Frequently Asked Questions
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List of Frequently Asked Questions
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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.
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.
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.
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.
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.
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.
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.
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.
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.
Performance pay arrangements are set out in the PEO determination and the Tribunal’s guide to the PEO structure.
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.
The Tribunal does not routinely set fees for sub-committee work. Often sub-committees are simply one way that boards and other entities choose to allocate the workload in relation to the primary functions of that entity.
The Tribunal has set audit fees for some bodies recognising that there are often significant responsibilities and additional commitment related to these committees. The Tribunal has also set additional fees for a small number of other sub-committees of governing boards which undertake or support a key component of the board’s governance responsibilities.
Where it is considered that additional fees are warranted a submission can be made to the Tribunal. The submission would need to comment specifically on why the Tribunal should not consider the functions of the sub-committee to be part of the entity/board's usual functions.
The following points should be addressed in a submission, i.e. whether:
- the committee has formal ongoing governance functions;
- the committee’s work represents a key component of the board’s governance responsibilities;
- the committee’s work has a significant impact on organisational strategy and viability;
- the fee paid to board members is insufficient compensation for the level of responsibility and commitment required of sub-committee members; and
- additional fee arrangements are currently in place, or proposed, for audit committee members.
It would be appropriate to reduce the reasonable daily overseas meal allowance amounts determined by the Australian Taxation Office by 50 per cent where dinner has been provided or paid for by an entity other than the office holder, or 25 per cent in the case of either breakfast or lunch. Alternatively, it would also be permissible for office holders to comply with any relevant administrative guidelines put in place for employees in their agency where these are not inconsistent with 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).
A PEO Notification is a form to assist employing bodies to fulfil their obligations to notify the Tribunal within 4 weeks of a change to a Principal Executive Officer's (PEO's) remuneration (including payment of performance pay) or other terms and conditions.
The form also provides the Tribunal with feedback on how a PEO's employing body applies the discretionary elements of the remuneration package. The form can be found on the PEO 'Background' page on the Tribunal's website.
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.
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.
For each Principal Executive Office (PEO) the Tribunal sets a total remuneration reference rate establishing the parameters within which the relevant employing body determines total remuneration (TR).
The employing body also determines the superannuation salary for a PEO who is a member of a defined benefits scheme. This may be up to 73% of TR (unless the Tribunal has consented to other arrangements for a specific office holder).
The Employer Superannuation Contribution is a compulsory component of TR and the amount actually contributed must comply with the employer's legal obligations under relevant legislation.
Defined benefit scheme members
For a PEO who is member of a defined benefit scheme, the Employer Superannuation Contribution, for the purpose of calculating the cash salary component of TR, is usually a notional amount calculated as 15.4% of the office holder’s superannuation salary. The value of the Employer Superannuation Contribution may be less than 15.4% of superannuation salary if there is actuarial evidence that the cost to the agency (including the cost of the productivity component) is lower that 15.4%.
The value of the notional Employer Superannuation Contribution changes whenever an office holder’s TR is adjusted.
However, contributions salary, on which personal contributions are based, generally does not change until the office holder’s birthday and should be administered according to the rules of the scheme.
Note that actual employer payments made by a Department or agency to the superannuation scheme in respect of office holders’ superannuation (based on advice from the Superannuation Branch of the Department of Finance) vary according to demographics and scheme membership in the particular Department or agency. Because of this the Tribunal has determined that a standard notional contribution rate (15.4%) should apply to all office holders who are members of defined benefit funds.
Accumulation Fund members
See the FAQ “How is the Employer Superannuation Contribution calculated for an office holder who is a member of an accumulation scheme such as the PSSAP?”
Total remuneration (TR) is defined in the PEO determination. It represents the total value of all cash and non-cash benefits available to the office holder (excluding performance pay, relocation allowances, travelling allowances and compensation for early loss of office). 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 employing body for office holders who are members of defined benefit schemes.
To determine cash salary
The Employer's Superannuation Contribution*
Other benefits e.g. motor vehicle and parking, fringe benefits tax and any salary sacrifice payments, such as additional superannuation contributions.
equals: Cash Salary
* The Employer's Superannuation Contribution is defined in the Tribunal's PEO Determination.
Essentially it is:
- for members of PSSAP - 15.4% of ordinary time earnings (OTE);
- for members of other accumulation schemes - the compulsory employer superannuation contribution that must be made to the fund; and
- for members of a Commonwealth defined benefit schemes (e.g. CSS/PSS) - a notional value calculated as 15.4% of the Superannuation Salary (i.e. normally 15.4% of 73% of TR.Notes re Superannuation Salary:
- The employing body is responsible for determining superannuation salary for office holders who are members of defined benefit schemes. The PEO determination provides that the maximum superannuation salary that may be determined by an employing body is 73% of TR. An exception can occur where the Tribunal has given express written consent to an alternative ‘grandfathered’ arrangement for an individual office holder who has a (pre-existing) higher salary for superannuation purposes under the defined benefit scheme rules (see FAQ “What happens if an office holder has an existing superannuation salary that is higher than the superannuation salary that applies to the office?”).
- For PEOs who are defined benefit members the value of the Employer Superannuation Contribution may be less than 15.4% of superannuation salary if there is actuarial evidence that the cost to the agency (including the cost of the productivity component) is lower that 15.4%
The Official Travel determination provides for the payment of an allowance to the office holder to cover reasonable expenses associated with official travel, i.e. accommodation, meals and incidentals, and it is a matter for the office holder as to how that allowance is to be used. An office holder’s TA must be paid in full.
However, in the event that the cost of accommodation is met by an entity other than the office holder, only the meals and incidentals component of TA is payable. An example of this might include where an office holder attended a conference and the cost of accommodation was met by the Commonwealth as part of the conference package.
In applying the provisions of the Official Travel determination, office holders and agencies should have regard to the set of general principles included in that determination.