I may have foregone any right to the outstanding commission but after reviewing the contract the only mention of withholding outstanding entitlements occurs in Clause 14 and only mentions the company terminating the contract and not the contractor.

Do I have a right to claim my outstanding sales commission to be paid in full?

 

[Rod]

Yes. Contact your employer, and put it in writing/email, that you want your commissions paid and if necessary you'll chase up the outstanding monies from customers. If they elect not to do that and your employment contract is silent on this matter, then you should be entitled to all your commission.

Tell your ex-employer that if they do not give you your commission you'll be seeking advice from the Fair Work Ombudsman and possibly sue them for breach of contract. Also say in writing that you 'continue to reserve all your rights' at the end of your correspondence. Handy little clause that means you won't unwittingly give up any important rights that you currently know nothing about.

 

[Sales Sam]

Thank you for replying Rod. I didn't think an employer could do that regardless of ones employment status. I have since contacted Fair Work Australia and had a chat with them. They are of the opinion that it was a sham contractor arrangement and that I should seek further legal representation to assist me in recouping all my entitlements including outstanding commission.

 

[Ivy]

Hi Sales Sam,

I am glad you are following up this matter with Fair Work Australia. Apart from the matter of claiming your unpaid commission, did they discuss with you whether your employer was able to employ you on a commission only basis? I was under the impression that commission only wages are not legal. At least I am fairly sure that is the situation in NSW and the ACT. Were you working under an Award? If so, which one was it?

 

[Sales Sam]

Hi Ivy, I had a good chat with the people at Fair Work Australia. The Customer Service Rep was quick to let me know that they are not Solicitors so actual legal advice was needed to be sought elsewhere. After a series of questions to about what my role was and who I sold to, it was clear I was covered under the Commercial Sales Award 2010. I could well have been a Casual Employee on a rate of $24.63 ($19.71 plus 25% loading) and this is legally enforceable.
So from here I have to collate facts and figures to determine the total hours I have worked in the past year, the actual commissions paid and what outstanding commission is still owed. FWA gave me useful information and an idea of where to go from here. They were very helpful.
I didn’t want to cause any trouble but I felt like they were taking the food out of my kids mouths by what they were saying and did. I don’t want to be walked over/intimidated out of what I have rightfully earned and expected to be paid. So I will be seeing a solicitor with all the facts and figures and push for it to be settled through mediation first.

 

[Rod]

You may be able to do the first few steps without a solicitor first, and see if the FWO can mediate. Needs other party to agree though.

 

[Sales Sam]

Hi Rod, I feel more comfortable by seeking legal advise first as I am eligible for a free consultation from a local community legal centre. Secondly, I shouldn't assume this but I don't think they would be up for it if it was just myself approaching them based on previous "we need to have a meeting" discussions I have had with the both of them.

 

[Rod]

Hi Sam,

You may have misunderstood what I was saying. The FWO offers a mediation service and once you raise a case with them, part of their process is to offer mediation.

Certainly use the free consultation though, it will help you get your head around how to approach your problem.