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When does an office fall within the determinative jurisdiction of the Tribunal?

The Tribunal is required to determine remuneration for offices that meet the definition of "public office" in sub-section 3(4) of the Remuneration Tribunal Act 1973 (the Act) along with a range of other offices and appointments such as Departmental Secretaries, Principal Executive Offices and Members of Parliament. 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. Legislation that 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.

Some offices that are not automatically in the Tribunal's jurisdiction (because they are not created in legislation) can be placed in the Tribunal's jurisdiction. These are most commonly appointments made by the Governor-General or a Minister of State.

This process is commonly known as ‘referral-in’. Referral-in occurs when the Minister responsible for the Tribunal (the Minister Assisting the Prime Minister for the Public Service) writes 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.

The Tribunal does not determine its own remuneration, that is a matter for Government.

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

Yes, noting different arrangements apply in respect of Principal Executive Offices (PEOs) – see the PEO page on the Tribunal’s website for more information.

In order to have the Tribunal make a determination for an office, a submission must be made to the Tribunal.

If an office in the Tribunal’s jurisdiction is abolished, should the Tribunal be advised?

Yes, the responsible Department or agency should advise the Tribunal at enquiry [at] remtribunal.gov.au as soon as possible so that redundant entries may be removed from the relevant determination(s).

What should an acting appointee be paid?

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.

Is there an obligation to advise the Tribunal of a new appointment to an office or the resignation of an office holder?

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.

When do changes to a determination, such as a remuneration increase, take effect?

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.

What happens if a determination is disallowed?

Tribunal determinations, except those specifically applying to Departmental Secretaries and Members of Parliament, are disallowable instruments under the Legislation Act 2003.

This means that either House of Parliament may, within 15 sitting days after a disallowable determination has been tabled, pass a resolution 'disapproving' the determination. If a determination that is disapproved (disallowed) has already come into operation, the determination does not have any force or effect on or after the day on which the resolution was passed.

However, disallowance does not apply retrospectively. This means, for example, that office holders who have already received a pay rise do not have to repay any additional remuneration they have already received. However, from the date of disallowance, their remuneration reverts to its previous level.

What are principal determinations, amending determinations and consolidated determinations?

Principal Determinations

When the Tribunal makes a comprehensive determination relating to a category of offices (e.g. part-time offices) it is called a 'principal' determination and entirely replaces any earlier principal determination.

A principal determination usually covers a group of offices within the Tribunal's jurisdiction or a specific subject area (such as recreation leave). The Remuneration Tribunal Act 1973 and, for Members of Parliament, the Parliamentary Business Resources Act 2017, require the Tribunal to make determinations in relation to some remuneration matters (as opposed to some subject areas such as recreation leave) at intervals of no more than a year. This means that many of the Tribunal's principal determinations are in place for no more than 12 months.

All Tribunal determinations are registered on the Federal Register of Legislation (FRL) other than those relating to Secretaries, which are gazetted.

Amending Determinations

An amending determination inserts changes into a principal determination. Examples are inserting new offices into a principal determination, modifying provisions for access to particular conditions or a change in a remuneration amount for an office. An amending determination can include a number of changes to provisions in different principal determinations.

Consolidated Determinations

Where an amending determination has been issued, a consolidated determination needs to be made.  A consolidated determination, also known as a compilation, is essentially a principal determination updated to include the provisions of any amending determinations. The consolidation records the reference number of the amending determination and includes the date of effect of the amended provision. As most amending determinations must be registered on FRL before a consolidated determination can be made (and then also registered with FRL), there is a usually a delay of between 1 and 2 weeks between the time the Tribunal signs an amending determination and the registration of the consolidated determination.

Determinations on the Tribunal’s website

The determinations that contain the current remuneration and conditions for each group of office holders are listed on the relevant office page.  This could include either a consolidated determination (if there have been amending determinations) or a principal determination (where there have been no changes made).  As it usually takes a week or two for a consolidated determination to be made, at times an amending determination may also display on the office page. Once the amendment has been incorporated into a consolidated determination, the amending determination will be moved to the Document Library on the Tribunal’s website.

Can Tribunal determinations be disallowed?

All Tribunal determinations are disallowable instruments except those relating to Departmental Secretaries and Members of Parliament.

Either House of Parliament may, within 15 sitting days after a determination has been tabled, pass a resolution 'disapproving' the determination. If a determination that is disapproved (disallowed) has already come into operation, the determination does not have any force or effect on or after the day on which the resolution was passed. However, disallowance does not apply retrospectively. This means, for example, that affected office holders who have already received a pay rise do not have to repay any additional remuneration they have already received. However, from the date of disallowance, their pay would revert to what it was previously.

Special arrangements apply for Judicial Offices within the Tribunal’s determining jurisdiction. Determinations for Judicial Offices do not come into effect until after the 15 sitting days disallowance period has passed. This means, for example, that if the Tribunal determines a remuneration increase for Judges, they will not receive their increased pay until after the disallowance period. Any remuneration increase would be backdated to the date of effect specified in the determination. These arrangements are necessary due to sub-section 72(iii) of the Constitution, which expressly prohibits diminution of a Judge's remuneration while the Judge remains in office.

What does it mean when a determination is flagged "in disallowance period" on the Tribunal website?

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.

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