The Tribunal is required to determine remuneration for offices that meet the definition of "public office" in s3(4) of the Remuneration Tribunal Act 1973 (the Act). All offices established by a Commonwealth law (also known as statutory offices) and appointments made under a Commonwealth law are "public offices", unless the relevant legislation provides otherwise. If the status of the office is not clear, the arrangements establishing the office should be considered in order to establish whether the Act applies to that office. Legislation which establishes the office, board or committee will generally indicate how remuneration is to be determined. It may be necessary for administering agencies to seek legal advice on whether an office is in the Tribunal's determinative jurisdiction.

In many cases, offices that are not automatically in the Tribunal's jurisdiction (because they are not created in legislation) can be put into the Tribunal's jurisdiction. This process is commonly known as "referral-in". Referral-in occurs through the Minister responsible for the Remuneration Tribunal writing to the Tribunal President specifying that the Tribunal must determine remuneration for that office. This would usually occur as the result of a request to that Minister from the Minister with portfolio responsibility for the office. Offices where the office holder is appointed by the Governor-General or a Minister of State are offices to which this process can apply.

While there are frequently good reasons for doing so, there is no obligation for a Minister of State to request that the Minister with responsibility for the Remuneration Tribunal refer-in an office. Similarly, there is no obligation on the Minister with responsibility for the Remuneration Tribunal to agree to such a request.

2. What should be considered when deciding whether a request should be made for a referral-in?

Factors which might be considered include:

the desirability of having remuneration determined by an experienced, independent authority (and the possible relevance of the Minister being seen to be, and being, in fact, dissociated from the process of fixing remuneration for an office that he/she may have caused to be established);
whether the office will be established for a short or a long time;
the relative importance of the office;
the nature of the work to be undertaken - e.g. consultancy arrangements could be more appropriate; and
the background of the office holder - e.g. there would be no point in the referral-in of a part-time office if it had to be held by a person, such as a full-time Commonwealth employee, who was not entitled to any remuneration for holding it.

3. If an office is in the Tribunal’s jurisdiction, does the Tribunal have to determine a specific level of remuneration?

No. Part 2.3 of the Part-Time determination includes a number of daily fee rates that can be agreed to by the responsible Minister without having to lodge a submission to the Tribunal.

4. Are there formal guidelines for choosing the particular fee category under Clause 2.3 (“Offices Not Specified”) (which relates to holders of part-time office)?

No. Ministers using the Determination to determine remuneration for an office should compare the office’s functions, time commitment, necessary experience or qualifications etc with similar bodies (usually in the department).

5. Do the annual or per diem fees make provision for superannuation?

There is no superannuation component in annual or per diem fees for holders of part-time office. Queries about superannuation guarantee or employer obligations can be directed to the Superannuation Group in the Department of Finance and Deregulation.

Employer superannuation contributions are included in Total Remuneration amounts determined for PEOs and Full-Time Public Offices (from 2003).

6. Must the PAYG tax be withheld from annual or per diem fees?

The Tribunal has no role in resolving taxation obligations. Questions about taxation should be directed to the Australian Taxation Office.

7. Can a Commonwealth employee or a holder of a full-time public office receive additional remuneration for participation on a Commonwealth board?

Anyone employed on a full-time basis by the Commonwealth (i.e. a member of the Australian Public Service or Public Office Holder) may not receive remuneration for holding a part-time public office, but can receive travelling allowance associated with participation on a Commonwealth board.

Section 7(11) of the Act provides that a person is not entitled to remuneration in respect of holding, or performing the duties of, a public office on a part-time basis, if the person holds any office or appointment, or is otherwise employed, on a full-time basis in the service or employment of the Commonwealth, the Administration of a Territory, a public statutory corporation, an incorporated company referred to in paragraph 3(4)(da) or an incorporated company all the stock or share in the capital or which is or are beneficially owned by the Commonwealth or by a public statutory corporation.

Whether a State public servant can receive payment for holding a part-time public office (eg on a Federal Government board) is a matter for the relevant State government.

8. What is the TA rate for a public servant serving on a Board or Committee?

While public servants may not be paid annual or per diem fees for participation on a Board or Committee, they can receive the travelling allowance rate determined by the Tribunal.

Travelling allowance rates are contained in the Official Travel Determination.

9. Can an office holder divert payment of their remuneration to a third party?

How the fee determined by the Remuneration Tribunal for an office is actually paid is a matter between the paying agency or authority and the office holder.

If the payer is uncertain of whether the office holder's preferred method of payment affects taxation obligations, he or she should seek the advice of the Australian Taxation Office. It should be noted that the amount of the fee determined by the Tribunal is inclusive of any taxation obligation.

The Tribunal, in determining remuneration for holders of public office, understands that:

the holder of a public office (which in the Remuneration Tribunal context includes any office for which the Tribunal determines remuneration) is the individual who is appointed to that office; and
the individual holding the office has an entitlement to the remuneration determined by the Tribunal, and in performing the functions of that office the office holder earns that remuneration.

10. How can someone request a review of remuneration?

To seek a review of remuneration, a submission requesting such a review and outlining reasons must be put to the Tribunal. Guidelines are available on the website. The guidelines note that it is preferable to include an indication of support from the responsible Minister.

11. Can a submission to the Tribunal be lodged before the legislation establishing the Committee has received Royal Assent?

Yes. In that case the Tribunal may agree to make an indicative determination until the legislation is passed. Once the legislation is passed, the relevant Department should advise the Secretariat of that fact and of any amendments to the legislation. The Tribunal will issue a formal determination in due course.

12. We need remuneration for a new office determined ASAP but the responsible Minister is overseas and cannot sign the submission. What can one do?

The Tribunal will consider draft submissions, but only where the office falls automatically within the Tribunal’s determinative jurisdiction. A signed submission is required before a final determination can be made.

13. Do we have to wait for the Tribunal’s next meeting before our submission can be considered?

No. The Tribunal may consider submissions in between the holding of formal meetings if there is an urgent, real need for that to occur.

14. Is the Tribunal involved in appointment processes for Statutory Office Holders, Principal Executive Offices, Holders of Full-Time Public Office or Holders of Part-Time Public Office?

No. The Tribunal’s role is defined by the Act. It determines or advises on remuneration for a public office and has no role or authority in or over the appointment process and related policies. Questions on appointment procedures for offices considered by Cabinet should be referred to the Cabinet Secretariat in the Department of the Prime Minister and Cabinet.

15. How soon after the determination is signed can we start paying our board members? Do we have to wait for it to be tabled in Parliament?

No, you can start paying members as soon as the determination is signed or by the date specified in the determination. The only exception to this is for Judges remuneration.

16. Does the Tribunal determine fees comparable to consultants’ fees?

The rates in the Tribunal’s system are not private consultancy fees, which are negotiable by the parties and are generally higher. Note that a feature of private sector practice is to discount the daily fee where a substantial block of work is guaranteed.

In making determinations, the Tribunal considers factors such as the non-cash benefits provided and the public interest and personal status involved in holding the office. In addition, remuneration received by a holder of a part-time public office is often supplementary to his or her principal earnings. These factors have a moderating effect on the level of fees determined.

17. When does the Tribunal determine annual remuneration rather than per diem fees for a part-time office?

The Tribunal has expressed a preference to determine annual fees where possible. As a general rule the Tribunal determines:

Annual remuneration for part-time offices where the function is continuous and work load can be identified with some certainty
A per diem fee for part-time offices meeting infrequently, or with a volatile or uncertain work load.
A request to transfer from per diem to annual fees requires a submission to the Tribunal.

18. What exactly is a board member entitled to receive?

In monetary terms, only what the Tribunal determines (annual or per diem fee plus travelling allowance).

19. What is the difference between ‘business of the authority’ and a formal meeting?

See Condition of Payment of Daily Fees section in the Part-time Offices Determination.

Provided ‘business of the authority’ has been defined by the chairperson, for payment purposes there is no difference between business of the authority and a formal meeting, provided that the business/meeting is of at least 3 hours duration on any one day.

If business of the authority and a formal meeting fall on a single day, only one per diem fee is payable.

20. What is the different between ‘business of the authority’ and ‘preparation time’?

See Condition of Payment of Daily Fees section in the Part-time Offices Determination.

The Chairperson has discretion to draw a distinction. Business of the authority usually refers to formal work such as meeting with clients/stakeholders and participating in sub-committees.

The meeting fee includes a component for routine preparation time.

21. Is there an obligation to advise the Tribunal of changes such as a new appointment to an office or the resignation of an office holder?

There is no obligation to do so; however, such advice is welcomed as it assists in ensuring that correspondence to the office holder is correctly addressed.

22. What should an acting appointee be paid?

Section 33A of the Acts Interpretation Act 1901 provides that the person or body who has the power to appoint a person to act in a particular office also has the power to determine the acting appointee's remuneration and allowances unless the enabling legislation (i.e. the Act establishing the office) provides otherwise.

It is recommended that Departments/agencies seek legal advice regarding their own particular circumstances.

23. If an office in the Tribunal's jurisdiction is abolished, should the Tribunal be advised?

Yes, as a courtesy the responsible Department or agency should advise the Tribunal as soon as possible. This will enable any redundant entries to be removed from the relevant determination(s).

24. I have an office holder who does not want to get paid. Do we have to pay him/her?

A public office holder, who holds an office that has had remuneration determined for it by the Tribunal, has a legal entitlement to that remuneration, unless specifically excluded in legislation from receiving payment (being, for instance, a full-time Australian Government employee). It is the Tribunal's understanding that generally an office holder would not be able to give a legally binding waiver of their entitlement to remuneration.

25. Does the Tribunal determine remuneration for audit committee members?

The Tribunal can only determine remuneration for offices within its determinative jurisdiction (see FAQ 1). It is unlikely that an external/independent audit committee member would hold such an office.

26. Is GST included in the fees determined by the Tribunal?

The fee determined by the Remuneration Tribunal is the amount payable by the paying agency or authority in respect of the office holder's performance of the functions of the office. It is inclusive of any taxation obligation.

27. What should a Chair consider, in accordance with Clause 2.5 of the determination, when deciding whether a period of preparation time for a meeting should be counted as time spent on "business of the authority", for the purpose of calculating a daily fee?

As noted in the determination, the daily fee for a meeting includes a component to cover normal preparation time. In the ordinary course of things, meetings may fluctuate in terms of the size of the agenda or the complexity of the items considered, requiring more or less preparation time. The key here is the phrase in Clause 2.5 of the determination: "so unusual". It means that preparation time should only be counted as "business of the authority" when it goes well beyond what is normally required. This would generally only be expected to occur in authorities/agencies whose activities are characterised by unforeseeable volatility demanding short-term responses in circumstances in which the agency concerned has the primary responsibility for determining and implementing the necessary action.

28. What is considered "reasonable travelling time" for the purpose of calculating a daily fee?

Travelling time should only be included in a 3 hour period where a meeting requires travel away from the metropolitan area of the office holder's home city/town. This is a matter for the discretion of the Chair or nominated presiding officer.

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