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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.

Are Tribunal determinations legislative instruments?

With the exception of the determinations relating to Departmental Secretaries, Tribunal determinations are legislative instruments, which means that, under sub-section 38(1) of the Legislation Act 2003, they are required to be tabled in both houses of Parliament by the Office of Parliamentary Counsel within 6 sitting days after the determination has been registered on the Federal Register of Legislation.

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.

What remuneration and allowances do board and committee members receive?

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.

Can a Commonwealth employee, Secretary or a holder of a full-time public office receive additional remuneration in relation to their appointment as a part-time public office holder?

No. A person employed on a full-time basis by the Commonwealth (e.g. an Australian Public Service employee or a public office holder) may not receive remuneration for holding a part-time public office but can receive travelling allowance for official travel associated with fulfilling the requirements of that office.

The legislative basis for this is sub-section 7(11) of the Remuneration Tribunal Act 1973 (the Act). The restriction also applies to a person holding any office or appointment or who 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) of the Act 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 (e.g. on a Federal Government body) is a matter for the relevant State government.

Can a part-time office holder refuse payment or divert payment of his or her fees to a third party?

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.

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

The fee determined by the Tribunal is the gross amount payable by the paying agency or authority in respect of the office holder's performance of the functions of the office. Paying agencies need to ensure that any PAYG taxation payable is appropriately withheld.

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

Can PEOs receive performance pay?

Performance pay arrangements are set out in the PEO determination and the Tribunal’s Performance Remuneration Guidelines.

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.

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