Frequently Asked Questions
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List of Frequently Asked Questions
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Commonwealth defined benefits scheme rules provide that an office holder's salary for superannuation purposes will be grandfathered at the highest rate applying in the year to the member's last birthday, increased annually in accordance with changes to the Average Weekly Ordinary Time Earnings (AWOTE) unless a higher superannuation salary is applied.
To ensure an office holder’s superannuation salary conforms with scheme requirements, the Tribunal will, upon request, agree to a higher personal superannuation salary rate for the office holder. A request to the Tribunal can be included in a remuneration submission by a Minister or employing body or notified to the Tribunal’s Secretariat by a relevant senior officer of the agency with access to the officer holder’s superannuation salary history.
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 (e.g. a full-time Australian Public Service 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, or have it paid to another person or body.
How the fee determined by the Tribunal for an office is paid is a matter between the paying agency and the office holder.
Any taxation withholding obligation must be met from the fee payable in respect of the office. If the payer is not certain how the office holder's preferred method of payment affects taxation obligations, he or she should seek the advice of the Australian Taxation Office.
Sub-clause 2.12.1 of the PEO determination sets out the maximum performance pay that may be available. However it should be noted that there are some instances where the Tribunal has consented to variations in relation to particular offices. These variations include:
* instances where access to performance pay has been removed, usually in association with an increase in available fixed remuneration; and
* instances where the Tribunal has consented to a higher potential performance pay percentage, in special circumstances.
It is an employing body's responsibility to maintain records of correspondence that includes the Tribunal's consent to such variations and ensure its decisions are consistent with the PEO Determination and any variations to which the Tribunal has consented.
The Tribunal regularly reminds employing bodies of these arrangements.
In monetary terms, an office holder is entitled to the fees determined by the Tribunal in the Part-time Office determination plus travel allowance (TA) where an overnight stay is necessary.
The rate of TA varies depending on the Travel Tier assigned to the office, or, in some cases, the office holder. Current rates and conditions are set out in the Official Travel determination.
Office holders may also have an entitlement to superannuation under separate superannuation legislation.
The Tribunal has no role in determining what should be provided to office holders with respect to business support. This is a matter for employing bodies.
While full-time Commonwealth employees may not be paid annual or per diem fees for fulfilling their duties as a part-time office holder, they can receive the travelling allowance rate determined by the Tribunal.
Travelling allowance rates are contained in the Official Travel determination.
The Part-time Office determination includes a definition of official travel time. It is generally associated with travel where an office holder is entitled to claim travelling allowance (e.g. interstate travel). It does not include normal commuting time (i.e. the time spent travelling between an office holder's home and principal place of work).
For offices other than Judicial Offices each Tribunal determination comes into effect from a date specified in the determination. Where no date is specified, the date of effect is the day after the determination has been registered with the Federal Register of Legislation.
A remuneration increase for holders of Judicial Office cannot be passed on until after the disallowance period of the relevant determination has passed. In both the House of Representatives and the Senate, the disallowance period is 15 parliamentary sitting days after the determination has been tabled.
These arrangements are necessary because sub-section 72(iii) of the Constitution expressly prohibits diminution of a Judge's remuneration while the Judge remains in office - if the increase was put into effect immediately, the Parliament's right to disallow the determination would effectively be removed.
After the disallowance period has passed, any remuneration increase is then paid to Judicial Officers, with any necessary arrears paid from the date the Tribunal determined as the effective date of the increase.
Information about the Tribunal's four part-time remuneration models may be found on the Tribunal's website (under the 'background area' of the Part-time Office page on the Tribunal’s website). This includes information about some of the Tribunal's considerations in applying the models.
The remuneration models are:
- annual fee
- daily fee
- base (annual) fee and daily meeting fee
- annual meeting fee and additional daily fee
Where a Minister or employing body believes that a different model from that determined by the Tribunal would better suit their part-time offices, a submission should be made to the Tribunal.
The Tribunal may determine recreation leave for full-time holders of public office (but not part-time) where the enabling legislation (i.e. the Act establishing the office) states that the Tribunal will determine the matter.
It cannot determine other types of leave, such as personal and miscellaneous leave, for public office holders other than Secretaries of Departments.
The Tribunal has more general powers for Principal Executive Offices (PEOs) and for Judicial and Related offices - it can determine other types of leave as outlined in Part 5 of the PEO determination and in Part 2 of the Judicial and Related Offices determination.
There is no obligation to advise the Tribunal. However, we appreciate such advice as it ensures that correspondence to office holders is correctly addressed and, in the case of a resignation, that any person-specific clauses are removed from the relevant determination.
Where a new Principal Executive Office (PEO) appointment is made, the Tribunal must be advised on the remuneration determined by the employing body for that office holder within 4 weeks of that determination being made.
Unlike other public offices, remuneration increases for holders of Judicial Offices cannot be put into effect until after the disallowance period of the relevant determination has passed.
The Tribunal flags those determinations that are still within the 15 sitting day disallowance period to alert paying agencies not to pass on any increases to Judicial Offices until the disallowance period has passed.
Generally, the Tribunal has no authority in relation to the remuneration of acting appointees.
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.
Departments/agencies may need to seek their own legal advice regarding their particular circumstances.
Yes, the responsible Department or agency should advise the Tribunal at firstname.lastname@example.org as soon as possible so that redundant entries may be removed from the relevant determination(s).
The Tribunal can only determine remuneration for offices within its determinative jurisdiction. Where office holders within the Tribunal's jurisdiction are also audit committee members the Tribunal may determine additional fees dependent on the circumstances. This would require a case to be made, via a submission, to the Tribunal.
No - TA is an allowance to meet expenses incurred by the office holder when required to travel to perform his/her official duties.
Total remuneration (TR) is defined in the relevant determination applying to the particular office holder (i.e. Full-time Offices, Principal Executive Offices, Specified Statutory Offices, Departmental Secretaries and Judicial and Related Offices).
An office holder's cash salary is the component of TR that remains when all other payments and benefits, including the Employer Superannuation Contribution, are honoured. Cash salary should not be confused with the superannuation salary determined by the Tribunal for members of defined benefit schemes.
Cash salary equals TR, less the Employer Superannuation Contribution, less all payments and benefits included in the office holder's remuneration package (other than those specifically excluded in accordance with the relevant determination).
The process is outlined in the diagram below (note that slightly different superannuation arrangements apply to PEOs - see "How is cash salary calculated for a PEO"):
The Employer's Superannuation Contribution*
Other payments and benefits e.g. allowances, motor vehicle, parking, fringe benefits tax and any salary sacrifice payments e.g. additional superannuation contributions.
* The Employer's Superannuation Contribution is defined in the Tribunal's determination.
Essentially it is:
In the normal course of business, commitment to meetings may fluctuate in terms of the size of the agenda or the complexity of the items considered. This may impact on the preparation time required of an office-holder.
Regardless of this fluctuation, time spent preparing for a formal meeting does not ordinarily attract a separate payment. The fee that is payable on a meeting day has already been determined to take account of the time spent preparing for a meeting.
The Part-time Office determination does provide that "Time spent by the office holder preparing for a formal meeting that the Chair considers is excessive to normal preparation time may be treated as 'authority business'". This means that only where preparation time goes well beyond what is normally required of the office holder could it be considered excessive.
The Tribunal does not envisage circumstances where this would be a regular occurrence. Where office holders do regularly spend excessive time preparing for meetings, the authority may wish to consider whether another remuneration rate, or model, may better suit the functions of the office. Any change would require a submission to the Tribunal.
Parking provided at the main office location of a Secretary or full-time office holder, where there is a cost to the Commonwealth, is regarded as a benefit to that office holder and the value, including any fringe benefits tax, is therefore part of the office holder’s total remuneration. This applies even where the office holder doesn't have a Commonwealth provided vehicle.
A Class B parking permit to allow short stay parking in Commonwealth designated spaces would normally be regarded as a business support expense to the Department or agency and therefore not a benefit to the office holder.
Yes. The Tribunal may agree to provide indicative advice on remuneration pending passage of the legislation. Once the legislation has passed, the relevant Department should advise the Tribunal’s Secretariat of that fact and of any amendments to the legislation during its passage. The Tribunal will then issue a formal determination.
Part-time fees do not include a superannuation component. Any superannuation obligation, including superannuation guarantee requirements that must be met, is therefore paid on top of the Tribunal's determined fee.
Any enquiries about superannuation liabilities should be directed to the Superannuation Branch in the Department of Finance (email@example.com) or the Australian Tax Office. Enquiries on the superannuation arrangements for the Federal Judiciary can be directed to JudicialSchemes@finance.gov.au.